Here’s How Merrick Garland’s DOJ Might Respond to Texas Anti-Abortion Plaintiffs

Attorney General Merrick Garland on Thursday vowed to take a hard look at a Texas anti-abortion law, S.B. 8, which went into effect at the start of the day Wednesday and which the U.S. Supreme Court refused to block late Wednesday night.

“The Justice Department is deeply concerned about Texas SB8,” said a DOJ tweet attributed to Garland. “We are evaluating all options to protect the constitutional rights of women, including access to an abortion.”

Statement from Attorney General Merrick B. Garland pic.twitter.com/r2LrUTGvD1

— Anthony Coley (@AnthonyColeyDOJ) September 2, 2021

President Joe Biden issued his own remarks which slammed the Texas anti-abortion measure. He called it an “unprecedented assault on a woman’s constitutional rights” which he said would lead to “unconstitutional chaos.” Biden was referring to the law’s private party enforcement mechanism.  Vice president Kamala Harris said the new Texas measure provided “cash incentives for virtual vigilantes and intimidation for patients.”

“We will use every lever of our Administration to defend the right to safe and legal abortion,” Harris said.

Biden promised a “whole-of-government effort” led by his Gender Policy Council and by the Office of the White House Counsel to “ensure that women in Texas have access to safe and legal abortions.” The effort will also involve the Department of Health and Human Services and the Department of Justice and will determine “what legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties,” Biden said.

But How?

It remains officially unclear what precise mechanism or mechanisms the Biden administration is contemplating in its mobilized response against the Texas measure. But legal scholars are debating several potential vehicles that may leave the crafted-and-touted-as-ironclad Texas S.B. 8 open to attack. As South Texas College of Law Professor Charles W. “Rocky” Rhodes and Florida International University College of Law Professor Howard M. Wasserman noted in a recent August paper:

Texas’ efforts fail procedurally and substantively. Procedurally, avenues remain for providers and advocates to vindicate their rights—and those of the pregnant women they serve—within the traditional operations and limitations of the federal and state judiciaries. This should caution other states against employing similar tactics to circumvent the enforcement of constitutional rights.

The thrust of the Rhodes/Wasserman argument is that anti-abortion plaintiffs under Texas S.B. 8 in essence function as private attorneys general and therefore qualify as state actors under 42 U.S.C. § 1983. That’s the perennially popular civil rights statute that affords a person affected by discriminatory conduct a civil cause of action against those who perpetrated the alleged depravation of civil rights.  Here’s the relevant text of the statute:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

“Under Color of Any Statute”

Though it has its roots in the Ku Klux Klan Act of 1871, Section 1983 is generally used by private party plaintiffs who wish to litigate against government employees over alleged violations of clearly established constitutional rights.  For instance, it was used by the family of George Floyd to sue Derek Chauvin, Tou Thao, Thomas Lane, J. Alexander Kueng, and the City of Minneapolis.  But professors Rhodes and Wasserman wrote that it could be extended to S.B. 8 plaintiffs:

That arguably changes the state-action analysis. Private individuals are deemed to act under color where they perform a traditional public function, one traditionally and exclusively performed by the government. This covers those functions that are essential to sovereignty and that the state has a constitutional obligation to perform as part of its sovereign authority. These include administering elections, providing basic municipal services in a privately owned town, and providing private “municipal services” such as police and fire protection. Enforcing a statutory prohibition for the benefit of the public is a traditional and exclusive function, one that the state must perform as part of its sovereign authority.

SB8 plaintiffs differ from ordinary litigants, or even ordinary private attorneys general filling enforcement gaps, in two respects—public interest and exclusivity. SB8 plaintiffs do not enforce their private rights, as they need not show any personal injury or stake in the abortions over which they sue. An SB8 plaintiff does not protect her private interests while incidentally benefitting the public, as does the typical civil plaintiff enforcing private rights. SB8 plaintiffs sue to vindicate a purely public policy goal — eliminating post-heartbeat abortions — as a substitute for the legislature and executive in their enforcement roles. Government officials enforce similar bans and regulations of abortion, including in Texas, suggesting that enforcement of this type of law is the ordinary province and duty of the government and government officials. SB8 does something unique in delegating that entire authority over public law to disconnected private individuals.

The professors also pointed to the exclusive private-party enforcement mechanism in S.B. 8 as an additional reason why their thesis holds water.

“If no private individual sues, the statutory prohibition, and thus Texas public policy, goes unenforced,” they noted.  and they admit that there are limits to the success of this attempted mechanism to neuter S.B. 8 through federal civil litigation.

Criminal Enforcement

The professors did not examine criminal enforcement mechanisms, but they are worth discussing given the DOJ’s interest in the situation.

One potential statute at play is 18 U.S.C. § 241. Section 241 creates penalties for situations where “two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”  The penalties contemplated in the statute generally involve a prison stint of up to ten years. (More severe penalties kick in if kidnapping, sexual abuse, or attempted murder come into play.)  This law only applies to groups of people, not to single individuals. It might effectively be used to bar pro-life advocacy groups from concertedly attempting to harangue abortion providers and other aiders and abetters by suing the latter groups under S.B. 8. However, it likely would be unsuccessful as a threatened prosecution against a single individual S.B. 8 plaintiff acting alone. Notably, § 241 does not require a showing that an offending party was acting “under color of law.”

Another statute at play is 18 U.S.C. § 242. It applies to individuals, not merely to groups.  It creates criminal penalties that are a bit tricky to unwind given the myriad clauses of the statute itself:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Is Abortion Covered?

Arguably, abortion is one of the rights explicitly protected by these federal criminal statutes.

At first blush, § 242 may appear to apply only to situations directly involving a person’s status as an “alien” or “by reason of his color” or “race.”  But that is not a correct reading of the statute.  As the Supreme Court explained in U.S. v. Classic (1941), the statute is interpreted as having encapsulated two distinct crimes under one heading:

We think that [the section] authorizes the punishment of two different offenses. The one is willfully subjecting any inhabitant to the deprivation of rights secured by the Constitution; the other is willfully subjecting any inhabitant to different punishments on account of his alienage, color or race, than are prescribed for the punishment of citizens. The meager legislative history of the section supports this conclusion.

The case contains a lengthy footnote explaining the rationale behind that interpretation.  The U.S. Department of Justice’s own website on § 242 also tacitly recognizes the duplex nature of the statute.

Case law indicates that § 242 finds its genesis in § 2 of the original Civil Rights Act of 1866.  And § 2 of the 1866 Act was itself later re-codified in the Enforcement Act of 1870 which deals with voting rights.  The law was subsequently expanded to cover any number of rights, but in 1866, it only protected certain delineated rights named within the original Act itself.  It has been expanded several other times since then, and it now broadly governs “any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”

The U.S. Supreme Court explained what happened over the law’s history using verbiage acceptable in the 1960s; the case is U.S. v. Price (1966):

Between 1866 and 1870 there was much agitated criticism in the Congress and in the Nation because of the continued denial of rights to Negroes, sometimes accompanied by violent assaults. In response to the demands for more stringent legislation Congress enacted the Enforcement Act of 1870 . . . it included § 241 in the Act using broad language to cover not just the rights enumerated in § 242, but all rights and privileges under the Constitution and laws of the United States.

It was not until the statutory revision of 1874 that the specific enumeration of protected rights was eliminated from § 242. The section was then broadened to include as wide a range of rights as § 241 already did: “any rights, privileges, or immunities, secured or protected by the Constitution and laws of the United States.” The substantial change thus effected was made with the customary stout assertions of the codifiers that they had merely clarified and reorganized without changing substance. Section 241 was left essentially unchanged, and neither in the 1874 revision nor in any subsequent re-enactment has there been the slightest indication of a congressional intent to narrow or limit the original broad scope of § 241. It is clear, therefore, that § 241, from original enactment through subsequent codifications, was intended to deal, as Mr. Justice Holmes put it, with conspiracies to interfere with “Federal rights and with all Federal rights.” We find no basis whatsoever for a judgment of Solomon which would give to the statute less than its words command.

“Under Color of Any Law”

We’re back to this, again.

Many modern civil rights statutes are the progeny of Reconstruction-era laws, and congruent language within those law is interpreted in tandem.  For instance, one analogous law, 42 U.S.C. § 1981, was interpreted as applying to both “private” and “state” discrimination by the Fourth Circuit in 1994.  The law was subsequently amended to codify that it explicitly applies to private parties.

A Second Circuit Court of Appeals case, Anderson v. Conboy (1998), noted § 1981’s “linguistic and structural similarities” with other criminal and civil laws.  The Anderson court explained that civil rights laws developed in post-Reconstruction America to protect “protect . . . Chinese [immigrants] against the local laws of California.”  So, the intent behind many federal civil rights laws is to protect individuals from state and local attempts to thwarts individual federal and constitutional rights.  In the 1960s civil rights era, prosecutions under § 241 and § 242 were successfully pressed against individual Klan members who acted in concert with the police — but the individual prosecutions stuck regardless of whether the defendants were themselves employed by the government.

When asked about the applicability of §§ 241-242 to Texas S.B. 8 plaintiffs, Prof. Wasserman noted that there is less case law on the books delineating the precise parameters of a § 242 criminal prosecution than there is to explain the mechanics of a § 1983 civil suit — and that’s one possible hurdle for the DOJ.  And most of the cases on the books involve conspiracies — not the pure delegation of enforcement function to nongovernment actors.

Willfulness

Perhaps the biggest hurdle to a § 242 prosecution, said Prof. Wasserman in a Friday telephone conversation with Law&Crime, is the requirement of willfulness.  The government would need to prove beyond a reasonable doubt that a defendant launched an S.B. 8 case with the specific intent of depriving an individual of a constitutional right (here, to an abortion).  And that requirement is almost always why prosecutors rarely move forward with § 242 cases unless they involve extremely serious matters.  Wasserman said the willfulness requirement is usually why police officers are not criminally prosecuted for depriving a suspect of his or her constitutional rights; he said it was a “big hurdle” for prosecutors in a hypothetical prosecution of an S.B. 8 plaintiff.

Practical Concerns

And then there are other practical concerns, Wasserman said. Prosecuting individual S.B. 8 plaintiffs might serve as a deterrent, but it won’t stop all other S.B. 8 plaintiffs. And the possibility of myriad individual prosecutions would tax DOJ resources.

Wasserman told Law&Crime that abortion clinics want blanket relief — and he suspected the DOJ might attempt to sue the State of Texas to stop the law. But that gets constitutionally tricky. Though the federal government has the ability to sue states in some circumstances, e.g., in Title 7 employment law enforcement actions, the federal government would be treading new ground in an attempt to sue a state government over a constitutionally embedded right such as abortion access.

What About “Threats of Force?”

Two other statutes might also come into play if the use of force is threatened by anyone who attempts to enforce Texas S.B. 8. The first, 18 U.S.C. § 245, applies to the use of “force” or the “threat of force” against persons who seek to “participat[e] in or enjoy[] the benefits of any program or activity receiving Federal financial assistance.” But it would not facially apply to the mere filing of lawsuits — “force” is necessary for the statute to afford relief. Another similar statute, 18 U.S.C. § 248, directly involves reproductive health services clinics; however, it too bans only the use of “force or threat of force” and not the filing of anti-abortion lawsuits.

Any attempt to use §§ 241-242 to criminally prosecute plaintiffs who file a Texas anti-abortion case would be novel and prone to attack. It might not be impossible, but for the aforementioned reasons, it would also be at least somewhat tricky. And if it worked, it might not provide the blanket enforcement provisions that the Biden Administration likely seeks. The same is true for individualized civil actions under § 1983.

Wasserman predicted that the current level of strategizing and the procedural gaming by anti-S.B. 8 advocates would would likely give way to a case which requires a look at the merits of the law: someone is likely going to have to perform an offending abortion, someone is going to have to sue over it, and the Supreme Court is going to have to determine if abortion is or is not constitutional.

Update, Sept. 6: Attorney General Garland released a statement on Monday, pointing to 18 U.S.C. § 248.

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, 18 U.S.C. § 248.

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. The department has consistently obtained criminal and civil remedies for violations of the FACE Act since it was signed into law in 1994, and it will continue to do so now.

The department 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.

Editor’s note: while Law&Crime was researching this piece, former Harvard Law professor Laurence Tribe suggested in a Sunday opinion piece for the Washington Post that the DOJ should indeed threaten to use §§ 241-242 prosecutions against S.B. 8 plaintiffs. His analysis of the matter is here. Law&Crime has also added Attorney General Garland’s statement.

[Image via Kevin Dietsch/Getty Images]