Biden DOJ vows to defend abortion access in wake of Texas heartbeat bill

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Paxton on abortion law: ‘All Texas is trying to do is protect the unborn’

Texas Attorney General Ken Paxton discusses backlash from the state's abortion law.

U.S. Attorney General Merrick Garland pledged to preserve access to abortions in response to Texas S.B. 8, which creates a civil cause of action against those who perform or abet abortions after a doctor can detect a fetus' heartbeat.

"While the Justice Department urgently explores all options to challenge Texas SB8 in order to protect the constitutional rights of women and other persons, including access to an abortion, we will continue to protect those seeking to obtain or provide reproductive health services pursuant to our criminal and civil enforcement of the FACE Act," Garland said in a statement Monday, referencing the Freedom of Access to Clinic Entrances Act which President Bill Clinton signed into law in 1994.

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The attorney general explained that the FACE Act "prohibits the use or threat of force and physical obstruction that injures, intimidates, or interferes with a person seeking to obtain or provide reproductive health services. It also prohibits intentional property damage of a facility providing reproductive health services."

Garland pledged that the Department of Justice "will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack. We have reached out to U.S. Attorneys’ Offices and FBI field offices in Texas and across the country to discuss our enforcement authorities.

"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," the attorney general concluded.

Texas' new abortion law enables private citizens to bring a civil lawsuit against an abortionist, or someone who aids and abets abortion, if the abortion provider detected the unborn baby's heartbeat before carrying out the procedure, or if they refuse to check for a heartbeat after roughly six weeks' gestation. Many abortion activists have condemned the law as effectively overturning the 1973 Roe v. Wade decision, since many women often do not realize they are pregnant until they pass six weeks' gestation.

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By bringing up the FACE Act in the context of combatting S.B.8, Garland hinted that the DOJ may consider such private lawsuits a violation of the FACE Act. The DOJ did not immediately respond to Fox News' request for comment on the issue, however. The office of Texas Attorney General Ken Paxton also did not immediately respond to Fox News' request for comment on the issue.

Former Harvard Law professor Laurence Tribe urged Garland to take up a similar legal argument.

"It should be the announced position of Merrick Garland’s DOJ that claims asserted by bounty hunters under the Texas statute will be regarded as unlawful attempts to deprive persons of their constitutional rights and will be subject to civil and criminal sanctions as appropriate," Tribe tweeted. 

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S.B. 8 came into effect on September 1 after the Supreme Court voted 5-4 to deny an emergency appeal from abortion providers and others to sideline the law while appeals are made. The judges suggested that their order likely isn't the last word on whether the law can stand.

Last week, House Speaker Nancy Pelosi, D-Calif., pledged that the House of Representatives would vote on a bill codifying Roe v. Wade into law.