Foes of the new Texas law that bans most abortions have been looking to the Democratic-run federal government to swoop in and knock down the most restrictive abortion law in effect in the country. But it's nowhere near that simple.
President Joe Biden , who denounces the law as “almost un-American,” has directed the Justice Department to try to find a way to block its enforcement. Attorney General Merrick Garland says his prosecutors are exploring all possible options. But legal experts warn that while the law may ultimately be found unconstitutional, the way it's written means it'll be an uphill legal battle.
Known as SB8, the new state law prohibits abortions once medical professionals can detect cardiac activity — usually around six weeks, before some women know they’re pregnant. Courts have blocked other states from imposing similar restrictions, but Texas’ law differs significantly because it leaves enforcement to private citizens through civil lawsuits instead of criminal prosecutors.
Pressure is mounting not only from the White House but also from Democrats in Congress, who want Garland to somehow take action. Nearly two dozen lawmakers wrote to him Tuesday calling for the “criminal prosecution of would-be vigilantes attempting to use the private right of action established by SB8.”
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But what action can the Justice Department take? How?
So far, the attorney general has said only that federal officials will not tolerate violence against anyone who is trying to obtain an abortion in Texas. At the forefront of that plan is enforcement of the Freedom of Access to Clinic Entrances Act.
That law, commonly known as the FACE Act, normally prohibits physically obstructing access to abortion clinics by blocking entrances or threatening to use force to intimidate or interfere with someone. It also prohibits damaging property at abortion clinics and other reproductive health centers.
Garland says that while his department is still urgently exploring options to challenge the state law, Justice will enforce the federal law “in order to protect the constitutional rights of women and other persons, including access to an abortion.”
However, that federal action could be limited by the fact that the act is geared more toward physical acts of intimidation or violence than lawsuits, said Mary Anne Franks, a constitutional scholar and professor at University of Miami School of Law.
“The nefarious cleverness" of the Texas law is that "you can’t do anything until someone actually attempts to use this law,” she said. “And that’s really late in the game.”
And even if an abortion provider — or people who help a woman get an abortion — should successfully defend a lawsuit, that wouldn't block a stack of future suits. A Texas judge's decision last week temporarily shielding some some abortion clinics from being sued by the state’s largest anti-abortion group, for example, didn't affect any other groups.
“That raises real concerns about any efficacy of any of the actions DOJ could take,” Franks said.
Still, there are tools the federal government could use, she said. Prosecutors could bring criminal charges under civil rights measures originally written to root out the Ku Klux Klan. Those say that private citizens working with the state to deprive people of their constitutional rights could face criminal violations.
There’s also a tool on the civil side, called a Section 1983 action, that allows people to sue someone else who is blocking them from exercising their constitutional rights. Those civil lawsuits must be filed by the person under attack rather than the government, but federal attorneys could join suits already filed, she said.
Those actions, she said, could have their own chilling effect on abortion foes: People opposed to abortion who might want to sue providers might reconsider if they could potentially face federal criminal charges.
As for more direct action against the Texas law, legal experts say the Justice Department will likely work to help overturn it with a so-called friend-of-the-court brief, which could help bolster an already existing lawsuit challenging the state law.
Jonathan Turley, a constitutional law professor at George Washington University Law School, sees the law as likely to be eventually struck down in court, since it prohibits abortion long before the fetus is viable outside the womb.
“It’s very likely it will be found unconstitutional. The framers, the drafters themselves understood that ... they have set a line well below existing case law for banning abortions,” he said. “Courts are likely to make fast work of the Texas law.”
But if Democrats take action in Congress aimed at preserving access to abortion on the federal level, as some are calling for, he warned it could end up backfiring since there’s existing case law establishing that states can make laws related to the procedure.
Such a federal law, if passed by Congress, would almost certainly end up in court and could ultimately lose ground for abortion-rights supporters if a ruling is made that strengthens the states’ ability, he said.
Meanwhile, the Texas law's citizen-enforcement mechanism is something Democrats may not want to see limited widely either, since the concept is also a key piece of enforcing environmental laws. Courts have limited people’s ability to file civil suits before, as in defamation suits that could run afoul of freedom of speech.
The Supreme Court declined to block the Texas law in a 5-4 decision, though it did not rule on whether the law itself was constitutional.
Turley argues a graver threat to abortion access is an upcoming case on the Supreme Court docket: Mississippi is asking to be allowed to enforce an abortion ban after 15 weeks of pregnancy.
By taking up that single question, the justices will be considering whether states can impose limitations on abortion before the fetus is viable outside the womb. There are no other questions at play, no other ways the case could be more narrowly decided. If the high court sides with Mississippi, that would open the door to other states passing similar laws.
“That is a more important threat,” he said.
Whitehurst reported from Salt Lake City.