DoJ Has Few Options Against Texas Abortion Law, Mississippi Case Brings New Risks, Legal Experts Say

AG Merrick Garland announced on 6 September that while the Department of Justice explores ways to challenge the new Texan abortion restrictions, the federal government would protect those seeking to obtain or provide reproductive health services under the 1994 Freedom of Access to Clinic Entrances (FACE) Act. What other options does the DoJ have?

Attorney General Merrick Garland's announcement came days after the US Supreme Court refused to block Texas' Senate Bill 8, banning abortions after six weeks following complaints from US rights groups that the new legislation violates the constitutional rights of American women. In the wake of the SCOTUS ruling, House Speaker Nancy Pelosi pledged to introduce a bill "codifying" Roe v Wade of 1973, which protects a pregnant woman's right to choose whether or not to have an abortion as a constitutional right.

'The Texan Statute is Unique'

The Texan "Heartbeat Act" was signed into law last spring and came into effect on 1 September. The legislation has one peculiarity, according to The New York Times: instead of government officials, it deputises ordinary citizens to sue clinics and others who violate it. The plaintiffs could be awarded at least $10,000 per illegal abortion if they are successful. According to the NYT, this approach made the law difficult to challenge before it took effect on 1 September, "because it [was] hard to know whom to sue to block it".

"The Texas statute is unique in that it delegates enforcement to private citizens who have no legally protected right at stake in the litigation", says David Levine, professor of law at the University of California, Hastings College of Law. "Some states have allowed these sorts of suits, but only in very limited situations such as consumer protection, and usually where the citizen enforcement is a supplement to, not instead of, enforcement by the government".

There are no legal precedents for this type of law, which has private citizens who have virtually no connection to the pregnant woman, argues David S. Cohen, professor of law at Drexel University and author of "Obstacle Course: The Everyday Struggle to Get an Abortion in America". According to him, the law is nothing short of "a mockery of the American legal system". Furthermore, it threatens basic constitutional rights, the academic underscores.

The data is clear: the majority of Americans support #RoeVWade. With SCOTUS conservatives refusing to defend 50 years of legal precedent, Congress needs to step up and codify Roe into federal law. pic.twitter.com/FxOrUkHnEe

— Elizabeth Warren (@SenWarren) September 2, 2021

On 3 September, the District Court for Travis County granted a temporary restraining order against Texas Right to Life and its associates preventing them from suing abortion providers Planned Parenthood health centres in Texas under the new law.

"A state court hearing is scheduled for September 17", says Robert A. Sedler, a distinguished law professor at Wayne State University Law School specialising in US Constitutional law. "For now, the case is in the state courts. At some point, the law will be declared unconstitutional".

The DoJ's Options

The US Department of Justice has limited options to challenge the law, according to the legal observers. For instance, the DoJ could file briefs in any cases which might arise regarding the Texas law as a friend of the court, according to Levine. An amicus curiae ("friend of the court") is an individual or a group which is not a party to a lawsuit, but who assists a court by offering expertise, files a brief, and participates in the argument related to the case.

"The briefs could explain why the Department thinks that the law is unconstitutional", the professor suggests.

Levine notes that the DoJ could also work with members of Congress to seek legislation to preserve the rights women have now under Roe v Wade.

For his part, Cohen suggests that the US Food and Drug Administration (FDA) could step in and "change how it regulates abortion drugs and possibly preempt state law".

Congress should tmrw pass legislation to codify Roe. SCOTUS powerless to stop it. If try filibuster, great arg to get rid of it. Trump nuked filibuster for S Ct. If 50 is good enough to confirm a justice for life&against Roe ...https://t.co/prjHTyUrA5

— Neal Katyal (@neal_katyal) September 2, 2021

The FACE Act

"It's a big stretch" to try to use the 1994 Freedom of Access to Clinic Entrances (FACE) Act, mentioned by AG Garland, to counter the new Texas law, according to Cohen and Levine. The FACE Act is a legitimate tool to protect people seeking to obtain or provide reproductive health services or to exercise religious freedom from force and physical obstruction, explains Levine. However, lawsuits under the "Heartbeat Act" don't fit the definition, the academics point out.

However, Davis law Professor Lisa Ikemoto from the University of California has described a scenario under which the FACE Act could work:

"The FACE Act protects people in situations where abortion opponents block access by threats, physical barriers or attacks, and property destruction at clinics", she explains. "If opponents show up at clinics to intimidate patients or identify those providing services to patients, the Department of Justice could bring the FACE Act to bear".

She notes that the FACE Act is part of a larger group of civil rights statutes "that can be enforced against non-government actors who violate the constitutional rights of others". So the DoJ may well use it against individuals acting under Senate Bill 8 or perhaps even, against the State of Texas, Ikemoto believes.

SCOTUS May Get Back to the Texan Law When It's Too Late

Meanwhile, it cannot be ruled out that the Texan law could eventually go to the US Supreme Court, the legal observers say.

"I believe it is quite likely that challenges to the Texas abortion law will be decided by the US Supreme Court, although it is likely to take some time before that happens because the lawsuits must go through the lower federal courts first", suggests Cindy G. Buys, professor of law, Southern Illinois University School of Law.

She explains that "In Roe v. Wade (1973), the US Supreme Court held that women have a fundamental right to choose whether to terminate a pregnancy prior to the third trimester". This decision was affirmed in the 1992 Planned Parenthood v. Casey case, and subjected to some modifications: in particular, the Supreme Court held "that states could not impose an undue burden on women seeking an abortion prior to [foetal] viability".

According to Buys, "if the recent Texas law is upheld, it would likely place an undue burden on a women’s right to terminate a pregnancy prior to [foetal] viability because it would create significant financial risks for doctors and patients who terminate pregnancies after a fetal heartbeat is detected but prior to viability".

Ohio abortion advocates on both sides of the debate are watching Texas' new law, but they say the upcoming Mississippi SCOTUS case is still poised to have the biggest impact here. https://t.co/XMKrHcNXr4

— Haley BeMiller (@haleybemiller) September 2, 2021

However, there's a rub: the SCOTUS is due to consider the Mississippi case which could potentially overturn both Roe v Wade and Planned Parenthood v. Casey, according to Cohen. "So, by the time another Senate Bill 8 case gets to the Supreme Court, there may be no right to abortion any longer", Cohen notes.

The hysterical reaction to the #TexasAbortionLaw from the Left only confirms the sheer genius of the law. Whatever #SCOTUS decides in the Mississippi case, a majority of justices have basically said they can’t overturn laws like the one Texas just passed

— Dinesh D'Souza (@DineshDSouza) September 2, 2021

In July 2021, the state of Mississippi asked the court to reconsider the landmark 1973 abortion ruling. Mississippi Attorney General Lynn Fitch, a GOP, argued that Roe v. Wade and Planned Parenthood v. Casey were both "egregiously wrong". "The conclusion that abortion is a constitutional right has no basis in text, structure, history or tradition", wrote Fitch in papers filed to the court.

"The Supreme Court now has more justices willing to allow tighter regulations on abortion than at any time since Roe v. Wade", deems James Melcher, a political scientist at the University of Maine in Farmington. "I think a full Supreme Court review is likely once this goes through the court system, and it could well approve the strictest limits on abortion since Roe".