The Department of Justice will file suit as soon as Thursday against Texas over its abortion ban, The Wall Street Journal reports. Justice is expected to argue that the Texas law "illegally interferes with federal interests," according to a source to the WSJ. The Justice Department did not comment on the report, so further details aren't clear.
The Texas law prohibits essentially all abortions, with no exceptions, by banning abortion after the point at which the cells that would eventually constitute a heart start showing activity, which is generally at about six weeks. Six weeks is a "biologically nonsensical" time limit based on bad math and a point at which any woman not trying to get pregnant and obsessively following her cycle would not be likely to know she was pregnant. The law would let anyone collect a $10,000 bounty from the person or persons they name as "aiding and abetting" the abortion.
House Judiciary Democrats have pushed Attorney General Merrick Garland to flip the law against the would-be bounty hunters by federally prosecuting any who try to enforce the ban. "The Department of Justice cannot permit private individuals seeking to deprive women of the constitutional right to choose an abortion to escape scrutiny under existing federal law simply because they attempt to do so under the color of state law," committee Democrats said in a letter to Garland. That's excellent advice from House Democrats and guts the part of the law that Republicans thought they were so devious in creating—making it so that there wouldn't be a state actor to sue to stop the law going forward.
It would certainly be a more forceful response than what Garland has done so far, saying he would use 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 to "protect women." Never mind that they should have enforced that law to the full extent since 1994; it really does nothing to stop the snitches and bounty hunters.
The House Democrats' idea aligns with what law professor Lawrence Tribe has suggested: Go after the bounty hunters.
He explained that further in an op-ed; the Justice Department can use the law originally designed to go after the Ku Klux Klan, which makes it a federal crime for individuals to "'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.'"
There are many other ideas, as Kerry Eleveld explained here, including some really creative and perfectly constitutional options from The Nation's Justice Correspondent, Elie Mystal, which he discussed with Eleveld and Markos Moulitsas on this week's The Brief.
"There are things Biden can do if he's willing to use the power of his office aggressively," Mystal said. It needs to get aggressive because there's more of this coming down the road. "This Texas law is a cheeky attempt to get around Roe v. Wade, but Mississippi already has a direct challenge, where they've asked in the brief to the Supreme Court to overturn Roe v. Wade, and the Supreme Court is due to hear that case sometime this year or early next year and will most likely decide on that in June," Mystal said. "The fact that the Supreme Court even wanted to hear that case is an indication that it's going to overturn the lower courts and allow the Mississippi law to go through, which would be a functional revocation of Roe v. Wade."
Biden hinted at the possibility of going after the bounty hunters in his remarks last week. "I was told that there are possibilities within the existing law to have the Justice Department look and see whether there are things that can be done that can limit the independent action of individuals in enforcing … a state law," Biden said. "I don't know enough to give you an answer yet." Maybe now Biden and Garland know enough—going after the would-be vigilantes is certainly within the scope of the law.
Thursday, Sep 9, 2021 · 7:25:48 PM +00:00 · Joan McCarter
Phew.
The Texas law prohibits essentially all abortions, with no exceptions, by banning abortion after the point at which the cells that would eventually constitute a heart start showing activity, which is generally at about six weeks. Six weeks is a "biologically nonsensical" time limit based on bad math and a point at which any woman not trying to get pregnant and obsessively following her cycle would not be likely to know she was pregnant. The law would let anyone collect a $10,000 bounty from the person or persons they name as "aiding and abetting" the abortion.
House Judiciary Democrats have pushed Attorney General Merrick Garland to flip the law against the would-be bounty hunters by federally prosecuting any who try to enforce the ban. "The Department of Justice cannot permit private individuals seeking to deprive women of the constitutional right to choose an abortion to escape scrutiny under existing federal law simply because they attempt to do so under the color of state law," committee Democrats said in a letter to Garland. That's excellent advice from House Democrats and guts the part of the law that Republicans thought they were so devious in creating—making it so that there wouldn't be a state actor to sue to stop the law going forward.
It would certainly be a more forceful response than what Garland has done so far, saying he would use 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 to "protect women." Never mind that they should have enforced that law to the full extent since 1994; it really does nothing to stop the snitches and bounty hunters.
The House Democrats' idea aligns with what law professor Lawrence Tribe has suggested: Go after the bounty hunters.
He explained that further in an op-ed; the Justice Department can use the law originally designed to go after the Ku Klux Klan, which makes it a federal crime for individuals to "'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.'"
There are many other ideas, as Kerry Eleveld explained here, including some really creative and perfectly constitutional options from The Nation's Justice Correspondent, Elie Mystal, which he discussed with Eleveld and Markos Moulitsas on this week's The Brief.
"There are things Biden can do if he's willing to use the power of his office aggressively," Mystal said. It needs to get aggressive because there's more of this coming down the road. "This Texas law is a cheeky attempt to get around Roe v. Wade, but Mississippi already has a direct challenge, where they've asked in the brief to the Supreme Court to overturn Roe v. Wade, and the Supreme Court is due to hear that case sometime this year or early next year and will most likely decide on that in June," Mystal said. "The fact that the Supreme Court even wanted to hear that case is an indication that it's going to overturn the lower courts and allow the Mississippi law to go through, which would be a functional revocation of Roe v. Wade."
Biden hinted at the possibility of going after the bounty hunters in his remarks last week. "I was told that there are possibilities within the existing law to have the Justice Department look and see whether there are things that can be done that can limit the independent action of individuals in enforcing … a state law," Biden said. "I don't know enough to give you an answer yet." Maybe now Biden and Garland know enough—going after the would-be vigilantes is certainly within the scope of the law.
Thursday, Sep 9, 2021 · 7:25:48 PM +00:00 · Joan McCarter
Phew.