The Biden administration has limited options in its effort to unilaterally counteract the new Texas law that prohibits most abortions.
Attorney General Merrick Garland said this week that the Justice Department would protect women seeking abortions in Texas, taking steps such as sending federal law enforcement to protect abortion clinics “under attack.” He also said officials are exploring “all options” to challenge the law in Texas preventing abortions as early as six weeks into pregnancy.
The most effective method to removing the Texas restrictions would involve passing legislation in Congress to codify the protections from Roe v. Wade. But without eliminating or reforming the Senate filibuster, such a bill would undoubtedly fall short due to GOP opposition.
President Biden has not been moved by demands from progressives to get behind abolishing the filibuster, nor has he endorsed an expansion of the Supreme Court, seen by liberals as another solution to ensuring abortion rights remain intact.
One of the biggest challenges facing the Biden administration is the way the Texas law is structured. It essentially deputizes regular citizens to sue abortion clinics, doctors and others suspected of helping women get an abortion in Texas after a doctor detects a fetal heartbeat, rather than having a government official enforce the law.
“The ability of the Justice Department is really quite limited here. All of the possible actions I can think of, and there may be some I can’t, would require an actual case to happen first,” said Barbara McQuade, a University of Michigan law professor and former U.S. attorney during the Obama administration.
“By crowd sourcing the enforcement, you’ve created this kind of vague class of defendants to be sued,” McQuade added, noting that there can’t be a defendant until a lawsuit is filed.
Garland on Monday said the Justice Department would protect access to abortions through criminal and civil enforcement of the FACE Act, a 1994 law that prohibits threats to people seeking reproductive health services and protects access to abortion clinics. The attorney general said officials have been in touch with U.S. attorneys’ offices in Texas and other areas of the country about their enforcement authorities.
The statement from Garland, however, was light on specifics. A Justice Department spokesperson declined to elaborate when asked about what other options the agency is considering to protect women’s access to abortions.
On Wednesday evening, the Wall Street Journal reported that the Biden administration is preparing to sue Texas over the law.
Asked about the report during an appearance on CNN Thursday morning, White House press secretary Jen Psaki declined to get ahead of any announcement from the Justice Department but said such an action would be “consistent” with Biden’s call for action to protect a women’s right to choose.
“We’ll leave it to the Department of Justice to announce any specific details or plans,” Psaki said.
Democrats on the House Judiciary Committee wrote to Garland on Tuesday calling on him to use the “full power” of his department to defend a woman’s right to an abortion.
“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,” the roughly two dozen lawmakers wrote.
Legal experts say there are some statutes the Justice Department can draw upon to deter private citizens from enforcing the Texas law.
In a recent op-ed in The Washington Post, Laurence Tribe, a professor emeritus at Harvard Law School, argued that the Justice Department should take advantage of two federal civil rights provisions to go after private individuals who try to enforce the Texas law, as a means of deterring its enforcement.
One of those sections makes it a crime for individuals to, “under color of any law,” willfully deprive a person of “any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” The second statute makes it a crime for people to conspire to “injure, oppress, threaten, or intimidate” a person exercising their rights.
Carl Tobias, a University of Richmond law professor, said just the threat of Justice Department action could have the desired impact of deterrence.
“The full weight of Justice and the presidency ought to give some people pause,” Tobias said. “The Justice Department has huge resources. They have U.S. attorneys’ offices in every state and they could bring those to bear.”
Tobias noted that Justice Department attorneys could also intervene in litigation that is brought under the new law. The Biden administration may also look at ways to attach requirements to federal funding flowing to the state.
But McQuade noted that even if no cases are brought under the law it will have a “chilling effect” that results in clinics closing their doors for fear of being sued. Facilities in San Antonio have already temporarily stopped offering abortions in the hopes of avoiding lawsuits.
“This statute has rather cleverly avoided judicial scrutiny,” McQuade said.
Speaker Nancy Pelosi (D-Calif.) has vowed to hold a vote on the Women’s Health Protection Act, which would codify Roe v. Wade, but the bill faces an uncertain future in the 50-50 Senate, given the legislative filibuster and Democrats’ very narrow majority.
Administration officials have repeatedly said the Departments of Justice and Health and Human Services are reviewing potential remedies to provide women in Texas with access to health care, but thus far there have been few tangible proposals from the White House.
Biden has tasked the White House counsel’s office and the gender policy council to initiate a review to determine what actions the two departments can take to protect women’s access to abortions in Texas and insulate women and providers from lawsuits.
“The president has made clear that it’s a priority to do everything we can to ensure that women in Texas have access to health care,” Psaki told reporters on Wednesday.
One Democratic strategist close to the White House said the review of executive actions to protect abortion access is in line with the administration’s strategy on other intractable issues like gun control and voting rights.
Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said her organization is in touch with the Justice Department and that officials “have assured us that they are leaving no stone unturned to assess all their options.”
“Swift action is needed to protect Texans' constitutional right to access abortion. SB 8 has wreaked havoc across Texas, and the impact of the ban is being felt the most by communities of color and people with the fewest resources,” Amiri said.
Biden has previously tapped certain officials or departments with reviewing ways to protect the right to vote or curb gun violence in the face of congressional road blocks. The White House now appears to be pursuing a similar strategy with abortion, looking internally for options on a key policy priority.
Social issues like those are likely to become more important in the coming months as the midterm election landscape takes shape. Democrats are already banking on reproductive rights being a major motivator for their base, particularly in states like Texas.
Vice President Harris assailed Texas Gov. Greg Abbott (R) in remarks at a campaign event for California Gov. Gavin Newsom (D) on Wednesday afternoon.
“To arrogantly dismiss concerns about rape survivors and to speak those words that were empty words, that were false words, that were fueled with not only arrogance but bravado. That is not who we want in our leaders,” Harris said.
The Democratic campaign arms in the House and Senate, respectively, and Planned Parenthood issued a memo on Wednesday highlighting how abortion will be on the ballot next year in light of the Texas law and other states that may consider copying it.