Texas abortion law model could spread to guns, free speech, Supreme Court is told

The ‘possibilities are limitless’ for copycat laws that target other rights, abortion providers and experts contend

 Storm clouds hang over the Supreme Court building in Washington on Sept. 23, 2021.  (Bill Clark/CQ Roll Call file photo)
Storm clouds hang over the Supreme Court building in Washington on Sept. 23, 2021. (Bill Clark/CQ Roll Call file photo)
Posted October 28, 2021 at 5:00am

The Supreme Court faces arguments that a novel enforcement scheme Texas created for its abortion law could be used by states to neutralize other constitutional rights related to guns, protests, campaign finance and more.

The warning comes from not only the Justice Department and the abortion providers that have challenged the Texas law but also constitutional scholars, states, former prosecutors and law enforcement officials and a California-based nonprofit group that pushes for gun rights.

“It is hardly speculation to suggest that 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,” the Firearms Policy Coalition told the justices in a brief.

The structure of the Texas abortion law so far outflanked the typical process to halt enforcement of a law while a constitutional challenge moves through the court system. Some legal experts contend the potential spread of similar laws ultimately threatens the authority of the Supreme Court itself.

The justices have agreed to decide procedural questions on lawsuits from the Justice Department and abortion providers, which argue courts can step in to halt a law that flouts long-standing Supreme Court precedents such as those that established the right to abortion. Oral arguments are set for Monday.

Whole Woman’s Health and other abortion providers told the court abortion is the target today, but the “possibilities are limitless” for copycat laws that target other rights.

“Tomorrow, it might be gun buyers who face private, civil liability for firearm purchases. Same-sex couples could be sued by neighbors for trying to obtain a marriage license,” the providers wrote in a petition. “States could give citizens a right to sue any newspaper that criticized the incumbent government. Unpopular political groups could be barred from gathering under threat of vigilante lawsuits.”

And the Justice Department pointed out that states could ban possession of handguns in the home, contrary to the Supreme Court’s ruling from 2008 in District of Columbia v. Heller, or prohibit independent corporate campaign advertising, contrary to the Citizens United v. FEC decision in 2010.

“Those statutes, too, would violate the Constitution as interpreted by this Court,” the Justice Department wrote in its application to the court. “But under Texas’s theory, they could be enforced without prior judicial review, chilling the protected activity,” and also limit the defense to only after each specific civil action brought.

‘State-sanctioned lawlessness’

The defenders of the Texas law — including Jonathan F. Mitchell, the man who conceived of a design that “boxed out the judiciary” from stopping the law before it went into effect — dispute that it will be used in matters other than abortion. But others suggest Texas-style laws would give state legislatures a way to circumvent Supreme Court rulings they don’t like for as long as it takes courts to decide a legal challenge.

Michael Dorf, a Cornell University law professor, filed a brief in the case with other legal scholars that cautioned that the wrong result could lead states to do end runs around constitutional rights.

Dorf wrote separately Wednesday that although the issues on tap Monday involve some fairly abstruse legal questions, “fundamentally they present a simple one: will the Supreme Court of the United States permit state-sanctioned lawlessness?”

And a group of former prosecutors and law enforcement officials told the justices in a brief that allowing the law to remain in effect will “send the message that each State is effectively a law unto itself and can eviscerate any constitutional safeguard its legislature dislikes.”

At the heart of the issue: Texas forbade state officials from enforcing a law that bans abortions after about six weeks and instead gave that authority to private citizens, who can file state civil actions for minimum damages of $10,000 against those who perform abortions.

That leaves courts uncertain about whom courts can order to stop enforcement, and whether the Justice Department has the right to file a lawsuit to contest it.

So far, the Supreme Court has allowed the Texas law to go into effect for the past two months, after a sharply divided 5-4 ruling in the case brought by abortion providers. The majority cited the “complex and novel” procedural questions raised by the unusual design of the law.

Justice Elena Kagan, in a dissent joined by Justices Stephen G. Breyer and Sonia Sotomayor, called it “untenable” that a state could “evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”

The law essentially bans procedures after about six weeks of pregnancy, which the Justice Department says covers about 85 to 95 percent of all abortions in the state. Texas women now must travel out of state if they want to end a pregnancy under the current Supreme Court precedent of viability. Some don’t have the time, money or ability to do so.

Power to enforce rulings

The Firearms Policy Coalition suggested to the justices that at this point the procedural dispute over the Texas law is less about abortion and more about the power of the Supreme Court to enforce its rulings on constitutional issues — particularly the Second Amendment.

The group brought up other possibilities, such as bounties against people refusing to be vaccinated or wear a mask, labor picketers or anyone who criticizes the government on issues such as school choice and policing.

“Courts can worry about the right to speak, assemble and petition when a case is brought,” the nonprofit wrote. “But in the meantime, protesters can proceed at their own risk” and hope the Supreme Court agrees to hear their appeal “after years of litigation in state courts and a potential string of hostile rulings.”

Mitchell, the architect of the law who also wrote a brief on behalf of state officials involved in the lawsuits, downplayed the possibility that the style would spread.

That’s in part because the Supreme Court now is considering whether to overrule its abortion precedents, in a case about Mississippi’s ban after 15 weeks of pregnancy in most cases, Mitchell wrote. That is in a separate Supreme Court case set for arguments in December.

“That does not portend that the states will employ this tactic against better-reasoned Supreme Court rulings, or against doctrines that enjoy strong support among the current justices,” Mitchell wrote.

Before Texas passed its scheme, all federal appeals courts that have considered similar bans prior to viability have stopped the enforcement under the Supreme Court’s precedents.

Judges don’t have the power simply to block laws on a statewide basis. Ordinarily, constitutional challenges are filed against the state officials who enforce the law, and judges can order those officials not to do so.

But with SB 8, Texas expressly prohibits state officials from directly enforcing the law. Earlier this month, a federal district judge sided with the Justice Department and entered an emergency order for Texas to prevent state officials and judges from doing anything to enforce the law.

A federal appeals court put that on hold and allowed Texas to keep its abortion ban in place while courts contemplate the Justice Department’s legal challenge.

The justices quickly set oral arguments and limited it to procedural questions, not the broader issue about the constitutionality of Texas’ ban — a sign to many court watchers that the justices might rule quickly as well.