Garland's vow to protect women's right to abortions more bark than bite, analysts say
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WASHINGTON - Attorney General Merrick Garland's vow to protect women's right to choose abortion while officials explore challenging a Texas law that severely restricts the procedure offers more bark than bite, legal analysts say, with abortion rights proponents pressing for more aggressive steps.
Democrats on the House Judiciary Committee called Tuesday for Garland to take the dramatic step of criminally prosecuting those who seek to enforce the law, which effectively bans abortions as early as six weeks into pregnancy. Republicans and supporters of the measure, meanwhile, decried what they saw as Justice Department overreach to block a law where the Supreme Court would not.
Responding to the Texas law, Garland said in a statement Monday that while the Justice Department explored its legal options, officials would "continue to protect those seeking to obtain or provide reproductive health services."
Garland cited a 1994 law known as the Freedom of Access to Clinic Entrances (FACE) Act, which bans people from using the threat of physical force to interfere with those seeking an abortion. But that would not help combat the Texas measure, which imposes potential financial liability on those who assist a woman in obtaining an abortion, according to legal analysts and the law's opponents.
"While it's encouraging that they're focused on this issue and the problems of the law, I don't know that that statement or enforcement of the FACE Act will make a material difference in Texas right now," said Jenny Ecklund, a lawyer representing several people and advocacy organizations that help women access abortions and have won restraining orders in local courts in advance of the ban taking effect. "Now the issue is providers have stopped providing."
A Justice Department official, speaking on the condition of anonymity to discuss internal deliberations, said that in emphasizing the FACE Act, the department was attempting to deter people who, in trying to enforce the Texas law, might block access to facilities.
Department officials have been discussing other ways to get involved in recent days, and Garland said they had reached out to U.S. attorneys' offices and FBI field offices in Texas and across the country "to discuss our enforcement authorities." White House press secretary Jen Psaki said the White House Counsel's Office and the Department of Health and Human Services also were "continuing to look for ways to expand women's access to health care."
Opponents of the Texas law argue it is unconstitutional on multiple levels, but it is constructed in such a way that makes legal challenges difficult. The measure empowers individuals, rather than the government, to enforce it for a potential $10,000 payout if they can win a civil suit.
The Supreme Court allowed the law to take effect earlier this month, and opponents have said abortion providers appeared so far to be complying to avoid civil liability. Eventually, it is possible someone will defy the ban and get sued, creating a case to test its constitutionality.
Democrats on the House Judiciary Committee wrote to Garland on Tuesday, asking him to consider "the criminal prosecution of would-be vigilantes attempting to use the private right of action established by that blatantly unconstitutional law," known as Senate Bill (SB) 8.
"We were encouraged by your recent statement that the Department 'is deeply concerned about Texas SB 8' and that it is 'evaluating all options to protect the constitutional rights of women, including access to an abortion,' " the Democrats wrote. "Two generations of women have come to rely on the right to choose an abortion. That choice is deeply private and should not in any way be intruded upon by any third party, let alone a vigilante seeking a payday from the state."
A Democratic aide said Justice Department officials have privately told House Democrats that the agency will be "extremely forward leaning" in moving to protect abortion rights in Texas, and that lawmakers expect Garland to go beyond the potential use of the FACE Act that was included in his statement Monday.
Though government lawyers did not share any specific plans, this person said Democrats are "focused on the potential for criminal prosecutions" for anyone who attempts to punish abortion providers for assisting in the procedure after the sixth week of pregnancy.
The aide spoke on the condition of anonymity to discuss private deliberations.
Garland's statement had drawn condemnations from Rep. Matt Gaetz, R-Fla., who said on Twitter, "It is up to COURTS - not the executive branch - to determine whether the Texas law impairs constitutional rights," and the antiabortion group that helped draft the bill.
But one of the antiabortion organizations backing Texas's six-week ban said the federal law Garland cited "does not apply in this context."
"If violating the FACE Act is all the DOJ has come up with to block the Texas Heartbeat Act, that's good news," Chelsey Youman, Texas state director of Human Coalition Action, said in a statement. "SB 8 is a peaceful and Constitutional law that uses civil lawsuits to protect innocent children from death by abortion. The FACE Act, which prohibits physical force or threats to keep women from entering abortion clinics, does not apply in this context."
Laurence Tribe, an emeritus Harvard Law School professor and constitutional law expert, said Garland's emphasis on the use of the FACE Act seemed "quite irrelevant."
"I did not think that was a particularly helpful thing for him to announce. The threats to the women who seek abortions in Texas are not physical threats to them or the property of the clinics," Tribe said. "They are threatened with bankruptcy. It's ironic that the FACE Act would be helpful if someone were to knock the door down, but not if they were to bring the whole house down."
But Tribe said he is hopeful that the Justice Department and White House counsel Dana Remus will "come up with something much more substantial." He pointed to a section of the criminal code, designed to go after the Ku Klux Klan, that makes it a crime to willfully deprive individuals "of any rights, privileges, or immunities secured or protected by the Constitution" if that person is acting "under color of law."
In Tribe's view, which he laid out in a Washington Post column, the Texas law has turned individuals into private attorneys general who are "acting under color of state law" when they seek to collect $10,000 in penalties.
"Unless and until Roe v. Wade is overruled, they unmistakably intend to prevent the exercise of a constitutional right," Tribe wrote, referring to the landmark Supreme Court decision that guarantees a woman's right to chose to end her pregnancy before viability, usually between 22 and 24 weeks.
Separately, Tribe suggested the Justice Department could ask a federal court in Texas to block the Texas law from being enforced. Under the All Writs Act, federal courts can issue certain orders "necessary or appropriate in aid of their respective jurisdictions."
Melissa Murray, an expert on constitutional law and reproductive rights, said that it is "not inconsequential that DOJ is stepping in," but that the action so far is largely a "symbolic gesture."
The infringement of women's constitutional rights with a law designed to withstand a preemptive legal challenge requires a commensurate, innovative response, she said. Murray pointed to Tribe's proposal to use the post-Civil War statute drafted to protect the civil rights of African Americans to protect a woman's right to choose an abortion.
"What Texas did is so unbelievably cynical and canny, why not try whatever you can to fight it? If they are willing to push the envelope, then those who favor reproductive rights should be willing to push the envelope, too," Murray said.
Ecklund said the Justice Department could mount some kind of civil rights challenges against people trying to enforce the law, and even if that was not immediately successful, doing so could push the dispute through the courts faster. In theory, the government also could provide some kind of backstop for the financial liability providers and others might face, though Ecklund said she did not see a clear mechanism for the Justice Department to do that.
"They're hampered by the same mechanism in the law that providers are in that, without a state actor currently enforcing the law, there's not an obvious target for them, either," Ecklund said.
Ecklund said if the law is ultimately declared unconstitutional, it might come after abortion providers and those who help women access them already have been driven out of business - which she said seemed to have been the architects' goal.
"I'm cynical about this. But I will tell you my firm belief is that they don't care if it's declared unconstitutional, because their goal is to run everyone out of business beforehand," Ecklund said, adding, "I'm not sure I fully comprehend what the DOJ is proposing to do with regard to it, but I don't think that is going to be sufficient to provide any protection under the law, given the state of where things sit right now in Texas."
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