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Justice Department Pressed to Counter Texas Abortion Law

Sept. 7, 2021, 4:17 PM

The Justice Department is facing mounting pressure to counter the Texas anti-abortion law that has infuriated Democrats and put President Joe Biden on the defensive, but there appears to be little the agency can do.

Attorney General Merrick Garland should “use the full power of the Department of Justice to defend a woman’s constitutional right to choose an abortion,” more than 20 Democrats on the House Judiciary Committee wrote in a letter on Tuesday.

The law, known as Texas Senate Bill 8, bans abortions after six weeks and deputizes citizens to sue people who perform or aid in the procedure, allowing them to collect at least $10,000 and legal fees if they succeed in court.

In the letter Tuesday, Democrats led by Judiciary Chairman Jerrold Nadler said the department should consider criminally prosecuting citizens who take action under the law.

“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 to Garland.

How Texas Abortion Law Turns Public Into Enforcers: QuickTake

The department had no immediate comment on the letter. Biden last week said he believed DOJ may have some ability to “limit” the legislation, without providing details. He called the law an “assault” on abortion rights.

The Supreme Court refused on Wednesday to block the law as requested by abortion providers in Texas while the measure is challenged in lower courts.

Meanwhile, administration officials are considering a range of options, from litigation to regulatory action to seeking legislation in Congress, according to a private lawyer who has been consulted by the department on the matter.

The problem with litigation, however, is that the department is likely to hit the same roadblock that abortion clinics hit in that it’s not clear anyone can be sued in Texas to enjoin the law, the lawyer said.

Biden Says DOJ May Be Able to Limit Texas Abortion Law (1)

Garland said in a statement on Monday that the department is urgently exploring all options to challenge the Texas law. The department will use powers under the so-called FACE Act to provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack, 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,” Garland said.

To contact the reporters on this story:
Chris Strohm in Washington at cstrohm1@bloomberg.net;
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Bill Faries at wfaries@bloomberg.net;
Elizabeth Wasserman at ewasserman2@bloomberg.net

© 2021 Bloomberg L.P. All rights reserved. Used with permission.

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