Attorney General Merrick Garland announced Monday the Justice Department would help women seeking abortions in Texas after a state law went into effect last week banning abortions after a fetal heartbeat is detected.
President Biden directed his administration to look for ways to counter the law, known as SB 8, after the Supreme Court declined to block its enforcement last week.
“We will continue to protect those seeking to obtain or provide reproductive health services,” Mr. Garland said Monday in a statement.
The attorney general said his department is still exploring all options, but plans to use the 1994 Freedom of Access to Clinic Entrances (FACE) Act to help protect abortion clinics in Texas.
The law, signed by former President Bill Clinton, prevents clinics from property damage or having the entrance blocked, and patients intimidated. It was enacted after several violent incidents by pro-life activists.
A first violation can result in a $100,000 fine. The fines increase depending on the severity of the offenses.
“The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack. We have reached out to U.S. Attorneys’ Offices and FBI field offices in Texas and across the country to discuss our enforcement authorities,” Mr. Garland said. “We will not tolerate violence against those seeking to obtain or provide reproductive health services, physical obstruction or property damage in violation of the FACE Act.”
House Judiciary Committee Chairman Jerrold Nader, New York Democrat, along with nearly two dozen Democrats sent Mr. Garland a letter on Tuesday urging him to use the full force of his department to counter any lawsuits against women and abortion providers.
“Because the Department cannot permit the second largest state in the Nation to deprive women of their constitutional rights by outsourcing the enforcement of SB 8 to private individuals, we urge you to take legal action up to and including the criminal prosecution of would-be vigilantes attempting to use the private right of action established by that blatantly unconstitutional law,” they wrote in the letter.
Josh Blackman, a professor at South Texas College of Law, said he doesn’t see how the FACE Act would apply to the new Texas law.
“Following a state law and filing a civil suit is not threatening the obstruction of access to a clinic. I think Garland has in mind people standing outside clinics, and recording who is going in. Those activities could implicate FACE if they are not done carefully,” Mr. Blackman said.
Ilya Shapiro, vice president of the Cato Institute, also said he didn’t see how the FACE Act is “relevant” unless violence or intimidation become a factor.
“This seems to be more virtue-signaling than anything else. Frankly, I’m surprised that, nearly a week after SB 8 went into effect, its opponents haven’t filed a test case against this. The litigation (non-)strategy is baffling,” Mr. Shapiro said.
The Supreme Court divided 5-4 last Wednesday, leaving the Texas law in place while litigation by pro-choice groups challenging the law continues in the lower courts.
The justices did not resolve whether the law halting abortions after a fetal heartbeat is detected was constitutional. The court noted that the abortion providers fighting the law’s enforcement sued defendants who are not likely to enforce the law. Lower courts are still weighing if the law runs afoul of the Constitution.
Mr. Biden called the high court’s move “an unprecedented assault on a woman’s constitutional rights under Roe v. Wade, which has been the law of the land for almost fifty years.”
Chief Justice John G. Roberts Jr. and the three Democratic appointees — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — would have blocked the law while the case continued in the lower courts.
The law at issue prohibits abortions after six weeks of gestation. Abortion providers challenged the law on an emergency appeal at the Supreme Court last week, arguing that most women do not even know they are pregnant at that time.
The Texas law is unique in that it allows private citizens — not government officials — to sue abortion providers for violating the ban, in a move to make a legal challenge harder to lodge.
The Center for Reproductive Rights, the American Civil Liberties Union and allied groups launched a lawsuit this year to block the legislation, saying it would force abortion providers to spend massive amounts of money defending themselves in court and would subject them to harassment, effectively overturning the constitutional right to abortion.
After lower courts refused to issue an injunction, the law’s opponents sought review from the high court but the justices’ move on Wednesday allowed the law to take effect. Abortion providers in the state said they started turning people away at midnight on Sept. 1 to abide by the law.
Critics argue that the Texas restrictions would ban roughly 85% of abortions in the state, causing clinics to close.
They’re suing a number of defendants including state judges, clerks and Texas Attorney General Ken Paxton.
Texas Republican Gov. Greg Abbott signed the legislation in May. Anyone who successfully sues someone who assists in an abortion after six weeks would be eligible to receive up to $10,000 to cover their legal expenses.
The Texas defendants filed court papers with the high court, arguing that the abortion providers lack standing to bring the lawsuit because they can’t show the defendants have caused them harm sufficient to get into court.
Since the high court’s move, a state judge in Austin issued a restraining order against Texas Right to Life, blocking the organization from suing a Texas abortion clinic. Though, the move did not block the law altogether.
More than half a dozen states have tried to ban abortion after six weeks in the past, but none of those laws have gone into effect, according to the Guttmacher Institute, a pro-choice research group.
Texas has attempted to pass strict abortion restrictions in the past.
In 2016, the high court struck down some of the state’s requirements on abortion providers but more than half of the state’s abortion clinics had to close before the justices stepped in, according to The Associated Press.
Meanwhile, blue states have gone the opposite route with New York and Virginia loosening requirements in recent years for women to obtain abortions.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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