If you attend an abortion-rights rally, you are not likely to see anyone wearing a Second Amendment T-shirt. Visit a gun range, and trust me, none of the pickup trucks will have Planned Parenthood decals. But the Texas abortion ban has some very different Americans joining in a chorus of, “Don’t tread on me.”
The law prohibits any abortion after fetal cardiac activity is detected — as early as five weeks into a pregnancy. It makes no exceptions for women impregnated by rape or incest.
It is intended to make the great majority of abortions unobtainable.
The effort might sound like a fool’s errand. For nearly half a century, the Supreme Court has recognized a woman’s right to abortion at any time before her fetus is capable of surviving outside the womb, about 24 weeks. But the legislature came up with a plan to make an unconstitutional law exempt from constitutional challenge.
The key to it is that unlike most laws, this one may not be enforced by state or local officials. That task is delegated for any mope on the street, who may sue any provider violating the ban and collect a minimum of $10,000, plus attorneys’ fees. Lawsuits may also be filed against those who “aid and abet” an abortion — say, a friend who drives a woman to an appointment.
By removing itself from policing the law, the state figured, it would leave no one for providers to sue to block enforcement. So far, the strategy has worked. Clinics stopped offering most abortions, and courts have allowed the law to remain in force. For the moment, at least, a constitutionally guaranteed right is in the equivalent of a medically induced coma.
On Monday, the Supreme Court heard arguments over the law, supported by the usual friend-of-the-court briefs from groups that support or oppose abortion rights. But one of the most illuminating briefs came from a group that is resolutely noncommittal on reproductive issues.
The Firearms Policy Coalition is exclusively concerned with upholding the Second Amendment as it interprets it. The organization believes the rights of gun owners are just as much at risk from the Texas law as the rights of abortion providers and patients.
If this law is allowed to stand, letting Texas infringe the right to abortion, another state could adopt the same scheme for a different purpose: to deny the individual right to keep and bear arms.
The Supreme Court vindicated that freedom in the 2008 case of Heller v. the District of Columbia, striking down a ban on handguns in the nation’s capital. But the FPC brief warns that using the Texas abortion model, New York or California would be free “to declare that the ownership or sale of a handgun is illegal, notwithstanding Heller, and set up a bounty system with the same unbalanced procedures and penalties adopted by Texas in this case.”
Anyone buying or selling a pistol or an AR-15 could be forced to hand over $10,000 — for doing something that the Constitution is supposed to protect. Gun-shy states could also up the ante. They could offer judgments of $100,000 or $1 million, making lawsuits far more enticing and far more intimidating.
The Texas bounty system has not produced a torrent of lawsuits, because clinics have been deterred from violating the law. Enforcement hasn’t been necessary; the mere threat is enough. For several weeks, the reproductive freedom enjoyed by other American women has been a cruel fiction for those in Texas.
Second Amendment supporters should worry that the next target will be on their backs.
What gun shop would risk financial catastrophe to make a $500 sale? Gun owners would have to fear not only buying the forbidden firearms (if they could find a seller), but even letting others know of weapons they already own. A nosy neighbor or town gossip could reap a big windfall.
By deviously sabotaging one right, the Texas law creates a serious danger to any number of others. It also undermines the rule of law by rewarding people who trample on the freedom of their fellow citizens.
Representing the Justice Department, Solicitor General Elizabeth Prelogar told the Supreme Court Monday, “In the history of the United States, no state has done what Texas has done here.” If this gambit succeeds, it won’t stop in Texas, and it won’t stop with abortion.
