WASHINGTON, D.C . — As the U.S. Supreme Court took up two challenges this week to Texas’ abortion law, abortion-rights advocates found an unlikely ally in their legal fight to stop the near-total ban on abortions: gun-rights advocacy groups.
On Monday, a group focused on defending gun rights laws filed a brief to the court in support of the abortion-rights advocates’ case, putting two groups on the opposite side of the political spectrum in one united front against the Texas law.
The gun-rights group’s amicus brief, an information-only brief offered by a party that is not involved in the case, argued that the Texas abortion law’s novel mechanism of enforcing the law made it extremely difficult to challenge a state law in federal court. That, the group feared, could become a blueprint in the future as a challenge to gun ownership.
“If the court upholds this tactic as a valid and legitimate tactic, then yes, I think it is only a matter of time before other states with other rights they don't like, apply a similar tactic,” said Erik Jaffe, counsel for the Firearms Policy Coalition, a California-based gun-rights group
Jaffe said the group isn’t taking a stand on the constitutional right to an abortion. Instead, what the group takes issue with is the mechanism with which the Texas law evades judicial review.
The Texas abortion law, which went into effect on Sept. 1, bans abortions after a fetal heartbeat can be detected, which is typically around six weeks. What makes the law unique is that it deputizes ordinary citizens and not the state to enforce an effective ban on abortions by allowing them to sue anyone who aids or abets a woman who receives the procedure. If a lawsuit is successful, the plaintiffs can collect cash judgments of $10,000, plus their legal fees
Jaffee warned that in theory, other states could pass laws addressing gun ownership in which they impose penalties much harsher than a $10,000 bounty.
Lawmakers could replicate the Texas law’s mechanisms to be applied to not only to gun rights, Jaffe warned.
“You literally could do that to any right. It takes the Supreme Court, it takes the Constitution off the table,” he said.
"A lawmaker could propose a bill that would make 'the penalties so severe, that no one will dare violate' the law, even if the law clearly was contrary to Supreme Court precedent," Jaffe said.
During legal arguments this week, one of the Supreme Court’s conservative justices took note of the points made by the gun-rights advocacy groups and asked why another state couldn’t use the same tactic to shield a gun control law from legal review.
“Everyone who sells an AR-15 is liable for one million to any citizen? Would that kind of law be exempt from pre-enforcement review in federal court?” asked Justice Brett Kavanaugh, who was appointed by former President Donald Trump.
When pressed, Texas Solicitor General Judd Stone said yes and suggested Congress would have to step in.
“Isn't the point of a right that you don't have to ask Congress? Isn't the point of a right that it doesn't really matter what Congress thinks or what the majority of the American people think, as to that, right?” asked Justice Elena Kagan, who was nominated to the court by former President Barack Obama in 2010.
But when Texas Attorney General Ken Paxton was asked about other states potentially using this mechanism, Paxton said his concern is focused on just this case.
“We don't tinker around with the court like this,” said Carol Sanger, the Barbara Black Professor of Law at Columbia University. “It's not a game, where you can develop a special move that will block your opponent, it's supposed to be principled decision making, using the Constitution as the guide, and so not, not something more like a party trick.”
The Supreme Court is deciding now whether abortion providers and the U.S. Justice Department can proceed with a federal lawsuit against the law.
The court in December will take up a Mississippi case that involves a broader challenge to Roe versus Wade, the landmark ruling establishing a constitutional right to an abortion.
Digital Journalist Sabra Ayres contributed to this report from Dallas.