A gun rights group is siding with abortion providers in the Texas dispute over the nation’s strictest abortion ban.
The law, S.B. 8, was designed with procedural quirks that are intended to insulate it from judicial review by allowing private citizens, not government officials, to enforce the ban. The move has been successful, allowing the law to go into effect for nearly two months and halting almost all abortions in the state after six weeks.
But Erik Jaffe, who filed the amicus brief on behalf of the nonprofit group Firearms Policy Coalition, fears the law could be used to limit other constitutional rights, in particular the Second Amendment.
“It’s hard to miss the parallels between abortion and guns,” said Jaffe, a former clerk to Justice Clarence Thomas who is also part of the team helping to defend Indiana’s abortion restrictions.
‘Evade Court Review’
The concerns expressed in Jaffe’s brief are shared across the political spectrum.
Take almost any individual constitutional right and it “could easily fall into a similar scheme by any state that disfavors that right,” said Brigitte Amiri of the ACLU, which represents the Texas abortion providers.
“If a state can do this here, why can’t it do it in other contexts?” Amiri asked.
That includes everything from rules restricting guns, requiring face masks, or prohibiting criticism of public officials, Jaffe said.
Amiri said the Texas case is about whether a state can “pass an unconstitutional law and do so in a way that would evade court review.”
The state argues that judicial review is still available under the law—just not in the way the abortion providers would like.
“Petitioners’ constitutional grievances do not permit the federal courts to disregard the limits of their own jurisdiction,” the state told the justices in urging them not to take the case.
“Federal courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws,” it said, saying that the abortion providers must wait until they are sued in state court to challenge the constitutionality of the law.
Amiri said the Texas law “is a blatantly unconstitutional law under current Supreme Court precedent.” She noted, however, that the question of whether to overturn that existing precedent is directly at issue in a separate case that the justices will weigh this term, Dobbs v. Jackson Women’s Health Organization.
The Supreme Court stopped short of pausing S.B. 8 while the litigation plays out, saying in an unsigned Sept. 1 order that although the abortion providers “raised serious questions regarding the constitutionality of the Texas law at issue,” the justices couldn’t intervene because there were “complex and novel antecedent procedural questions.”
Most notably the law allows private citizens to enforce the ban by initiating lawsuits against anyone who “aids or abets” an abortion.
Without government officials enforcing the law, it’s hard to know who to sue, Amiri said, a question the justices have fast-tracked to hear Nov. 1. Along with the suit brought by the abortion providers, the justices will also consider the Biden administration’s attempt to sue Texas to enforce abortion rights.
Moreover, the law includes draconian statutory penalties, cost-shifting measures favoring anti-abortion activists, and broad rules that allow abortion providers to be sued anywhere in Texas.
Texas is “about as bold and shameless as possible,” in “putting a thumb on the scale to make it impossible to litigate these cases,” Jaffe said.
‘Fast and Loose’
That’s why Jaffe filed a friend-of-the-court brief supporting the abortion providers—to call out the implications for other constitutional rights.
“To the extent this tactic is effective at evading or outright blocking preenforcement review, while allowing the significant and largely decisive deterrent to persist unless and until a direct application of the law is reviewed by this Court, it will easily become the model for suppression of other constitutional rights, with Second Amendment rights being the most likely targets of such suppression,” Jaffe wrote in a brief urging the justices to consider the case.
“People think Roe should be overruled,” Jaffe said, referring to the court’s landmark 1973 abortion decision. “Everyone else on the other side thinks Heller should be overruled,” he said, referring to the court’s 2008 ruling affirming the right to own a gun in the home.
But until the Supreme Court actually overturns its precedent, states must enforce constitutional law, Jaffe said.
“You don’t get to play fast and loose with the procedure,” he said.
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