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Justice Department to protect women seeking an abortion in Texas

Attorney General Merrick Garland attends a news conference at the Justice Department in Washington, D.C., on June 25. (Ken Cedeno/Reuters)

The Justice Department is exploring “all options” to challenge Texas’s restrictive abortion law, Attorney General Merrick Garland said Monday, as he vowed to provide support to abortion clinics that are “under attack” in the state and to protect those seeking and providing reproductive health services.

The move by the nation’s top law enforcement official comes just days after the Supreme Court refused to block a Texas abortion statute that bans the procedure as early as six weeks into pregnancy with no exceptions for rape or incest. The court’s action stands as the most serious threat to Roe v. Wade, the landmark ruling establishing a right to abortion, in nearly 50 years.

President Biden, who has sharply criticized the high court’s decision, had asked the Justice Department to explore ways to contest the Texas law. House Speaker Nancy Pelosi (D-Calif.) has pledged to call a vote later this month on legislation that would enshrine the right to an abortion into federal law.

“We will not tolerate violence against those seeking to obtain or provide reproductive health services, physical obstruction or property damage in violation of the Face Act,” said Garland, referring to the Freedom of Access to Clinic Entrances Act, a 1994 law that prohibits threats to and obstruction of a person seeking reproductive health services or of providers.

Garland said the Justice Department has reached out to U.S. attorneys’ offices and FBI field offices in Texas and across the country to “discuss our enforcement authorities.”

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

The statement from the attorney general pits the Biden administration’s Justice Department against Texas Republicans, led by Gov. Greg Abbott, over abortion and the state law’s provision empowering private citizens — rather than the government — to enforce the prohibition. Abbott’s office had no immediate response Monday to Garland’s announcement.

But John Seago, legislative director for Texas Right to Life, the antiabortion group that helped draft S.B. 8, said it was “absolutely ridiculous” that the Justice Department would act and ignore the Supreme Court.

“They are trying to come coerce Texas to follow their interests,” said Seago, who added that antiabortion advocates in the state are waiting to hear exactly how the department plans to intervene.

While the most straightforward approach would be to assist abortion providers in court, he said, that’s not a possibility, as no lawsuits have been filed with abortion clinics in full compliance with the law.

The attorney general’s move, like the new law, will probably reverberate well beyond Texas’s borders. Republican officials in at least seven states across the country have suggested that they may change their states’ laws to mirror the legislation in Texas. And abortion activists expect more copycat bills to follow, as state legislatures this year have already enacted dozens of abortion restrictions.

After Texas’s 6-week abortion ban went in to effect, other Republican-led states implemented similar laws to spur test cases for challenging Roe v. Wade. (Video: Blair Guild/The Washington Post)

What to know about the Texas abortion law

Biden had said on Friday that the department would be considering ways to counter the law, and Garland said Monday that the department would do just that “to protect the constitutional rights of women and other persons, including access to an abortion.”

The Texas law also allows anyone to file a lawsuit against any person who has aided someone in obtaining an abortion, with the potential for a $10,000 payoff.

While some previous attempts by GOP state leaders to outlaw abortions have failed, Texas’s bill may provide other legislatures a blueprint to pass legal scrutiny. The law was designed to turn away pre-enforcement challenges in federal courts and allows private citizens to bring suit against abortion providers or anyone who “aids or abets” the procedure. Abortion providers say the ban effectively eliminates the guarantee in Roe v. Wade that people have a right to end their pregnancies before viability and that states are barred from imposing undue burdens on that decision.

Biden has denounced the Texas law as “almost un-American” and said it creates a “vigilante system” under which private citizens are empowered to police the ban.

“I have been and continue to be a strong supporter of Roe v. Wade, number one,” Biden said Friday morning. “And the most pernicious thing about the Texas law, it sort of creates a vigilante system where people get rewards to go out and to —.” He did not finish the thought.

He emphasized that he was referring to the Texas law and not to the broader debate over Roe.

“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.

Rep. Matt Gaetz (R-Fla.) responded to Garland’s announcement on Twitter, proclaiming, “It is up to COURTS - not the executive branch - to determine whether the Texas law impairs constitutional rights.”

Gaetz railed against the department, saying: “The DOJ is out of control. This is totalitarian stuff. If they don’t like a law they will use DOJ raw power to crush it.”

Garland said in his statement that the Justice Department has “consistently” pursued criminal and civil violations of the Face Act for decades and will continue to do so.

At an event last week, Senate Minority Leader Mitch McConnell (R-Ky.) called the Supreme Court ruling on the Texas abortion law “a highly technical decision,” adding that it is “unclear” whether the decision will lead to a broader ruling on Roe.

But as Garland’s announcement suggests, the legal landscape has already shifted, prompting assurances from the highest offices of the federal government that it will protect the constitutional rights of individuals perceived by many to be in jeopardy.

With few exceptions, congressional Republicans have been notably quiet on the Texas law, despite it ostensibly furthering the political goals of many conservative leaders. Sen. Susan Collins (Maine), one of the few abortion rights supporters in the GOP, called the Texas law “extreme and harmful” in a statement last week, highlighting the potential for a momentous decision to galvanize the public and spark a political backlash following an abrupt break with decades-long precedent.

This fall, the Supreme Court, with its 6-to-3 conservative majority, will consider the constitutionality of a restrictive abortion law from Mississippi. Dobbs v. Jackson Women’s Health Organization forbids almost all abortions after 15 weeks.