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Texas abortion ruling opens door to constitutional netherworld

Political warfare is breaking out as states propose legislation at odds with constitutional rights. 

WASHINGTON (CN) — Responding to the Supreme Court's cabining of a challenge to the six-week abortion ban in Texas, California Governor Gavin Newsom precipitated what could become an avalanche of vigilante litigation with his plan to craft copycat legislation against guns.

No text of the bill is available yet. Newsom explained Saturday only that he will allow private citizens to sue anyone who manufactures, distributes or sells an assault weapon or ghost gun kit or parts in California for $10,000. 

The announcement came a day after the high court whittled away at two challenges to Texas’ Senate Bill 8, which bans all abortions after six weeks — before most women know they are pregnant. SB 8 is unique because it has evaded pre-enforcement review by delegating its enforcement to citizens who will be rewarded with a bounty. 

Abortion providers sought to challenge the law, but since its enforcement mechanism is so unique, they ran into roadblocks like deciding who to sue to stop the ban. They filed suits against state clerks and judges, officials who have authority over medical licenses, and the attorney general. Only those with authority over medical licenses will face the suit going forward, however, after Friday's largely procedural ruling from the high court's most conservative justices. 

“The majority has unfortunately lost the forest for the trees,” Richard Bernstein, an appellate lawyer, said in a phone call about the decision. “They had equitable discretion to expand Ex Parte Young to include state courts when private parties are acting as state prosecutors, as they are here. Either because they got lost in the trees or because of their partisan viewpoint, they chose to ignore that discretion.” 

While the court has narrowed what course abortion providers can take as they challenge a law conflicting with longstanding abortion precedent, the cases Roe v. Wade and Planned Parenthood v. Casey, it also opened the door for similar legislation in other states focused not only on abortion but any constitutional right the state legislature deems adverse. 

“If you care about any constitutional right, you should be concerned about a mechanism that allows states to evade the Constitution and impose these SB 8-like requirements,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a phone call. “Whether it's abortion, whether it's free speech, whether it's the Second Amendment — anything that you care about — you should be concerned about states circumventing their constitutional obligations by doing what Texas did in SB 8.” 

By handing the enforcement mechanism over to citizens and creating confusion on how to mount a pre-enforcement challenge to laws, SB 8 allows state legislatures to make laws that conflict with constitutional rights established by the court. The enforcement mechanism is the secret sauce, in a sense. State legislatures have previously made laws conflicting with the court’s precedents. They get challenged before enforcement. Once they make it to the Supreme Court, then the justices can decide to overrule their own precedents. This law skips those steps. 

“It really strikes me that the Supreme Court is flirting with lawlessness,” Lawrence Gostin, a professor at Georgetown Law, said in a phone call. “That is, they are flirting with the idea that a state can intentionally gerrymander its law to avoid constitutional scrutiny under established Supreme Court precedent. Imagine if that was done to avoid enforcement of Second Amendment rights?” 

The court was not blind to these consequences — specifically on gun rights — because a gun rights advocacy group, the Firearms Policy Coalition, filed an amicus brief in the abortion providers case specifically asking the court not to create this precedent for fear Democratic states would do exactly what Newsom has threatened. 

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Erik Jaffe, the counsel of record for the group, said he was not surprised to see Newsom propose the legislation against gun rights. 

“My reaction is, this was obvious, we said it was obvious, turned out it was obvious — which is why we said it — and let's see how good a copycat he is,” Jaffe said in a phone call.  

As Jaffe sees it, the easiest path for Newsom would be to pass a new law banning something that is not currently banned and that directly conflicts with the court’s precedent. An example of this would be to say all handguns are banned — which would directly conflict with the court’s precedent in District of Columbia v. Heller. The legislation would then have to say no state officials can ever enforce the law and only private citizens can enforce it. 

“Then we'll get to really see where a state basically giving the big F.U. to a Supreme Court precedent — right in the teeth of that precedent — and only letting citizens enforce it, whether that works,” Jaffe said. 

The narrow ruling in the Texas case could also affect how state legislatures design copycat legislation. The Texas law operates using agencies in Texas that can enforce the law indirectly. Some states might not be able to enforce laws in the same way, and some states might not have any agency or person to sue. 

“It is not just a very narrow path for our case in SB 8, but it's a narrow path for other copycats, too, given how Texas law operates,” Amiri said. “The agencies in Texas have the ability to enforce the law indirectly. That might not always be true in other states, and in some places a copycat could mean that there is no agency or anybody to sue affirmatively. So … it will vary from state to state as the evaluation about what could be pursued is going to be state specific.” 

Justice Sonia Sotomayor acknowledged in a partial dissent Friday that the court was opening itself up to legislation that will override its precedents. 

“I dissent, however, from the Court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review,” the Obama appointee wrote. “By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.” 

Justice Neil Gorsuch scolded Sotomayor for suggesting this, writing in the majority opinion that her “rhetoric bears no relation to reality.” Gorsuch said, if copycat legislation is passed, they will be able to have a pre-enforcement challenge just like what happened in the Texas case — but that anything beyond that is in the hands of Congress. 

“To the extent Justice Sotomayor seems to wish even more tools existed to combat this type of law, Congress is free to provide them,” the Trump appointee wrote. 

It is unclear if the court would rule on an SB 8 copycat for gun rights in the same way they did on abortion. They have three options: say the ruling was wrong and course correct — probably the least likely — distinguish the other rulings from the Texas case, or allow the vigilante litigation to run wild.  

“They have sanctioned a form of state-sponsored political warfare that the rest of the society is left to keep from getting out of hand with no help from the Supreme Court,” Bernstein said. 

There is also a concern that this controversial ruling is coming at a difficult moment for the country. 

“It is beyond unfortunate that the Supreme Court's reaction to a country that is so torn apart that it had an insurrection on January 6, their reaction is oh, this seems like a good time to allow vigilante litigation,” Bernstein said. 

Second Amendment rights have been an easy comparison for many speculating on copycat legislation but there are many other rights that could be in jeopardy as a result of this ruling. 

“It could be in voting rights, gerrymandering. It could be even in immigration and migration,” Gostin said. “All of the political hot buttons are up for grabs now.” 

There is another factor to consider besides the Supreme Court in a case like Newsom proposed, does he have the political power to pull it off. While this legislation would be Democrats playing the same game as Republicans have done in Texas, it would also force them to do something they have decried as unconstitutional. 

“I wish that Governor Newsom would not do that,” Gostin said. “Even though I'm a huge supporter of smart gun safety laws, no public official — whether Democrat or Republican — should be intentionally designing their laws to evade constitutional adjudication. That is just as bad coming from a Democrat as it is from a Republican. It shouldn't matter whether you support abortion or don't or support Second Amendment rights or don't.” 

If governors or state legislatures decide to create copycat legislation like SB 8 to enforce their political wish lists in the face of constitutional rights, that could become a slippery slope. 

“I don't want anybody to play dirty with the rule of law in the United States because our democracy is becoming fragile,” Gostin said. “If the rule of law becomes fragile, we'll have lost America.”  

Follow @KelseyReichmann
Categories / Civil Rights, Government, Law, Politics

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