On Monday, United States Attorney General Merrick Garland spoke out in support of abortion providers in Texas, pledging to protect clinics under the Freedom of Access to Clinic Entrances Act, a 1994 law that makes it illegal to obstruct someone’s access to reproductive health services.
“The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack,” Garland said, referring to the Department of Justice.
Garland’s statement is an important reminder of an often-overlooked law that, like many legal abortion protections, has been steadily eroded by clinic protesters. But the DOJ’s invocation of the FACE Act will do little to help embattled clinics whose providers are prevented from serving the vast majority of their patients. While some clinics have reported protesters outside intimidating physicians and staff, abortion opponents need not see someone they suspect of providing an abortion after six weeks to name them in a lawsuit. (And indeed, since all clinics in the state are complying with S.B. 8, they won’t.) These private citizens can stay home and accomplish the same thing—that is, suing providers into oblivion with or without any evidence to support their claims.
Government officials’ outrage over Texas’s abortion ban have been little more than exercises in futility, underscoring not only the insidiousness of the legal loophole that has allowed it to go into effect, but leaders’ failures in imagination. Last week, Biden promised that his administration remained “deeply committed to the constitutional right established in Roe v. Wade,” and reiterated his intention to “codify” the landmark Supreme Court ruling in federal law. Biden also appears to remain “deeply committed” to avoiding any serious discussion of abolishing the filibuster or packing the court (the former of which would be a prerequisite for codifying Roe).
House Speaker Nancy Pelosi’s plan for a House vote on federal abortion rights legislation suffers from this same roadblock, though she is also loath to mention it.
These tacit denials are far from reassuring. While politicians and lawmakers make vain attempts to thwart anti-abortion activists in Texas and across the country, grassroots organizers and ordinary people will be the ones to make sure that people who need abortions can get them; they will be the ones driving Texans across state lines and sending them pills in the mail. As of this writing, Rep. Alexandria Ocasio-Cortez is the only member of Congress I’ve seen to acknowledge that ending a pregnancy at home, with pills, is a possibility—the only member of Congress to acknowledge that something exists beyond the limitations of the law.