Laurence Tribe: What the DOJ Can Do About the Texas Abortion Law
The Texas legislature and five Supreme Court justices have joined forces to eviscerate women’s abortion rights — the legislature by creating and the justices by leaving in place a system of private bounties designed to intimidate all who would help women exercise the right to choose. But the federal government has — and should use — its own powers, including criminal prosecution, to prevent the law from being enforced and to reduce its chilling effects.
Of course, the best approach would be for Congress to codify the right to abortion in federal law, although Democrats likely lack the votes to make that happen — and there is a risk that this conservative Supreme Court would find that such a statute exceeded Congress’s authority under the Commerce Clause.
But as President Biden calls for a “whole of government” response to the fact that thousands of women in Texas — and no doubt soon elsewhere — are being denied their constitutional rights, there are other solutions that already exist in federal law.
Attorney General Merrick Garland has the power, under federal civil rights laws, to go after any vigilantes who employ the Texas law to seek bounties from abortion providers or others who help women obtain abortions.
The attorney general should announce, as swiftly as possible, that he will use federal law to the extent possible to deter and prevent bounty hunters from employing the Texas law. If Texas wants to empower private vigilantes to intimidate abortion providers from serving women, why not make bounty hunters think twice before engaging in that intimidation?
For example, Section 242 of the federal criminal code makes it a crime for those who, “under color of law,” willfully deprive individuals “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”
This statute — originally designed to go after the Ku Klux Klan — fits the Texas situation perfectly: The bounty seekers, entitled under the Texas law to collect penalties of at least $10,000, have been made, in effect, private attorneys general of Texas. They act “under color of state law,” and unless and until Roe v. Wade is overruled, they unmistakably intend to prevent the exercise of a constitutional right.