Fighting Texas abortion law could be tough for the federal government
WASHINGTON – Enemies of Texas’ new law that bans most abortions have turned to the Democrat-led federal government to be a saving grace – to rush in and tear down the most restrictive abortion law in force in the country. But it’s far from that simple.
President Joe Biden, who denounces the law as “almost anti-American”, has called on the Justice Department to try to find a way to block its application. And Attorney General Merrick Garland said his prosecutors were exploring all possible options. But legal experts warn that while the law may ultimately be found to be unconstitutional, the way it is written means it will be an uphill legal battle.
Known as SB8, the new state law prohibits abortions once healthcare professionals can detect heart activity – typically around six weeks, before some women know they are pregnant. Courts have ruled out other states from imposing similar restrictions, but Texas law differs significantly as it leaves enforcement to private citizens through civil suits instead of criminal prosecutors.
Pressure is mounting not only from the White House but also from Democrats in Congress, who want Garland to act one way or another. Nearly two dozen lawmakers wrote to him on Tuesday calling for “criminal proceedings against alleged vigilantes attempting to use the private right of action established by SB8.”
But what action can the Ministry of Justice take? How? ‘Or’ What?
So far, the attorney general has only said that federal officials will not tolerate violence against anyone who tries to obtain an abortion in Texas.
This law, commonly known as the FACE law, 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 damage to property in abortion clinics and other reproductive health centers.
Garland says that while her department is still urgently exploring options to challenge state law, justice will apply federal law “to protect the constitutional rights of women and others, including access to law. ‘abortion”.
However, that federal action could be limited by the fact that the act focuses more on physical acts of intimidation or violence than on prosecution, said Mary Anne Franks, constitutional scholar and professor at the Law School of the United States. ‘University of Miami.
The “nefarious ingenuity” of Texas law is that “you can’t do anything until someone tries to use this law,” she said. “And it’s really late in the game.”
And even if an abortion provider – or people who help a woman get an abortion – were to successfully defend a lawsuit, it wouldn’t block a stack of future lawsuits. A Texas judge’s ruling last week temporarily protecting some abortion clinics from prosecution by the state’s largest anti-abortion group, for example, has not affected any other group.
“This raises real concerns about the effectiveness of one of the actions the DOJ might take,” Franks said.
Still, there are tools the federal government could use, she said. Prosecutors could initiate criminal proceedings under civil rights measures originally written to root out the Ku Klux Klan. These say private citizens working with the state to deprive people of their constitutional rights could face criminal violations.
There is also a tool on the civil side, called a section 1983 action, that allows people to sue someone else who is preventing them from exercising their constitutional rights. These civil lawsuits must be filed by the person attacked rather than the government, but federal lawyers could join lawsuits already filed, she said.
These actions, she said, could have their own chilling effect on abortion enemies: people opposed to abortion who might want to sue providers might reconsider whether they could possibly face federal criminal charges. .
As for more direct action against the Texas law, legal experts say the Justice Department will likely work to overturn it with a so-called friend of the court brief, which could help strengthen a already existing lawsuit challenging state law.
Jonathan Turley, professor of constitutional law at the George Washington University School of Law, believes the law is likely to be ultimately struck down by the courts because it prohibits abortion long before the fetus is viable outside uterus.
“It is very likely that it will be found unconstitutional. The writers, the writers themselves, understood that… they set a line well below the existing case law to ban abortions, ”he said. “The courts are likely to do a quick job of Texas law.”
But if Democrats take action in Congress to preserve access to abortion at the federal level, as some are asking, he warned that could end up backfiring because there is case law establishing that states can legislate. on the procedure.
Such a federal law, if passed by Congress, would almost certainly find its way to court and could ultimately lose ground to abortion rights advocates if a ruling is made that strengthens the capacity of states, he said. -he declares.
Meanwhile, the mechanism of Texas citizen enforcement is something Democrats may not want to see limited broadly either, as the concept is also a key part of environmental law enforcement. . Courts have limited the ability of people to bring civil suits before, such as in libel suits that could infringe freedom of expression.
The Supreme Court declined to block Texas law in a 5-4 decision, although it did not rule on the constitutionality of the law itself.
Turley argues that a more serious threat to abortion access is an upcoming Supreme Court case: Mississippi asks to be allowed to enforce an abortion ban after 15 weeks of pregnancy.
In addressing this issue alone, judges will consider whether states can impose limitations on abortion before the fetus is viable outside the womb. There are no other issues at stake, no other means of deciding the matter more precisely. If the High Court sided with the Mississippi, it would open the door to other states passing similar laws.
“It’s a bigger threat,” he said.
Article by Linday Whitehurst and Michael Balsamo, Associated Press