Those fighting against the new Texas abortion law that effectively bans the majority of abortions have been looking to the federal government to knock down the new law. However, it is not that simple, legal experts have warned.
Legal experts have said that while the law may ultimately be found to be unconstitutional, the way it is written will mean an uphill legal battle.
Known as SB8, the new state law prohibits abortions after six weeks, which is before most women know that they’re pregnant. Courts have blocked other states from imposing similar restrictions, but Texas’ law differs because it leaves enforcement up to private citizens through civil lawsuits, not criminal prosecutors.
Attorney General Merrick Garland said his prosecutors are exploring all possible options. Pressure is mounting for action from Garland, including from President Biden, who denounced the law as “almost un-American.” Nearly two dozen lawmakers wrote to Garland this week calling for the “criminal prosecution of would-be vigilantes attempting to use the private right of action established by SB8.”
So far, Garland 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 this plan is the Freedom of Access to Clinic Entrances Act, known as the FACT Act, which normally prohibits physically obstructing access to abortion clinic by blocking entrances or threatening to use force or intimidate or interfere with someone. It also prohibits damaging property at reproductive health centers and abortion clinics.
While Garland’s department urgently explores 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, this action could be limited by the fact that the act is geared more towards physical acts of intimidation or violence than lawsuits.
If an abortion provider should successfully defend a lawsuit, it wouldn’t block future suits. For example, a Texas judge’s decision last week temporarily shielding some some abortion clinics from being sued by the state’s largest anti-abortion group didn’t affect any other groups. This has raised concerns of what actions the Department of Justice could take.
Constitutional scholars have said that there are tools the federal government can use, including that prosecutors could bring criminal charges under civil rights measures originally written to uproot the Ku Klux Klan. These charges say that private citizens working with the state to deprive people of their constitutional right could face criminal violations.
On the civil side, Section 1983 action allows people to sue someone else who is blocking them from exercising their constitutional right. Those civil lawsuits must be filed by the person under attack rather than the government, but federal attorneys could join suits already filed.
Legal experts have also said the Justice Department may likely work to help overturn the law with a so-called friend-of-the-court brief, which could help bolster an already existing lawsuit challenging the state law. Because the law prohibits abortion long before the fetus is viable outside the womb, constitutional law experts have said the Texas ban is likely to be struck down in court eventually for being unconstitutional.
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.