By James Barragán and Cassandra Pollock, The Texas Tribune
““Every constitutional right is now at risk”: Legal experts warn Supreme Court action on Texas abortion law could lead to copycats” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
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The U.S. Supreme Court’s decision Friday allowing Texas’ abortion law to remain intact creates a roadmap for states that may seek to limit other constitutionally protected rights, legal experts warn.
Texas’ law bars abortions before many know they’re pregnant — at roughly six weeks gestation — and empowers private citizens rather than state officials to enforce it by suing individuals and abortion providers. During oral arguments in November, most of the court’s nine justices expressed concerns specifically over the state’s unique enforcement mechanism and how it may be used to curb other constitutional rights, including gay marriage, religious freedom, freedom of speech and gun rights.
The Texas law — which states such as Florida and Ohio have recently tried to mirror with their own proposals — also promises private citizens who sue $10,000 if they win their lawsuit, which critics have denounced as a “bounty” placed on people who seek abortions or help another person get one.
Justice Sonia Sotomayor, who agreed to let the suit continue but criticized the court’s decision to leave the Texas law in effect, said the majority was straying from the court’s precedent to step in when state laws chill the exercise of constitutional rights — and allowing other states to follow suit.
“The Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree,” she wrote.
Sotomayor added that “new permutations of S.B. 8 are coming” and states had already introduced legislation to target rights their legislators disagree with. Texas’ law was passed as Senate Bill 8 in the Legislature this year.
“What are federal courts to do if, for example, a State effectively prohibits worship by a disfavored religious minority through crushing ‘private’ litigation burdens amplified by skewed court procedures, but does a better job than Texas of disclaiming all enforcement by state officials?” she said. “Perhaps nothing at all, says this Court.”
In October, a gun rights group, the California-based Firearms Policy Coalition, filed a legal brief supporting the challenge to the law arguing that Texas’ enforcement mechanism, which shields the state law from judicial review before a suit is filed, could allow other states to use the same tactic to limit gun access.
“We’re disappointed,” Erik S. Jaffe, a lawyer for the Firearms Policy Coalition, said Friday after the decision. He warned in his brief that other states like New York were already experimenting with ways to limit gun access.
“Every bad idea has copycats,” he said. “I have no doubt that legislatures hostile to firearms and the Second Amendment will use either some or all of the tactics that Texas has used.”
Jaffe added that the tactic could expand to other constitutionally protected rights that politicians oppose.
“If folks could mess with issues they hate, why wouldn’t they go for more? Why stop with Roe?” he said, alluding to the landmark 1973 abortion case at the Supreme Court that established the constitutional right to abortion.
University of Texas law professor Steve Vladeck agreed that the court’s decision would resonate beyond access to abortion and criticized the court for allowing the state to sidestep judicial review of the law.
“Instead of disincentivizing states from playing such procedural games with our constitutional rights going forward, [the U.S. Supreme Court] has provided a blueprint for doing so,” he said on Twitter.
Friday’s decision means the legal challenge will continue in a lower federal court, where abortion providers will continue trying to block the Texas law. And while that was initially welcome news for abortion providers and activists, they quickly pivoted to sounding the alarm on how the decision can be used by other states that wish to follow Texas’ lead and pass laws related to other constitutional rights that rely on private citizen lawsuits as the enforcement mechanism.
“While SB8 is about abortion, this private enforcement scheme implicates every other constitutional right,” said Marc Hearron, senior counsel for the Center for Reproductive Rights, on a call Friday afternoon with reporters. “If a state can prohibit the exercise of any constitutional right that’s disfavored in that state and get around federal court review by allowing private citizens to sue someone for exercising that constitutional right, then it’s hard to say where this scheme ends. Today’s decision is a marker that says every constitutional right is now at risk.”
Some supporters of the Texas law, such as state Rep. Briscoe Cain, a Deer Park Republican who is also an attorney, called Friday’s decision “a total victory” for abortion opponents — and “a total vindication of the law’s enforcement mechanism [that] sets up a roadmap for other states to do the same.”
Still, even some groups aligned with the anti-abortion movement say they have concerns about the enforcement mechanism in the state’s law. Joe Pojman, executive director for Texas Alliance for Life, said the group — which is “very pleased with the effect of the law” — does have concerns that its enforcement mechanism could be used in future state laws that could involve the First Amendment.
“Because some state might try to pass a law that … might create a right for private citizens to sue anyone who talks to a woman entering an abortion facility,” he said. “That’s a frightening prospect to us. I don’t know of any state that’s considering it. But it seems like that would be possible if this type of citizen enforcement is allowed to continue.”
Karen Brooks Harper and Eleanor Klibanoff contributed to this report.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2021/12/10/scotus-texas-abortion-law-constitutional-rights/.
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