The state legislature in Texas developed a too-clever-by-half law to effectively circumvent the constitutional right to abortion as determined in the 1973 US Supreme Court ruling Roe v. Wade. It said that the state would not enforce the law but allowed ordinary citizens to sue abortion provides and offered them with a $10,000 bounty for doing so. Last week, the US Supreme Court refused to issue a stay of the Texas law while the review process was underway but did allow abortion providers to sue certain Texas officials.
Five conservative justices, including three appointed by former President Donald Trump, formed a majority to limit who can be sued by the clinics, a result that both sides said probably will prevent federal courts from effectively blocking the law.
Texas licensing officials may be sued, but not state court judges, court clerks or state Attorney General Ken Paxton, the court ruled. That seems to leave people free, under the unusual structure of the Texas law, to sue abortion clinics and anyone else who “aids or abets” an abortion performed after cardiac activity is detected in an embryo, around six weeks and before some women know they’re pregnant.
“The Supreme Court has essentially greenlit Texas’s cynical scheme and prevented federal courts from blocking an unconstitutional law,” the Center for Reproductive Rights, which represents the Texas clinics, said on Twitter.
Abortion providers will now attempt to run the same legal gantlet that has previously frustrated them. The federal judge who already has once blocked the law, known as S.B. 8, almost certainly will be asked to do so again. Then his decision would be reviewed by the 5th U.S. Circuit Court of Appeals, which has twice voted to allow enforcement of the abortion ban.
In any case, it all could return to the justices, and so far there have not been five votes on the nine-member court to put the law on hold while the legal fight plays out.
But it was quickly pointed out that that Texas model could be used to circumvent other constitutional protections and yesterday California’s governor Gavin Newsom announced plans to pass legislation that would target guns.
California Gov. Gavin Newsom on Saturday pledged to empower private citizens to enforce a ban on the manufacture and sale of assault weapons in the state, citing the same authority claimed by conservative lawmakers in Texas to outlaw most abortions once a heartbeat is detected.
California has banned the manufacture and sale of many assault-style weapons for decades. A federal judge overturned that ban in June, ruling it was unconstitutional and drawing the ire of the state’s Democratic leaders by comparing the popular AR-15 rifle to a Swiss Army knife as “good for both home and battle.” California’s ban remained in place while the state appealed.
Newsom’s gun proposal would first have to pass California’s state Legislature before it could become law. The Legislature is not in session now and is scheduled to reconvene in January. It usually takes about eight months for new bills to pass the Legislature, barring special circumstances.
Newsom’s Saturday night declaration is a fulfilled prophecy for some gun rights groups who had predicted progressive states would attempt to use Texas’ abortion law to restrict access to guns. That’s why the Firearms Policy Coalition, a nonprofit group that advocates for gun rights, filed a brief with the U.S. Supreme Court opposing the Texas law.
“If Texas succeeds in its gambit here, New York, California, New Jersey, and others will not be far behind in adopting equally aggressive gambits to not merely chill but to freeze the right to keep and bear arms,” attorney Erik Jaffe wrote on behalf of the Firearms Policy Coalition.
It will be interesting to see what effect this gambit by Newsom will have on the Texas abortion law. Other states like Massachusetts and Maryland and Connecticut that have also tried to limit the epidemic of guns but been thwarted by the courts may also join it.