Justice Department looks for ways to challenge Texas abortion law

Attorney General Garland says DOJ will enforce a federal law prohibiting people from threatening or preventing women seeking abortions

The Justice Department won’t tolerate violence or threats against people seeking abortions in Texas, U.S. Attorney General Merrick Garland said, as the Biden administration considers ways to challenge a new state law banning most abortions.

Mr. Garland said Monday that the department was "urgently" exploring its options to challenge the new law, which bars most abortions after about six weeks of pregnancy. The Supreme Court late Wednesday allowed it to take effect, but didn’t rule on the measure’s constitutionality.

The Justice Department will "continue to protect those seeking to obtain or provide reproductive health services" under a separate federal law that makes it a crime to injure or intimidate abortion-clinic patients and employees, Mr. Garland said. It also prohibits damaging property at such facilities and other reproductive-health centers.

Officials have reached out to federal prosecutors and Federal Bureau of Investigation field offices across Texas to discuss how to enforce the federal law, known as the 1994 Freedom of Access to Clinic Entrances Act, he said.


"The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack," Mr. Garland said.

A representative for Republican Texas Gov. Greg Abbott didn’t immediately respond to an email seeking comment.

The Texas law, which took effect Wednesday, dictates that a physician can’t knowingly perform an abortion if there is "a detectable fetal heartbeat," which includes embryonic cardiac activity that appears about six weeks into a pregnancy. The Texas Heartbeat Act, known as SB 8, provides an exception for medical emergencies but not for pregnancies resulting from rape or incest.

Lawmakers assigned enforcement to private parties, giving them an incentive by authorizing damages of $10,000 or more if they successfully sued a defendant they accused of performing or aiding an abortion. That novel provision was designed to create procedural obstacles to challenges filed by abortion-rights advocates.

That provision could also make it more difficult for the federal government to challenge the law, said University of Texas law professor Steve Vladeck. The Justice Department could contemplate ways to sue Texas, he said. The department could also seek ways to restrict federal funding or try to determine whether there are federal medical facilities in Texas that can provide abortions after the six-week period, he added.


"We’re in pretty uncharted territory here," Mr. Vladeck said. "This is a sticky wicket procedurally."

Mr. Garland’s statement signals that the Justice Department intends to increase prosecutions of people for violence or vandalism at abortion clinics after years of spotty enforcement and amid concerns about an uptick in such crimes because of Texas’s new law, said Mary Ziegler, a law professor at Florida State University.

Antiabortion activists criticized the statement, while those supportive of abortion rights said it was a good first step—but not enough.

"The Justice Department should be focused on protecting our basic rights, including our right to life, not on acting as the abortion industry’s personal attorneys before a relevant lawsuit is even in process," said Lila Rose, founder and president of Live Action, a group that opposes abortion.

Jacqueline Ayers, vice president of government relations and public policy at the Planned Parenthood Federation of America, said the group welcomed the statement, "but we hope and expect that the administration also intends to use every other tool at its disposal to protect patients who have no access to abortion in Texas right now."

Mr. Garland’s warning came as Democrats in Congress have also vowed to protect abortion rights in response to the Supreme Court’s order. House Speaker Nancy Pelosi (D., Calif.) said the chamber would vote later this month on legislation that would ban abortion restrictions before fetal viability.


However, the legislation is unlikely to pass the evenly divided Senate where it would need 60 votes. Senate Majority Leader Chuck Schumer (D., N.Y.) hasn’t announced a pending vote.

The expected outcome in the Senate renewed calls from progressives to abolish the 60-vote threshold on most legislation known as the legislative filibuster, and some pollsters say it will be a key issue in coming elections. Antiabortion female voters have long been active in elections, but the perceived threat to Roe v. Wade—the 1973 ruling that women have the right to an abortion—could activate a new bloc of female voters who favor abortion rights as well, said Christine Matthews, a pollster who has worked for Republican candidates.

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