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Supreme Court Abortion Ruling Paves Way for Copycat Laws (1)

Dec. 10, 2021, 7:05 PMUpdated: Dec. 10, 2021, 8:22 PM

The Supreme Court’s ruling leaving Texas’ six-week abortion ban in place while allowing challenges to continue opens the door for copycat laws targeting constitutional rights, as long as other states do a little tweaking.

The court ruled 8-1 that the providers could sue state licensing officials in charge of disciplining doctors who violate the law, known as S.B. 8. But five justices also said providers couldn’t sue other state officials, such as court clerks or the state attorney general.

That ruling will give states “the political cover to go ahead and enact harsh restrictions on abortion providers that cowardly place enforcement in the hands of private parties through expensive civil lawsuits,” said Ciara Torres-Spelliscy, a law professor at Stetson University.

Writing in dissent, Justice Sonia Sotomayor said the ruling could reach beyond abortion, allowing states to enact laws that effectively nullify constitutional rights from abortion to guns to religion.

The “Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree,” Sotomayor said.

Disfavored Rights

States may only have to do a little tweaking to the Texas law or be more specific when writing others like it to undermine the court’s limited ruling.

Since the court ruled that only licensing officials charged with disciplining doctors who violate the law can be sued, “Texas or any other state could easily insulate SB8-type laws from review by simply stating that no executive officials, including officials charged with enforcing other abortion regulations, have the authority to enforce” S.B. 8, said Nikolas Bowie, a Harvard Law School professor.

The court was clearly trying to find a way to let the case continue, so they pointed to some loophole and seemingly contradictory language in state law that authorized the state agencies to enforce it, said John Seago, legislative director for Texas Right to Life, the group that helped craft S.B. 8.

Just clarifying in their law as states draft legislation with similar schemes that the legislature intended to limit the authority of licensing boards and administrative agencies would clear that up, he said.

“It’s just a matter of making that clear in the law,” Seago said.

Sotomayor noted that copycat bills targeting abortion are already being considered in states including Florida, Arkansas, Indiana, North Dakota, Mississippi, South Dakota, and Ohio.

In its brief in support of the abortion providers, the Firearms Policy Coalition, a gun rights group, told the justices that Second Amendment rights are most likely the next targets.

“They’ve laid the roadmap on exactly how to do it, and how to do it more effectively,” said Eric Jaffe, who filed the brief for the Firearms Policy Coalition in support of the abortion providers.

Justice Neil Gorsuch, who wrote the court’s majority opinion in Whole Woman’s Health v. Jackson, said the answer is for those challenging state laws to go to state courts.

“The truth is, too, that unlike the petitioners before us, those seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments,” Gorsuch wrote.

The practical result is that these cases will take longer to decide, Jaffe said.

There’s always the backstop of review by the U.S. Supreme Court should state courts upholds laws that violate the federal Constitution. “But that’s a rare phenomenon, at best,” Jaffe said.

Dramatic Effects

Legal scholars say there are all sorts of different contexts in which states may follow in Texas’s footsteps.

“Legislatures can effectively come up with mechanisms to nullify all different sorts of constitutional rights that they don’t like, said Jon Greenbaum, chief counsel at the Lawyers’ Committee for Civil Rights Under Law.

“Presumably, California could pass a law saying any church that has a church service where they’re not requiring everyone to be vaccinated and wear masks can be sued by any individual, and that individual can get a $10,000 bounty from that church,” he said.

Greenbaum called the court’s decision one of the most radical he’s ever seen.

“It’s going to take awhile for us to absorb what the ultimate effects are going to be, but the effects could be pretty dramatic when it comes to constitutional rights,” he said.

Elizabeth Sepper, a professor at the University of Texas at Austin School of Law, however, doubts states controlled by Democrats will be apt to copy the enforcement scheme used by Texas in other legislation.

“They’re not going to set up a conflict that the Supreme Court will have to deal with,” she said.

—With assistance from Mary Anne Pazanowski

(Updates with additional comments starting at paragraph 11.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com