Kavanaugh raises tough questions about Texas abortion law
The Supreme Court heard oral arguments on the Texas abortion bill that essentially farms out enforcement to private citizens wherever they may reside.
While abortion foes and opponents will each have their takes on the law’s validity and effect, Justice Bret Kavanaugh raised a particularly important issue: could other states follow the Texas approach, but apply the private enforcement mechanism to other constitutional rights, like free speech of the Second Amendment?
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 the Texas official. “Would that kind of law be exempt from pre-enforcement review in federal court?”
Stone conceded that his theory would shield that gun control law too. “My answers on whether or not federal court review is available does not turn on the nature of the right,” he told Kavanaugh.
So “Second Amendment rights, free exercise of religion rights, free speech rights,” Kavanaugh emphasized, could all “be targeted by other states” using the Texas abortion law as a model. “And you also said that the amount of the penalty doesn’t matter, a million dollars per sale,” 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, a million dollars if sued by anyone in the state, that’s exempt from pre-enforcement review?”
“Is that a yes?” Kavanaugh pressed the Texas official.
“Yes, your honor,” Stone replied.
It looks like Texas may have gotten too cute by half with its anti-abortion law. If it stands, then look for, say, California to pass legislation using the Texas template, but instead of abortion, it would allow people to sue over carbon emissions. Or gun rights, school choice, taxes, and so on.