There is an old story about a man who comes upon another man in the dark on his knees looking for his wedding ring under a street lamp. Sympathetic, the man joined the stranger on his knees and looked for almost an hour until he asked if the man was sure that he dropped it here. “Oh no,” the stranger admitted, “I lost it across the street, but the light is better here.”
The story came to mind yesterday when U.S. Attorney General Merrick Garland was widely covered in pledging that the Justice Department would defend women in Texas seeking abortions. Garland appears to be answering a different question than the one raised by the new law.
The announcement in the press release came after President Joe Biden promised a “whole government” response to the new Texas abortion law. However, Garland was pledging to enforce a law that has long been robustly enforced. The Freedom of Access to Clinic Entrances Act (FACE) to “protect those seeking to obtain or provide reproductive health services.” It specifically protects against 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 or to exercise the First Amendment right of religious freedom at a place of religious worship.
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.