Newsom’s paradox: California v. Texas

In Whole Woman’s Health v. Jackson, handed down last week, the Supreme Court by a 5-4 vote let stand for the time being a Texas statute barring doctors from performing abortions after the sixth week of pregnancy. The Texas measure, known as S.B. 8, took effect Sept. 1. But the procedural issue involved has taken on a new twist thanks to Gov. Gavin Newsom of California.

The Texas law is draconian. While there is an exception for medical emergency, there is none for cases of rape or incest. Many women do not even know they are pregnant within six weeks after conception. 

The law allows anyone in the United States to sue a Texas abortion provider for $10,000, or for that matter anyone “aiding and abetting” an abortion provider, effectively throttling all abortions in the state.

The Court permitted the abortion providers to continue their legal challenge to the law in the lower courts, but this was a Pyrrhic victory since the providers may only sue state medical licensing officials but not other state officials such as judges and clerks who make the procedure happen. So, the suits seeking a $10,000 bounty will continue.

The decision flies in the face of the nearly 50 year-old decision in Roe v. Wade as reaffirmed in the nearly 30 year-old decision in Planned Parenthood v. Casey, which established a fundamental right to abortion before fetal viability, which is normally 24 weeks.

The future of Roe and Casey are in grave doubt anyway as indicated by the expressed views of the same five conservative justices at the Dec. 1 oral argument of Dobbs v. Jackson Women’s Health Organization, the case challenging the Mississippi abortion law, which outlaws all abortions 15 weeks after conception.

The Texas statute is weird. In no other arena has a state enacted a law permitting strangers to a transaction to sue for a bounty. The measure was transparently designed to circumvent Roe and Casey by substituting an action by private bounty hunters for state action.

Chief Justice Roberts stood in outraged dissent. He readily perceived that Texas has employed “an array of stratagems designed to shield its unconstitutional law from judicial review.” He warned that the “clear purpose and actual effect” of the Texas law was “to nullify this Court’s rulings.” That, he said, “undermines the constitution and the fundamental role of the Supreme Court and the court system as a whole. If the legislatures of the several states may, at will, annul the judgments of the courts of the United States…the constitution itself becomes a solemn mockery….[I]t is the role of the Supreme Court in our constitutional system that is at stake.”

Pretty stern stuff. The Court should have enjoined the Texas statute on that ground alone, without regard to whether they ultimately intended to overrule Roe and Casey. But the conservatives had the votes.

Well, if they can work mischief in Austin and Washington, they can have fun in Sacramento. Enter Gavin Newsom. Professing “outrage” with the Texas decision, Newsom wants to play hardball with conservative attitudes towards gun rights the way Texas did with liberal attitudes towards abortion. What’s sauce for the goose is sauce for the gander. California banned assault weapons, but a conservative federal judge, Roger Benitez, has overturned the ban, likening an AR-15 to a Swiss Army knife. That ruling is on appeal.

Channeling the Texas statute, Newsom directed his staff to introduce a bill that would allow private citizens to seek injunctive relief “and statutory damages of at least $10,000  and attorneys fees against anyone who manufactures, distributes or sells an assault weapon or ghost gun kit or parts in the state of California.” Bounty hunters of the states unite!

“If the most efficient way to keep these devastating weapons off our streets is to add the threat of private lawsuits, we should do just that,” Newsom thundered.

If Newsom’s idea catches on and becomes law, the decision in the Texas case may come back to bite the five conservatives on the Court. They were quick to endorse the bizarre Texas statute, even though it was a clear violation of the Constitution. They may not have thought through that any state could end run a Supreme Court decision by setting up a similar statutory scheme. Or they may feel they will cross that bridge when they come to it. 

The five conservative justices may have a tough time enjoining the California law in light of their decision in the Texas case. Their reasoning may be that gun rights as expressed in the Second Amendment are fundamental, while a woman’s right to choose is not, although this is hardly a convincing distinction. No wonder Justice Sotomayor deplored the politically partisan “stench” emanating from the Supreme Court. As she observed in her dissent in the Texas case, “[t]he Court should have put an end to this madness…before S.B. 8 went into effect.” 

In blessing the Texas statute, conservative Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett may be hoist with their own petard.

James D. Zirin is a former federal prosecutor.