That is not the basis of the new threat posed by the Texas law to abortion services. The Texas law exposes providers to private enforcement of a rule that sets an abortion bar during the pre-viability stage of a pregnancy.

The fanfare given by the DOJ to the use of the FACE reflects the limited range of possible options for the Justice Department. Indeed, as I previously wrote, efforts to create a new federal law or new federal enforcement effort to create a new basis for challenges by pro-life litigators.

The fact is that a greater challenge to Roe is not coming from Texas but Mississippi. The Court already has a case on the docket, Dobbs vs. Jackson Women’s Health Organization, that could roll back on Roe and allow for greater pre-viability limitations. Conversely, the Court could ultimately decline to review the Texas law which is likely to be declared unconstitutional under existing case law by the lower courts.

The new Texas law allows for private enforcement, not citizen action to barricade or attack clinics. FACE already protects against such threats and has been used in the past to maintain access to clinics. In the meantime, the law will be challenged in the courts, which are likely to declare it unenforceable pending a new ruling from the Supreme Court on pre-viability state limitations on abortions.

Garland was clearly under pressure from Biden to promise some action. To his credit, he did not make the situation worse by creating a federalism challenge in addition to the current challenges in the federal courts.

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