The Volokh Conspiracy
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Whatever one's views of abortion, there are reasons to be concerned about the legal mechanisms deployed in Texas S.B. 8. In a prior post, I noted how the position of abortion providers under S.B. 8 bears some similarities to the way the Environmental Protection Agency treated the Sacketts.
Yesterday, the Firearms Policy Coalition filed a brief in support of Whole Woman's Health's petition for a writ of certiorari before judgment in Whole Woman's Health v. Jackson. The brief raises concerns about the structure of S.B. 8 and how this structure could be applied to deny judicial review of governmental actions that restrict other constitutional rights (such as gun rights).
Here's the summary of the brief's argument:
The importance of this petition is not about any debate over the existence or scope of any constitutional right to abortion. Indeed, Amicus takes no position on such questions, which are before this Court in other cases. Rather, this case is about access to the means of enforcing individual constitutional rights, as determined by this Court's cases, and protecting against their infringement, regardless of the particular right involved. Texas's novel scheme for infringing upon and chilling the exercise of the right to abortion under this Court's Roe and Casey decisions while seeking to evade judicial review, if allowed to stand, could and would just as easily be applied to other constitutional rights. That result is wholly anathema to our constitutional scheme, regardless what one thinks of abortion or, indeed, of any other hotly debated constitutional right, such as the right to keep and bear arms.
1. The petition presents an important question warranting this Court's early and expedited review because, if Texas's scheme for postponing or evading review is successful here, it will undoubtedly serve as a model for deterring and suppressing the exercise of numerous constitutional rights. New York is already experimenting with private enforcement of anti-gun laws raising significant Second Amendment issues and will no doubt gladly incorporate the lessons of this case to insulate its future efforts to suppress the right to keep and bear arms. Other States, targeting those and other rights, will not be far behind. Indeed, a private bounty scheme could easily be modified to target persons who criticize the government, refuse to wear masks or get vaccinated, make negligent or harmless false statements on public issues, or engage in any other protected but disfavored conduct. And, if Texas's asserted procedural barriers to preenforcement review are upheld, there is no reason to think the penalties couldn't be made even more draconian, thus increasing the deterrent and chill of constitutionally protected activity. The precedent this law sets as a model for deterring the exercise of any and all rights makes this case one of tremendous importance and worthy of this Court's prompt consideration.
2. It is well established across numerous cases that laws that deter or chill the exercise of constitutional rights violate those rights. Such deterrence or chill constitutes a present harm for which litigants can seek present redress without having to violate the laws in question and absorb the tremendous risks of thereby putting their heads on the proverbial chopping block. Even where the risk derives from prospective litigation initiated by private parties relying on state law, such risks are still the product of state action and imposed by state actors. Whether such state actors are the "deputized" potential plaintiffs or the court officials and jurists that wield the power of government at every stage of the litigation process, the chilling effect here derives from the bending of state power to such ends. In such circumstances, there should be no serious barrier to enjoining any and all state actors who facilitate or play a role in such a farce. To the extent any of this Court's sovereign immunity jurisprudence even hints otherwise, such cases have strayed from the text, structure, and logic of the Constitution and should be reconsidered.
And here is the conclusion:
This case is important not because of its specific subject matter of abortion, 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. It is one thing to disagree with precedents and seek their revision or reversal through judicial, congressional, or constitutional avenues; it is another simply to circumvent judicial review by delegating state action to the citizenry at large and then claiming, with a wink and a nod, that no state actors are involved.
From Amicus's perspective, 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. While the political valences of those issues seem to be opposites, the structural circumstances are too similar to ignore. As with Roe and Casey, many States view Heller as wrongly decided. Those States, with the help of many circuit courts, have showed an ongoing refusal to accept the holding in Heller and a continuing creativity in seeking to circumvent any protections for, and to chill the exercise of, Second Amendment rights. It is hardly speculation to suggest that if Texas succeeds in its gambit here, New York, California, New Jersey, and others will not be far behind in adopting equally aggressive gambits to not merely chill but to freeze the right to keep and bear arms.
UPDATE: The Court granted certiorari.