DANIEL VAUGHAN: Texas and California’s fight underlines Supreme Court’s need to get out of the abortion debate

The American legal system has been a front in the culture wars for a very long time. The latest tool employed is a highly technical civil procedure move, but the essence of it is elementary: preventing the Supreme Court or a lower appeals court from striking down a law before it even has a chance to go into effect.

It started with Texas Republicans passing a law — that Democrats haven’t been able to stop — limiting abortion. California is answering that challenge by targeting gun owners.

The specific use of the Texas legislative model against firearms was eminently foreseeable. The Firearms Policy Coalition warned of such in briefs to the Supreme Court and in general.

After California’s announcement, the Firearm Policy Coalition said curtly, “Our brief in Jackson v. Whole Woman’s Health predicted that tyrants like Gavin Newsom would use the Texas model against fundamental human rights including the freedom of speech and the right to keep and bear arms.”

Simply put, the Texas legislative model shifts the burden of enforcement from state actors to private citizens. With a typical law, you’d see it being enforced by police officers or other state agents. A law against speeding is enforced by police; a workplace safety law may be executed by OSHA or a state-level workplace safety agency. 

The Texas model, on the other hand, makes private citizens responsible for reporting violations of the state’s anti-abortion law.

This enforcement mechanism is not out of left field. It is common for environmental laws, for instance, to put the onus on private citizens to report problems. The Environmental Protection Agency, as an example, has long relied on complaints from private citizens. Numerous whistleblower laws reward private citizens for reporting the harmful acts of private corporations.

The difference here is that states like Texas and California are flexing out this kind of law to target things that are either explicit rights, like owning firearms is thanks to the Second Amendment, or alleged rights, as is the case with Texas and its law on abortion.

This kind of enforcement mechanism is different because state power isn’t enforcing it. Without that, you don’t have immediate harm to anyone. Lawsuits are designed around injury being provable, or at least provable in the future. Removing that key aspect to litigation makes it harder for litigants to prevent these kinds of laws from going into effect.

Eventually, someone will try to enforce the law. But until then, you can’t sue to prevent the law from ever going to effect, as much of these lawsuits do.

Planned Parenthood and liberal groups have attempted legal challenges regardless of these difficulties, as they should. While it’s unclear how the Supreme Court will eventually square the circle of the obstacles presented to them with these kinds of legislative models in Texas and California, there’s little doubt that they will do just that.

The second round of lawsuits where liberal groups tried to get something to stick before the Supreme Court appears to have opened a crack in preventing enforcement, as Ilya Somin notes:

If the plaintiffs prevail in their lawsuit against the licensing officials, they will, most likely, be able to get an injunction that applies only against those defendants. But the precedent set can then be used to defend against lawsuits by private SB 8 litigants, and thus should eliminate all or most of the “chilling effect” created by SB 8.

So even with all the chaos of this new strategy being employed in this manner, and California jumping into the fray, there are signs that the Supreme Court will eventually pump the brakes on these attempts and prevent state governments from making their laws untouchable by the Constitution and the courts.

One unique aspect to California stepping into the fray and using this legislative structure is that Governor Gavin Newsom (D) appeared to show an explicit political animus in his calculations. “If states can now shield their laws from review by the federal courts that compare assault weapons to Swiss Army knives,” he said, “then California will use that authority to protect people’s lives, where Texas used it to put women in harm’s way.”

That kind of statement shows less care for the “threat” he alleges in shifting the law than it does for punishing his political opponents. That could negatively impact California’s case.

There’s also the aspect that California targets a listed constitutional right, while Texas is going after a questionable “right” with abortion. Either way, California and Newsom have firmly planted themselves as the left-wing alternative to the Texas law.

All of this brings us back to the most important part here: States are seeking to avoid the courts because the courts have stepped into the political process and usurped the legislative function. On abortion, the courts need to allow these states to settle the matter in dueling laws and debates. Firearms are different, because that’s a listed right. If Democrats want to talk abortion, they need to take the step of opening the floor for debate.

If Democrats want abortion to be on the same level, they need to take that step.

In the meantime, the Supreme Court needs to get itself out of the abortion issue by striking down Roe and Casey. That will go a long way toward moving the courts outside the cultural wars. And long term, that’s what will make the legitimacy of the Supreme Court stand for decades — and centuries — to come.