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Maybe Texas’s abortion law will open the door for progressive causes

If the state is allowed to sidestep Roe v. Wade, just think what blue states could do on gun control, campaign finance, and other constitutionally tricky matters.

Lawmakers in the Texas State Capitol may have written a playbook that will be followed by conservatives and progressives alike.Tamir Kalifa/Photographer: Tamir Kalifa/Getty

Texas’s highly restrictive abortion law, SB8, was designed to sidestep all the reasons the Supreme Court might be forced to invalidate it under Roe v. Wade. Consider, for example, its unusual enforcement mechanism: The law provides that anyone in the country, except state and local officials in Texas, can sue anyone who performs or “aids and abets” an abortion in Texas for a $10,000 reward.

The explanation for this unusual scheme is important. The Supreme Court’s 1973 decision in Roe v. Wade found a constitutional right to abortion in the 14th Amendment of the Constitution, which protects everyone from deprivations of life, liberty, or property without due process. Subsequent interpretations of the amendment created what’s known as the “state action doctrine.” In short, that doctrine says that all the 14th Amendment protects against is state action that would otherwise violate due process. Thus, by writing the Texas state government out of the enforcement process as much as possible, the Texas Legislature is hoping that SB8 will survive court challenges, unlike so many restrictive abortion laws of the past. If the Texas law is characterized simply as private parties regulating other private parties, then there is no state action; if Roe v. Wade’s right to an abortion only protects against state action, then the Texas law does not violate Roe.

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This at least partly explains how the Supreme Court avoided invalidating the Texas statute the first time it came before the court. When pro-choice advocates brought their lawsuit against Texas officials to stop the law from going into effect, the Supreme Court said no, citing, among other procedural questions, whether Texas officials were even the right defendants in the case.

It goes without saying that a second Supreme Court opinion allowing SB8 to stand would be catastrophic for reproductive freedom in Texas and any other states that adopt similar legislation. What’s being overlooked, however, is the seismic impact that such an opinion would have on constitutional rights more generally. After all, the 14th Amendment currently protects not only abortion but many other individual constitutional rights, like same-sex marriage, gun rights, and religious freedom, from state interference. (While most people associate gun rights and religious freedom with the Second and First Amendments, respectively, those amendments bar the federal government from infringing on one’s right to bear arms or exercise religious beliefs. It is the 14th Amendment that incorporates those same bars against state governments.) If the Supreme Court chooses to uphold SB8, it will leave not only the abortion right up to state legislatures but most individual rights we have come to know.

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There may be a silver lining for those who champion progressive causes, as conservatives aren’t the only ones whose policy efforts have been stymied by the courts. Remove the judiciary from the picture and suddenly left-leaning state legislatures might be able to pass gun regulation, campaign finance restrictions, antidiscrimination laws, and more, just by leaving the enforcement to private actors.

Imagine if SB8 were about guns instead of abortions. The Texas law provides that “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child . . . or failed to perform a test to detect a fetal heartbeat.” Replace “fetal heartbeat” with “background check” and “perform or induce an abortion” with “sell a firearm” and perhaps we have a law the Supreme Court will leave alone, at least for a while. Texas Right to Life has stated that SB8 is not “against the women” but against “the abortion industry itself.” If that’s true, this would be a law not against gun owners but against the gun industry. And that’s constitutional, . . . right?

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For another example, consider state efforts to level the field in campaign spending. A 1998 scheme implemented in Arizona worked as follows: If one candidate spent over a certain amount on their own campaign, their opponent would receive public funding in equal sum. The Supreme Court invalidated that law in 2011, saying it unduly impeded free speech. But imagine, instead, if Arizona created a right to sue one’s opponent to recover the difference in campaign spending. Again, following the trail blazed by SB8, voila! — suddenly such an effort is apparently constitutional — or at least immune from judicial review.

Although the Supreme Court has in the past viewed state court enforcement as state action, the current court’s description of this question as “novel” suggests a majority of today’s justices do not consider such cases to be binding precedent and may be willing to revise this doctrine yet again during their full review. A world in which the Supreme Court refuses to invalidate constitutionally suspect statutes so long as their enforcement is left to bounty hunters is a dark world indeed. But if this is our new regime, then liberal state legislatures should get to drafting.

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Nicole Allicock is a third-year student at Yale Law School. Brendan Schneiderman is a recent graduate of Harvard Law School.