S.B. 8, a Texas law that took effect on September 1, 2021, bans pre-viability abortions, which is clearly unconstitutional under the U.S. Supreme Court's precedents. To dodge legal accountability for that in federal court, Texas outsourced S.B. 8's enforcement to private actors.
The law authorizes "any person" to sue "any person" who performs or facilitates an abortion after fetal cardiac activity can be detected, which typically happens around six weeks into a pregnancy. It promises successful plaintiffs a bounty of at least $10,000, plus reimbursement of their legal fees. Because state officials are not implementing the law, Texas maintains, they cannot be sued in federal court to block its enforcement.
In November, when the Supreme Court considered the viability of that dodge, 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. "Would that kind of law be exempt from pre-enforcement review in federal court?"
Stone conceded that his argument meant it would. His answer, he said, "does not turn on the nature of the right."
In other words, Kavanaugh said, "Second Amendment rights, free exercise of religion rights, free speech rights" could all "be targeted by other states" using the Texas abortion law as a model. "You also said that the amount of the penalty doesn't matter," 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 [is liable for] a million dollars if sued by anyone in the state—that's exempt from pre-enforcement review?"
Stone was clear: "Yes, Your Honor."
Justice Sonia Sotomayor later picked up on the same line of questioning. Suppose, she said, "a state dissatisfied with [District of Columbia v.] Heller," the landmark decision upholding the Second Amendment right to keep and bear arms for self-defense, "says anyone who possesses a firearm anywhere is subject to litigation by any private citizen anywhere in the country," who "gets a million-dollar bounty." The issue "is not limited to abortion," she noted. It implicates any right "a state is dissatisfied with."
Kavanaugh and Sotomayor are correct to worry. If it is upheld, state legislators easily could use the strategy embodied in S.B. 8 to attack other rights the Supreme Court has recognized. That prospect should trouble Americans of every political stripe.
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