Texas law S.B. 8 bans pre-viability abortions, which is something that Texas lawmakers are specifically prohibited from doing under existing U.S. Supreme Court precedent. To dodge legal accountability in federal court, those state lawmakers outsourced S.B. 8's enforcement to private actors. According to the law, "any person" may sue "any person who…aids or abets the performance or inducement of abortion" and win at least a $10,000 bounty plus legal fees if the civil suit is successful. Because no state official is doing the enforcing, Texas maintains, no state official may face a pre-enforcement proceeding in federal court over this obvious denial of a judicially recognized constitutional right.
The U.S. Supreme Court heard oral arguments today in two related cases that question whether Texas' novel legal scheme should be allowed to stand. Justice Brett Kavanaugh cut to the heart of the matter, asking Texas Solicitor General Judd Stone about "the implications of your position for other constitutional rights."
What if a state passed a law that says "everyone who sells an AR-15 is liable for a million dollars to any citizen," Kavanaugh asked the Texas official. "Would that kind of law be exempt from pre-enforcement review in federal court?"
Stone conceded that his theory would shield that gun control law too. "My answers on whether or not federal court review is available does not turn on the nature of the right," he told Kavanaugh.
So "Second Amendment rights, free exercise of religion rights, free speech rights," Kavanaugh emphasized, could all "be targeted by other states" using the Texas abortion law as a model. "And you also said that the amount of the penalty doesn't matter, a million dollars per sale," Kavanaugh added. "A state passes a law [that says] anyone who declines to provide a good or service for use in a same-sex marriage, a million dollars if sued by anyone in the state, that's exempt from pre-enforcement review?"
"Is that a yes?" Kavanaugh pressed the Texas official.
"Yes, your honor," Stone replied.
Later, Justice Sonia Sotomayor picked up on Kavanaugh's line of questioning. "A state dissatisfied with [District of Columbia v.] Heller says anyone who possesses a firearm anywhere is subject to litigation by any private citizen anywhere in the country and gets a million-dollar bounty," Sotomayor said to Stone. "So this is not limited to abortion." This is about any right "that a state is dissatisfied with."
"Your point," Sotomayor told Stone, "is that no matter how much a state intends to chill the exercise of a constitutional right…that does not give anyone a right to a federal forum when the state has deputized every citizen to act on its behalf."
Kavanaugh and Sotomayor are correct. If allowed to stand, the structure of S.B. 8 will be copied by every state legislature that wants to restrict an unpopular right that the Supreme Court has recognized. That outcome should worry Americans of all political stripes.