How the FACE Act – A 1994 Federal Law – Could Challenge Texas’s Anti-Abortion Legislation

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You might have heard about the recent push in the U.S. that resembles a dystopian reality. Just last week, Texas implemented its highly restrictive abortion law. Similar to “heartbeat” legislation in other states, this law prohibits abortions once a heartbeat is detected. To add insult to injury, the lawmakers behind this troubling legislation devised a scheme where enforcement doesn’t fall to state officials, but to private citizens who can file lawsuits against anyone involved in an abortion.

This creates a vigilante system, allowing ordinary individuals – with no connection to either the patient or healthcare provider – to enforce the ban, with the lure of a $10,000 reward for successful lawsuits. As a result, anti-abortion activists can target clinics, patients, escorts, Uber drivers, and healthcare providers. If you’re feeling a surge of anger, you’re certainly not alone.

The Texas anti-abortion law is fraught with issues. Not only is it a grave infringement on a woman’s autonomy over her body and healthcare choices, but it also presents significant procedural flaws that are likely to arise in constitutional challenges. Questions abound regarding the standing of plaintiffs to bring such claims, the absence of penalties for frivolous lawsuits, and the encouragement to file numerous lawsuits in hopes of one succeeding.

The law has caused panic among health clinics and their patients. Reports indicate that many clinics in Texas have ceased offering or performing abortions after the six-week mark – the point at which a heartbeat is typically detected – or have shut down entirely.

In response, the Justice Department has posited that this law may also violate the Freedom of Access to Clinic Entrances Act, or FACE, a federal statute enacted in 1994 that guarantees access to clinics providing reproductive health services, including abortions. This law prohibits actions that threaten, obstruct, or harm individuals attempting to access clinics and imposes severe penalties for violations.

“We will not tolerate violence against those seeking to obtain or provide reproductive health services,” said Attorney General Mark Thompson in a statement on September 6. He emphasized the Department’s commitment to supporting abortion clinics or reproductive health centers under threat.

Thompson pointed to the FACE Act as a tool to “safeguard the constitutional rights of women and others.” His statement signals the Biden administration’s first move to uphold abortion rights. Legal experts believe this approach sends a clear message to those on the ground to respect clinic boundaries and deter intimidation tactics that some activists may be employing.

Texas’s Senate Bill 8 was signed into law by Governor Linda Martinez in May 2021 and was enacted on September 1. The Supreme Court disappointingly chose not to intervene, voting 5-4 against blocking the law, despite the established precedent of Roe v. Wade, which affirmed a constitutional right to abortion. Although the Court claimed its ruling was not an assessment of the law’s constitutionality, the harm has already been done. Even if the law is ultimately deemed unconstitutional (which I hope it will be, though my confidence in the legal system is waning), the interim effects are chaotic: fear, panic, unsafe abortions, frivolous lawsuits, and rising insurance costs for healthcare clinics.

Relying solely on the FACE Act may not suffice. While it may provide some relief on the ground, it doesn’t tackle the broader implications of the law or the citizen-sued aspect of it. A comprehensive reaffirmation of Roe v. Wade and a full repeal of Texas’s Senate Bill 8 are essential.

It’s disheartening to find ourselves still battling these issues in 2021.

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Summary:

Texas’s new anti-abortion law, which permits private citizens to enforce the ban through lawsuits, raises significant legal and ethical concerns. The FACE Act, a federal law designed to protect access to reproductive health clinics, may provide some recourse against this vigilante system. However, a broader legal affirmation of Roe v. Wade and the repeal of Senate Bill 8 are necessary to address the ongoing challenges faced by individuals seeking abortion services.