- The Washington Times
Sunday, December 12, 2021

California Gov. Gavin Newsom said recently he will try to pass legislation that will give citizens the right to sue anyone who sells an assault weapon or “ghost gun” in the state, seeking to harness last week’s Supreme Court ruling on a Texas abortion law for liberal priorities.

Gun rights groups had warned the Supreme Court to expect that kind of move, if the justices didn’t stop Texas’ law.


Mr. Newsom is the first, though not likely to be the last, to take the step.

He said he was “outraged” by Friday’s ruling.

“But if states can now shield their laws from review by the federal courts that compare assault weapons to Swiss army knives, then California will use that authority to protect people’s lives, where Texas used it to put women in harm’s way,” the Democratic governor said on Saturday.

The justices’ ruling didn’t go to the heart of abortion rights but rather to Texas’ novel approach to enforcing its ban on abortions after fetal heartbeat is detected. The state outsources enforcement to private citizens, giving them the ability to bring $10,000 civil lawsuits against someone who performs an abortion in violation of the statute.

Opponents went to federal court to sue state court clerks, state health officials and even a judge, saying they should be blocked from accepting, processing or ruling on the civil suits because they chill the right to abortion established by the 1973 Roe v. Wade decision.

Justice Neil M. Gorsuch, writing the court’s key opinion, said the federal courts don’t have the power to police those officials, aside from the state health authorities.

“While this Court’s precedents foreclose some of the petitioners’ claims for relief, others survive,” Justice Gorsuch wrote.

But if that’s so, the court also would lack the ability to police a similar situation in the case of a state that restricts gun rights beyond what the court’s current jurisprudence suggests, warned Justice Sonia Sotomayor.

“If this Court shuts the door to meaningful review of S.B. 8, abortion will be the first, but certainly not the last, constitutional right attacked in this way,” Justice Sotomayor wrote.

Within minutes of the ruling, Twitter was flooded with calls by liberal activists to make guns the next target.

In briefs filed with the Supreme Court, lawyers raised other rights that could be in danger from Texas-style outsourcing schemes, including same-sex marriage or freedom of the press.

Justice Gorsuch, in his opinion, worried about the opposite problem: Federal judges given the OK to step in and block lawsuits in state courts. “Would clerks have to assemble a blacklist of banned claims subject to immediate dismissal?” the justice wondered.

The court previously had allowed the Texas law to remain in effect, and Friday’s case was a more narrow question about whom opponents can sue as they try to stop enforcement.

Still, activists on both sides of the aisle cast the decision as a major abortion-rights test.

“Today, the Supreme Court largely left in place a Texas law that protects life and sends a message that every life is valuable. This is victory for Texas and the pro-life movement,” said Sen. Ted Cruz, Texas Republican.

The American Civil Liberties Union, which helped argue the case for the law’s opponents, called the ruling a “betrayal” and echoed Justice Sotomayor’s prediction that other rights will soon be targeted by similar schemes.

Texas’ approach avoids the easy challenges that have doomed past state laws, in which courts have issued injunctions against the state itself.

Instead, the Texas law’s opponents were left to argue that the courts shouldn’t allow the cases to be filed and that state medical officials shouldn’t be allowed to take disciplinary action.

The state officials are still viable targets for a federal lawsuit, but the court system is not, Justice Gorsuch said, citing longstanding immunity provisions.

Challenges in state courts are still governed by the state’s own law.

And challenges later in the process, once the law is enforced by private lawsuits, are also likely to be brought.

The Texas case comes as the high court is delving more deeply into abortion than it has in decades. Earlier this month the justices heard oral arguments on a Mississippi law that seeks to overturn Roe.

During that argument, the majority of justices seemed poised to erode the current abortion dividing line of viability — about 24 weeks of pregnancy — when the right to abortion is considered sacrosanct and states are not allowed to prohibit it.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.


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