Wednesday, September 8, 2021

DOJ Has Several Possible Ways to Try and Protect Women's Access to Abortion in Texas

1.  FACE - federal Freedom of Access to Clinic Entrances Act

Justice Department Promises to Protect People Who Seek Abortion

U.S. Attorney General Merrick Garland said Monday that the Justice Department will protect people trying to obtain or provide abortions in Texas, in the wake of the state's new restrictive abortion law.


Senate Bill 8 — often called the "heartbeat bill" by supporters — effectively bans abortions after six weeks, well before many people even know they are pregnant. Physicians who specialize in reproductive health say the term “fetal heartbeat” used in the legislation is misleading because there is no cardiovascular system or a functional heart six weeks into pregnancy.


Garland said his department will urgently explore all options to challenge the law. In the meantime, he said it will continue to protect the rights of people seeking access to abortion under the Freedom of Access to Clinic Entrances (FACE) Act of 1994.


The FACE Act prohibits the use or threat of force and physical obstruction that injures, intimidates, or interferes with a person seeking to obtain or provide reproductive health services. It also prohibits intentional property damage of a facility providing reproductive health services.


“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," the statement explained.


"The department has consistently obtained criminal and civil remedies for violations of the FACE Act since it was signed into law in 1994, and it will continue to do so now," it added.


2. Use the Ku Klux Klan Act to charge those who act "under color of state law" to deprive women of their constitutional rights.

ABA J, How Could the Justice Department Counter Texas Abortion Restrictions? Law Prof Suggests Prosecutions

Some abortion-rights supporters say the answer is for the Department of Justice to prosecute private citizens who sue to enforce the law, which bans abortions after a fetal heartbeat is detected, the Washington Post reports.


The law authorizes private citizens to file the suits against abortion providers and others who knowingly help pregnant women violate the law, which effectively bans abortions after about six weeks of pregnancy.


In a letter, Democratic members of the House Judiciary Committee on Tuesday encouraged Garland to fight the law with 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.”***


In a Washington Post op-ed, Laurence Tribe, a professor emeritus at Harvard Law School, explained how the DOJ could initiate criminal prosecutions using a law intended to battle the Ku Klux Klan.


The department could rely on Section 242 of the federal criminal code, which makes it a crime for those who, “under color of law,” willfully deprive individuals “of any rights, privileges or immunities secured or protected by the Constitution or laws of the United States.” The private citizens who sue under the Texas law are acting “under color of law,” and they are violating the constitutional right to abortion, he said.


Tribe said the DOJ could also rely on Section 241 of the federal criminal code, which makes it an even more serious crime for “two or more persons” to agree to “oppress, threaten or intimidate” anyone “in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” Purely private vigilantes acting in concert with others could be prosecuted under this section, he said.


Tribe also suggested a third course of action: The DOJ could seek a court order blocking enforcement of the Texas law under the All Writs Act, which allows federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions.”

Abortion, Constitutional, Legislation | Permalink


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