Texas law S.B. 8. This bans abortions before viability, something Texas legislators are prohibited by existing U.S. Supreme Court precedent. These state legislators outsourced S.B. in order to avoid legal accountability before federal courts. 8 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. Texas asserts that the state officials are not doing the enforcing and therefore no pre-enforcement proceedings in federal courts may be brought against them.
Two cases that are related were heard today by the U.S. Supreme Court. They questioned whether Texas’ new legal scheme should stand. Justice Brett Kavanaugh got to the core of the matter by asking Texas Solicitor General Judd Stone “the implications for other constitutional rights.”
Kavanaugh posed the question to the Texas official: “What if a State passed a law saying that anyone who sells AR-15s is liable for a one-million dollar penalty to any citizen?” What about a law that says “everyone who sells an AR-15 is liable for a million dollars to any citizen?” Kavanaugh asked the Texas official.
Stone admitted that Stone’s theory would protect the gun control law as well. Kavanaugh was told by Stone that his answers to questions about whether federal court review would be available did not depend on the right nature.
Kavanaugh stressed that the “Second Amendment rights,” free exercise and religion rights, and freedom of speech could all be used as models by “other states”, using Texas’s Texas abortion law. Kavanaugh said, “And also you stated that it doesn’t really matter what the penalty is, one million dollars per sale.” “A state passes a law [that says]Anyone who refuses to supply a good/service for use in same-sex marital relationships will be sued and fined a million dollars.
“Is it a yes?” Kavanaugh demanded the Texas official.
Stone responded, “Yes, my honor.”
Justice Sonia Sotomayor subsequently reacted to Kavanaugh’s questioning. “A dissatisfied state [District of Columbia v.] HellerStone said that any person who has a firearm is subject to civil litigation from any individual in the country. This isn’t just about abortion. It refers to any “right” that a state does not like.
“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.”
Both Kavanaugh & Sotomayor have the right idea. S.B. 8 will be allowed to continue if it is approved. Every state legislature will copy 8 if it is allowed to stand. Americans should be concerned about this outcome, regardless of their political affiliation.