Abortion and gun rights appear to be interwoven at the Supreme Court in a bizarre twist of fate. The Supreme Court of the United States heard oral arguments this week in two issues involving SB8 (the Texas bounty hunter legislation) and a gun rights case from New York. They also declined to hear two important cases involving insurance coverage for abortion and transgender healthcare. Surprisingly, the court’s decisions aren’t entirely awful, and part of the good news on abortion may be due to a brief from the Firearms Policy Coalition.
The Texas bounty hunter abortion bill (SB8), which leaves enforcement of a six-week abortion restriction in the hands of private persons suing people who aid in abortions, was heard this week in two cases. In a shadow docket ruling on September 1, the court allowed this statute to take effect.
The two cases addressed by the court this week aren’t directly about the legislation’s constitutionality; rather, they’re about whether the statute can avoid judicial scrutiny and whether anyone can sue in federal court. The original matter before the court on September 1 was Whole Women’s Health v. Jackson, in which the court declined injunctive relief. It is now before the court again, this time asking the justices to decide the narrow matter of who can sue. Similarly, in the United States v. Texas, the second SB8 case, the court was required to consider who is allowed to sue, but this time in a lawsuit brought by the Justice Department.
SB8 was enacted to bypass judicial review in federal court by putting law enforcement in the hands of private citizens rather than government officials. It also breaks long-established standards of civil procedure by permitting private persons to file lawsuits against abortion providers even though they have suffered no direct harm and thus lack standing to file the lawsuit. From a legal basis, the law makes no sense and is clearly a transparent attempt to pass an unlawful statute while avoiding federal courts declaring it unconstitutional.
Despite originally permitting SB8 to take effect, it appears that after oral arguments, a few conservative justices ultimately realized that the bill is absurd and could have far-reaching consequences beyond abortion law. The four justices who issued dissents in the decision to allow SB8 to take effect (Kagan, Sotomayor, Breyer, and Roberts) seemed to have the same position. Alito, Gorsuch, and Thomas, on the other hand, appear to be fine with a silly evasive plan.
The justices were concerned that Texas was attempting to exploit a loophole in judicial review, and that the financial threat would deter abortion providers from performing abortions and then challenging the suits brought against them in federal court, but I believe the threat to gun rights was the most persuasive, especially to Kavanaugh.
Kavanaugh noted the Firearms Policy Coalition’s “friend of the court brief,” expressing worry that other states could utilize similar techniques to bypass the judicial review and undermine other constitutional rights. Normally, I don’t think gun rights advocates worry much about abortion, but SB8 was dubbed Texas’s cavalier and contemptuous mechanism for avoiding the federal review of a scheme intentionally designed to chill the exercise of constitutional rights as determined by this court’s precedents.”
While I appreciate the justices’ recognition of SB8’s far-reaching consequences for other concerns, the fact that gun rights are likely to be the most convincing is already hurting us in another case.
The Supreme Court heard oral arguments in N.Y. State Rifle & Pistol v. Bruen two days after hearing arguments in SB8. This case is challenging a 108-year-old law that requires persons to prove “justification” for carrying a concealed weapon license. In New York, the courts have interpreted this to mean that persons must have a compelling reason to defend themselves and their property.
The challengers, in this case, a gun rights advocacy group, claimed that the wording of the Second Amendment preserves an individual right to carry a pistol for self-defense based on the history of the United States.
The challengers’ lawyer, Paul Clement, argued that the New York statute “converts a fundamental constitutional right to a privilege.” It’s a strange argument, given that the founders backed sweeping gun control measures and that an individual right to carry a firearm wasn’t recognized federally until DC v. Heller in 2008. Even in Heller, Scalia highlighted that long-standing gun laws, such as concealed carry bans, should be upheld as constitutional (something acknowledged by Kagan and Sotomayor). Similarly, New York Attorney General Barbara Underwood stated that public safety limitations on carrying firearms in public were customary and well-accepted.
A number of conservative judges objected to the fact that New York grants more gun licenses in less populous places and is more limited in high-density urban areas in an especially strange line of questioning. This sounds like a no-brainer to me as a long-time New York City resident, but Kavanaugh, Thomas, Alito, and Roberts were not convinced.
Roberts wonders how many muggings occur in the woods, but fails to consider that a bear does not have the same self-defense alternatives as a crowded street with people around. As someone who uses the train on a regular basis, Alito appears to believe it is reasonable for someone to use a gun within a crowded subway vehicle for self-defense, which is horrifying. Isn’t he aware that bullets can ricochet in narrow metal spaces? Though Alito also believes that the subways are crammed with illegal firearms, so who knows. Fortunately, Breyer was helpful, citing an amicus brief that showed a link between violent crime and more liberal concealed-carry laws.
On the surface, both issues appear to be related because they both involve state legislation that limits constitutional rights, but they are vastly different. A concealed carry restriction is consistent with long-standing Second Amendment interpretations and serves a valid state interest, but a six-week abortion ban defies all previous abortion precedent. SB8 is also a weird legal strategy to weaken judicial review and upend civil procedure, despite the fact that New York’s gun law follows well-established legal principles.
Unfortunately, the grounds for allowing challenges to SB8 for Kavanaugh, including the potential ramifications for gun rights, will almost certainly lead a number of justices to overturn New York’s gun law.
What’s more disturbing is that any restitution we may receive as a result of the Texas bounty hunter statute will most likely be temporary. With the Supreme Court agreeing to hear Dobbs v. Jackson Women’s Health (a challenge to Mississippi’s 15-week abortion ban) on December 1, we still face a real challenge to abortion protections. Even still, SB8 must be repealed because we should all be scared of laws that encourage private enforcement and reward bringing your neighbors into court.
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