After the Uvalde, Texas, school shooting, it’s clear that even a massacre of children and their teachers will not be enough to shake the GOP from the grips of the gun lobby.
And the situation may get worse. The Supreme Court is poised to strike down a gun licensing law in New York that requires applicants to show a “proper cause” to obtain a permit to carry a gun. We have a similar law here in Massachusetts, as do several other states. The justices heard argument in November, and their hostility to the law was evident in their questions. If they strike it down, our ability to assert more control over guns will be eroded, making a tragedy like Sandy Hook or Uvalde even more possible here.
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But we do have an option that Massachusetts lawmakers could put in place. And, ironically, it’s from Texas.
Last summer, Texas legislators passed the Texas Heartbeat Act, also known as SB8. It prohibited any Texas physician from performing an abortion after a fetal heartbeat is detected, which occurs at roughly six weeks of pregnancy. The law was unquestionably unconstitutional under Roe v. Wade and other rulings, which allow abortion until viability (roughly 24 weeks). Normally, such a law would be struck down almost immediately.
But the Texas law contains a procedural innovation: It is not enforced by state officials but by the general public. It authorizes suit by “any person” and awards them at least $10,000 in damages payable by anyone who provides an abortion or “aids or abets” it. (The latter provision could even include Uber drivers who take a woman to a clinic.) And to add insult to injury, the abortion provider (or Uber driver) has to pay the other side’s legal fees if they lose, but pay their own costs even if they win.
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Texas argued that federal courts were powerless to stop the law, since there was no state official to enjoin and the general public cannot be barred from seeking the bounties. The Supreme Court agreed — without state enforcement, federal courts were powerless to step in. The loophole was cynical yet ingenious.
And it was effective. Fearful of massive liabilities and harassing litigation, every abortion clinic in Texas shut down.
Massachusetts should use this framework to fight guns.
There is nothing about the private bounty framework that limits its usefulness to abortion. The Texas state solicitor general Judd Stone admitted to the Supreme Court that other rights can be insulated from federal court review in the same way. What’s more, he admitted that federal courts would be shut out even if the bounty was a million dollars or more. In fact, a gun rights group filed a brief in favor of the abortion clinics, saying that the Texas law should be struck down because it provides a framework for states wishing to burden gun rights.
Massachusetts should take them up on their invitation.
How about a state prohibition on the manufacture, distribution, sale, or possession of military-style weapons or ammunition, enforced through private bounties of a million dollars? How about the imposition of multimillion dollar damages — awarded to “any person” who sues — on gun sellers when those guns are used in shootings or other crimes? As long as no state official is involved in enforcement, the Supreme Court has said that federal courts cannot step in.
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California is ahead of us in using the Texas Heartbeat Act ruling to fight guns. Governor Gavin Newsom proposed a bill mimicking the private bounty framework, and the California legislature advanced the bill in the hours after the Uvalde shooting. Massachusetts should catch up.
If Texas can manipulate the judicial process to suppress abortion rights, Massachusetts should do it to suppress gun violence. We can call it the Massachusetts Heartbeat Act.
Kent Greenfield is professor of law and Dean’s Distinguished Scholar at Boston College.
