The FACE Act is not enough to face the threats of the Texas Anti-Abortion Law
Attorney General Merrick Garland has said that the Justice Department will utilize the Freedom of Access to Clinic Entrances (FACE) Act to protect those seeking reproductive health services in Texas in the wake of the new abortion ban. As the author of the original 1994 bill, Legal Momentum believes this is a well-intentioned but wholly insufficient strategy to protect the constitutional rights of those seeking abortions in Texas.
Legal Momentum drafted the FACE Act in 1994 to protect people from physical intimidation, threats, and violence as they sought reproductive health services, including abortion. When FACE was signed into law, escalating physical violence outside of clinics was a major threat to those seeking and providing reproductive healthcare, violating the constitutional right to access abortion services guaranteed by Roe v. Wade.
We know the FACE Act, and we believe in it—but we also know its limitations. The bill’s language specifically prohibits acts and threats of physical violence at the clinic door, the most pressing issue at the time. It does not cover the kind of serious, albeit non-physical, intimidation baked into the new Texas law.
The Texas law is a total invasion of the life and privacy of women and those needing abortion care. It bars abortion after about six weeks of pregnancy, with no exceptions for rape and incest. Many women, and certainly young girls, do not even know they are pregnant within that time frame. Indeed, it is often impossible for medical providers to confirm a pregnancy until just before this time. The Texas law incentivizes this invasion by turning private citizens into bounty hunters. The law authorizes private citizens to sue anyone they suspect of having assisted someone to obtain an abortion. They can sue a doctor, a taxi driver who transported a patient to a clinic, a friend who provided financial assistance, a family member who provided guidance. The person suing can be a total stranger with no connection whatsoever to the woman in the case. And if that lawsuit is successful, the plaintiff will be awarded at least $10,000 per abortion.
What can we expect from this right-to-sue law? Anti-choice groups are promoting these law suits. Texas Right to Life has what it calls a "whistleblower" website inviting people to submit anonymous tips. Those inclined to physical violence and intimidation at the clinic door are now emboldened, and aided by the Texas legislature, to carry out their intimidation and abuse in our legal system. The availability of abortion care is already disrupted. Countless pregnant Texans are right now faced with impossible choices, maybe no choices at all.
We need new, specific legislation to counter these new, specific threats to the constitutional rights of people in Texas to safely access reproductive health services including abortions: protect them physically, legally, and financially.
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