Implications of US Supreme Court ruling on Texas abortion law

Regardless of a person’s position of the recent US Supreme Court ruling of the new Texas anti-abortion law, there are serious implications for it’s effect of other laws. This is made apparent by California Governor Newsome’s announcement of a plan to craft Gun Control legislation following the same legal tactics as the Texas law. I privately asked @Puck_Mendelssohn his take on the legal situation, and he answered at great length with a legal expert’s assessment of the matter. With Puck’s permission I am posting his response for all to see. I think you will find it interesting, and perhaps worrisome.

My original questions was, “I’m curious about your take on California Governor Newsom’s suggestion to craft gun control legislation along the lines of the Texas anti-abortion law. I’ve read this is the sort of thing legal scholars are concerned about.”, to which Puck replied …


It will be quite something if and when the SCOTUS overturns the California gun law and, in so doing, defies a precedent the exact same court had set only months previously. That would certainly leave more than a bit of the “stench” that Justice Sotomayor was concerned about.


My thanks to @Puck_Mendelssohn for his analysis.

My guess is that Gov. Newsom is attempting to put pressure on the courts, to stop running away from the problems that the Texas law creates.


One might surmise that Newsome is just presenting an argument to the court in the guise of a (so far hypothetical) bill. Rule the wrong way and look what’s going to happen.


Well, but the recent ruling of the Supreme Court doesn’t really uphold the Texas law. It allows the challenge to proceed. I’m about to do something I should probably never do, which is akin to citing the abstract rather than the paper, but for conciseness the following statement from the syllabus of the Court’s ruling can’t be beat. I will add, however, that the syllabus is not itself authoritative, and so should be taken as an educated summary, not as the words of the Court itself:

The Court holds that the petitioners may bring a pre-enforcement challenge in federal court as one means to test S. B. 8’s compliance with the Federal Constitution. Other pre-enforcement challenges are possible too; one such case is ongoing in state court in which the plaintiffs have raised both federal and state constitutional claims against S. B. 8. Any individual sued under S. B. 8 may raise state and federal constitutional arguments in his or her defense without limitation. Whatever a state statute may or may not say about a defense, applicable federal constitutional defenses always stand available when properly asserted. See U. S. Const., Art. VI. Many federal constitutional rights are as a practical matter asserted typically as defenses to state-law claims, not in federal pre-enforcement cases like this one. See, e.g., Snyder v. Phelps, 562 U. S. 443 (First Amendment used as a defense to a state tort suit). Other viable avenues to contest the law’s compliance with the Federal Constitution also may be possible and the Court does not prejudge the possibility.

So the Court has not upheld the Texas law, nor has it struck it down. It has allowed it to live to be litigated another day, but further proceedings in the lower court may strike it down, and further proceedings in other cases, e.g., a person sued under the statute raising a constitutional defense, may likewise strike it down. And, of course, it may be stricken only in part, depending upon the outcome of various other issues.

These procedural points tend to get lost in news reporting. One problem is simply that people are always more interested in the outcome (what awaits us on Roe v. Wade?) than in the procedural details. But it’s fair to say that the Court hasn’t said the Texas law is A-OK, and even if the Court had entirely rejected the method of challenge to the law with which it was faced, that wouldn’t have foreclosed other methods of challenge. I think that if this notion of granting a right to sue to the public in general is not just a one-off, it is going to present some genuinely weird and difficult questions regarding (1) whether such schemes are constitutionally limited in some way, and (2) what is the appropriate procedural pathway for challenging such schemes. And it may not be one-size-fits-all because it may depend, in some cases, upon whether the burden is deemed excessive in relation to the rights which are put in question, and that sort of thing.

I’m not a fan of the current Court, and I think awful things are about to happen on multiple civil rights questions. But even as we deplore some of what’s going on, it’s important that we do get the process right and understand when something is a substantive ruling about rights themselves, and when it is a procedural ruling that relates to how rights may be vindicated. Now, procedure isn’t insignificant: if the old maxim holds that “Ubi jus, ibi remedium,” (where there is a right, there is a remedy) then the jus isn’t good for much if the remedium is non-existent. But the inadequacy of one remedy is not the end of the world if those other remedies which exist ARE adequate.


Looks like Texas is following its role models in Iran. There they are restricting contraceptives, vasectomies and making condoms illegal which I have no doubt are ultimately the same goals as Texas has and of the majority of this less than supreme court. Reminds me of A Flock of Seagulls: And Iran, Iran so far away… But not far enough.

How long before some right-wing state government like Texas formulates a similar bill allowing citizens to bring suit against educational institutions for teaching evolution the wrong way (or at all)?

Fortunately, while both Texas and Iran have problematic governments, they also each have a large number of relatively modern and cultured people in their populations. I’m optimistic that Iran, at least, will work through it.


Yeah, that’s not a comforting thought. And while I don’t assume that our current Supreme Court would go full-on in favor of creationism, I do think there is a very real peril, given their church-and-state views, of something in that direction. Epperson v. Arkansas would, if followed, seem to prevent a state penalizing the teaching of evolution, but this is a dangerous area because regulating the curriculum IS a legitimate area of legislative authority at some level.


Looking at some recent entries on EN, it is probably a good bet that the legal beagles at the DI are already crafting legislation that would encourage harassment of teachers by parents (and students).


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