The legal conflict over abortion often divides Americans along predictable political lines. The fight over Texas' new anti-abortion law, however, has now united gun rights activists and abortion rights activists on the same side.
The Firearms Policy Coalition, a national gun rights outfit, filed a friend of the court brief at the U.S. Supreme Court yesterday in support of Whole Woman's Health, the abortion rights group that is leading the legal fight against Senate Bill 8, the sweeping Texas anti-abortion law that recently went into effect.
"The approach used by Texas to avoid pre-enforcement review of its restriction on abortion and its delegation of enforcement to private litigants," the gun rights group told the Supreme Court, "could just as easily be used by other States to restrict First and Second Amendment rights or, indeed, virtually any settled or debated constitutional right." The Firearms Policy Coalition "takes no position on whether abortion should be protected by the Constitution," the brief stated, "but believes that the judicial review of restrictions on established constitutional rights, especially those protected under this Court's cases, cannot be circumvented in the manner used by Texas."
S.B. 8 was designed by Texas lawmakers to allow the state to dodge accountability for its own law in federal court. How? By outsourcing the law's enforcement to private actors. According to S.B. 8, "any person" may sue "any person who…aids or abets the performance or inducement of abortion" and win a $10,000 bounty plus legal fees if the civil suit is successful. According to Texas, this scheme insulates the state from having to answer for its law in federal court since no state official is enforcing the law.
The Supreme Court declined to block the law from going into effect last month, with a 5-4 majority stating that while Whole Woman's Health had "raised serious questions regarding the constitutionality of the Texas law at issue," the law also raised "complex and novel antecedent procedural questions" that the majority did not wish to tackle at that time.
The Firearms Policy Coalition is now urging the Supreme Court to directly tackle those questions. "This case is important not because of its specific subject matter of abortion," the gun rights group stated in its brief, "but instead for Texas's cavalier and contemptuous mechanism for shielding from review potential violations of constitutional rights as determined by this Court's precedents." Make no mistake, the Firearms Policy Coalition warned, in what may be seen as a direct message to those members of the Court that care about the Second Amendment, "if pre-enforcement review can be evaded in the context of abortion it can and will be evaded in the context of the right to keep and bear arms."
That is exactly right. Texas' legal stunt against abortion will be copied by other states for use against other unpopular rights. Liberals are right to be worried about this law. Conservatives should be worried about it too.