Attorney General Merrick Garland is mobilizing the U.S. Department of Justice to attack the new pro-life Texas Heartbeat Act on behalf of the Biden administration. Garland has said that the DOJ will not “tolerate violence” or threats against women who seek abortions in Texas. He added that his department was acting “urgently” in evaluating ways to challenge the Texas law.
The new Texas Heartbeat Act went into effect on September 1 and prohibited most abortions after a fetal heartbeat is medically detected, which usually occurs around the sixth week of pregnancy. Abortion activists sought to block the law by seeking an injunction, but the Supreme Court refused to grant the request just before the law became effective.
While the Supreme Court refused to grant an injunction stopping enforcement of the law, it did not rule on its constitutionality. The court has a case pending in its next term. The State of Mississippi and numerous interested parties have explicitly requested that the Supreme Court overturn its 1973 decision in Roe v. Wade that declared women have a constitutional right to an abortion during the first trimester of pregnancy.
Garland said that the DOJ would explore using the 1994 Freedom of Access to Clinic Entrances Act to “continue to protect” women seeking abortions. That law makes it a federal crime to attack or harass patients or employees at abortion clinics.
The design of the Texas Heartbeat Act makes it more difficult for the federal government or abortion activists to attack the law in court. The act gives enforcement power to private parties and prohibits state officials from enforcing the law, which creates significant obstacles for anyone challenging the action under standard legal procedural rules.
Abortion activists said Garland’s statements about enforcing the existing federal law regarding violence at abortion clinics are an excellent first step. A spokesperson for the Planned Parenthood Federation of America said that the group expects the Biden administration to “use every other tool at its disposal” in attacking the Heartbeat Act.
House Speaker Nancy Pelosi has vowed to have the House pass legislation designed to codify Roe v. Wade into federal statutory law. Such legislation would require 60 votes in the Senate to avoid the filibuster rule, which means at least 10 Republican senators would have to vote in favor.
The most likely resolution of the controversy between pro-life states and the pro-abortion Biden administration will not come until the Supreme Court deals directly with deciding whether to keep or scrap Roe sometime next year.