After Attorney General Merrick Garland got some splashy headlines last weekend claiming the Justice Department would step in to "protect women" against the Texas abortion ban, the only people celebrating Garland’s statement were anti-abortion activists.
“If violating the FACE Act is all the DOJ has come up with to block the Texas Heartbeat Act, that’s good news,” said Chelsey Youman, Texas state director of Human Coalition Action.
Garland had invoked the 1994 law known as the Freedom of Access to Clinic Entrances (FACE) Act, which prohibits anyone from using violence, intimidation, and physical obstruction to keep people from getting an abortion. Since the Texas ban relies on none of those tactics to block abortion access, Garland had just committed to protecting women by employing a statute that was almost entirely useless.
Even legal scholars who oppose the Texas ban admitted that Garland's response was irrelevant at best and ridiculous at worst.
“I did not think that was a particularly helpful thing for him to announce," said Harvard Law School professor and constitutional law expert Laurence Tribe. “The threats to the women who seek abortions in Texas are not physical threats to them or the property of the clinics."
The real threat, Tribe told The Washington Post, is bankruptcy—entirely driving these clinics out of business.
The Texas law deputizes private citizens to file civil claims against anyone who helps facilitate an abortion at any point beyond six weeks into pregnancy. The deputized bounty hunters are rewarded with $10,000 for every successful claim they make while the defendants get saddled with everyone's attorneys fees. Clinics say the six-week timeframe ultimately prohibits some 85%-90% of abortions in the state.
“Now the issue is providers have stopped providing,” said Jenny Ecklund, a lawyer who is representing several people and pro-choice advocacy organizations.
Ecklund told the Post she doesn't think the goal was actually to create a law that could pass constitutional muster but rather to just create one that blocked abortion access just long to enough to bankrupt the entire system.
"I will tell you my firm belief is that they don’t care if it’s declared unconstitutional, because their goal is to run everyone out of business beforehand,” she explained.
At the moment, that's exactly what is happening. While the Justice Department is fumbling around like a blindfolded child taking wild whiffs at a piñata, irreparable harm is being done to the women of Texas.
But don’t worry, some Justice Department official anonymously assured the Post that it was still plotting a "forward leaning" course of action.
Here's an idea: Listen to Professor Tribe.
"It should be the announced position of Merrick Garland’s DOJ that claims asserted by bounty hunters under the Texas statute will be regarded as unlawful attempts to deprive persons of their constitutional rights and will be subject to civil and criminal sanctions as appropriate," Tribe tweeted the day after the Supreme Court greenlighted the law.
Gee, that seems reasonable enough since Texas lawmakers created a law that is now blocking women from exercising a constitutional right as so declared in Roe v. Wade. If Garland is going to "protect women," how about pledging to uphold their constitutional rights?
"For example," Tribe wrote, "Section 242 of the federal criminal code 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.'"
Tribe’s prescription for combatting the Texan ban isn't the only one out there. The Nation's Justice Correspondent, Elie Mystal, floated perhaps an even bolder idea of federalizing abortion providers so they would have qualified immunity against any civil suits arising from them doing their jobs. (If you want to hear more Mystal, he joined us for the second half of The Brief this week.)
The point is, it's plenty possible to devise innovative responses to this dystopian law created in the hellscape of right-wing Texas politics. It's just that none of those responses are coming from Merrick Garland's Justice Department.