A bizarre twist of fate left abortion rights and the 2nd Amendment entangled at the Supreme Court

​U.S. Supreme Court, 2021
U.S. Supreme Court, 2021

In a bizarre twist of fate, it seems abortion and gun rights are intertwined at the Supreme Court. This past week, SCOTUS has heard oral arguments in two cases concerning SB8 (the Texas bounty hunter law) and a gun rights case from New York state. They also declined to hear two cases with significance for mandating abortion for insurance coverage and transgender healthcare. Shockingly, it's not all bad news out of the court but some of the good news on abortion could be owed to a brief from the Firearms Policy Coalition (yes, seriously).

The two abortion cases heard this past week concern the Texas bounty hunter abortion law (SB8) that places enforcement of a six-week abortion ban in the hands of private individuals suing people who aid in abortions. The court previously allowed this law to take effect (even though it's a blatantly unconstitutional attempt to avoid judicial review) in a shadow docket ruling on September 1.

The two cases the court heard this week aren't directly considering the constitutionality of the law, but instead considering if the law can actually avoid judicial review and if people can sue in federal court. Whole Women's Health v. Jackson was the original case before the court on September 1 when it declined injunctive relief. It is now back in front of the court, this time asking justices to consider the narrow question of who is allowed to sue. Similarly, the second SB8 case, United States v. Texas, also asked the court to consider who is allowed to sue but this time in a case brought by the Justice Department.

SB8 was designed to avoid judicial review in federal court by placing enforcement of the law in the hands of private individuals, not state actors. It also flouts long-accepted rules of civil procedure by allowing said private individuals to bring suits against abortion providers without experiencing any direct harm, and therefore without standing to bring the suit. The law really makes no sense from a legal standpoint and clearly is just a blatant attempt to pass an unconstitutional law while attempting to avoid federal courts calling it unconstitutional (which would usually require the involvement of state actors).

Despite their allowing SB8 to go into effect initially, it seems during oral arguments a few conservative justices finally woke up to the fact that this law is ridiculous and could have far-reaching implications beyond abortion law. The four justices (Kagan, Sotomayor, Breyer and Roberts) who wrote dissents in the decision to allow SB8 to go into effect seemed to remain consistent with that position. Alternatively, Alito, Gorsuch and Thomas seem happy to allow a ridiculous evasive scheme if it means outlawing abortion (although even Thomas pointed out that SB8 is an extreme law by allowing people who haven't been injured to bring suit). The original dissenters only need to pick up one vote to allow abortion providers to sue, and somehow oral arguments showed both Kavanaugh and Barrett being critical of SB8.

The justices were concerned that Texas was trying to exploit a loophole in judicial review, and that the financial threat would prevent abortion providers from performing abortions and then challenging the suits brought against them in federal court, but I think the threat to gun rights was probably most persuasive, particularly to Kavanaugh.

Kavanaugh cited a "friend of the court brief" from the Firearms Policy Coalition and expressed concern that other states could use this scheme to avoid judicial review to limit other constitutional rights. Normally, I don't think gun rights advocacy groups care too much about abortion, but they had harsh words for SB8, calling it "Texas's cavalier and contemptuous mechanism for avoiding federal review of a scheme intentionally designed to chill the exercise of constitutional rights as determined by this court's precedents."

While I'm happy the justices are recognizing the far-reaching implications for SB8 concerning other issues, the fact that gun rights are likely the most persuasive is already hurting us in another case.

Two days after SB8 oral arguments, the Supreme Court heard oral arguments in N.Y. State Rifle & Pistol v. Bruen. This case is challenging a 108-year-old law requiring that people show "proper cause" to get a license to carry a concealed handgun. Courts in New York have interpreted this to require people have a need beyond simply wanting to defend themselves and their property.

The challengers in this case, a gun rights advocacy group, claimed that the history of the United States shows that the text of the Second Amendment protects an individual right to carry a gun for self-defense.

Paul Clement, arguing for the challengers, claimed that the New York law serves to "convert a fundamental constitutional right to a privilege." Kind of a bizarre argument since the founders favored broad gun control measures and an individual right to carry a handgun wasn't recognized federally until 2008 in DC v. Heller. Even in Heller, Scalia emphasized that long-standing gun regulations like concealed carry bans should still be considered constitutional (something acknowledged by Kagan and Sotomayor). Similarly, Barbara Underwood, the solicitor general of New York, argued that public safety restrictions on carrying guns in public were common and well-accepted.

In a particularly bizarre line of questioning a number of the conservative justices objected to the fact that New York more readily grants gun licenses in less populated areas and is more restrictive in high-density urban areas. As a longtime New York City resident this seems like a no-brainer to me but Kavanaugh, Thomas, Alito and Roberts weren't so convinced (have any of them taken the subway?).

Roberts wonders how many muggings happen in the forest but doesn't consider that you don't have the self-defense options with a bear that you do on a crowded street with people everywhere. Alito actually seems to think it's reasonable for someone to use a gun inside a crowded subway car for self defense, which is terrifying as someone who actually takes the subway regularly. He knows bullets can ricochet in small metal spaces, right? Though Alito also thinks the subways are just filled to the brim with illegal guns so who knows. Luckily Breyer was actually useful and cited an amicus brief showing a correlation between violent crime and more permissive concealed-carry laws.

On the surface these cases seem to be connected, both concern state laws placing limits on constitutional rights, but in actuality they couldn't be more different. A concealed carry restriction is well within long-standing interpretations of the Second Amendment and supports a legitimate state interest while a six-week abortion ban explicitly violates all existing abortion precedent. Additionally SB8 is a bizarre legal scheme to undermine judicial review and upend civil procedure while New York's gun law is consistent with accepted legal principles.

Unfortunately, the justifications for allowing challenges to SB8 for Kavanaugh, the possible implications for gun rights, will likely also drive a number of the justices to strike down New York's gun law.

More concerning is whatever possible redress we get with the Texas bounty-hunter law is likely temporary. We still face a substantive challenge to abortion protections with the Supreme Court's agreeing to hear Dobbs v. Jackson Women's Health (a challenge to Mississippi's 15-week abortion ban) on December 1. Even so, it's still important for SB8 to be struck down because we should all be terrified of laws encouraging private enforcement and rewarding dragging your neighbors into court.

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