Andrew Chung, Lawrence Hurley

WASHINGTON, (Reuters) – As the abortion providers backed President Joe Biden prepare to present Monday’s arguments before the U.S. Supreme Court in their appeal against a Texas near-total ban of the procedure in Texas on Monday, they found an unlikely ally in a gun rights group.

The Firearms Policy Coalition filed a “friend-of-the-court” brief in this case against Republican-governed Texas. It illustrates the unique structure of Texas’ law – enforcement by private citizens, not the government – which alarms advocates of all constitutionally protected rights.

Conservatives warn that liberals could create similar laws to target issues of importance to the right.

To prevent courts from interpreting the Texas law before its implementation, it could be used to target constitutionally protected activities, such as gun rights or religious practice. Roe v. Wade, the 1973 Supreme Court decision that allowed women to have an abortion, is the law protecting this right.

Erik Jaffe, an attorney who filed brief on behalf of the Firearms Policy Coalition said that you cannot shorten the normal steps of judicial reviewing for serious constitutional issues.

Jaffe stated that when laws restrict constitutional rights are passed, the courts must play an important role before they become effective.

It avoids this debate. Jaffe stated, “Too bad that you don’t get the chance to have that discussion except…with my foot on your neck,”

The Supreme Court will examine whether Texas law prevents federal judges from blocking it. It also considers whether the U.S. government can sue Texas for trying to block the Texas law.

One of many Republican-backed restrictive state abortion laws, the measure bans it after approximately six weeks. This happens at a time when many women are not aware they’re pregnant. A documented medical emergency is exempted, but pregnancies due to rape and incest are not eligible.

MISSISSIPPI CASE

Because the future of abortion rights rests on the line, the case is now before the nine justices. On Dec. 1, the court, which has a 6-3 conservative majority, is due to hear another major abortion case in which Mississippi is seeking to overturn Roe v. Wade https://www.reuters.com/legal/government/mississippi-asks-us-supreme-court-overturn-abortion-rights-landmark-2021-07-22. The Texas attorney general has signaled he also wants Roe v. Wade https://www.reuters.com/world/us/texas-urges-us-supreme-court-maintain-states-abortion-ban-2021-10-21 overturned.

The unique thing about Texas’ law is the absence of an enforcement function. Anyone can sue providers of abortion – no matter what personal stake they may have. This means that anyone can sue them and possibly win $10,000 in damages. Critics compare this process to placing a bounty upon abortion providers.

David Noll from Rutgers Law School, New Jersey, who submitted a brief against Texas, stated that at least three states are already considering legislation similar to Texas’s. One in Illinois targets gun dealers.

This does not mean that such laws are immune to judicial review under the Texas citizen enforcement provision. To challenge these laws, one would need to first be sued according to the law and then target the defense mechanism. The fact that there is a law in place may reduce the amount of the misconduct at issue. That is the case in Texas, with abortion clinics complying with the ban since the Supreme Court let it go into effect https://www.reuters.com/business/healthcare-pharmaceuticals/texas-six-week-abortion-ban-takes-effect-2021-09-01 on Sept. 1.

The law’s opponents have drawn parallels to other Supreme Court precedents. Biden’s administration cites as examples laws which would allow gun owners to sue them and that prohibit all independent spending on political campaigns.

These statutes would also be in violation of the Constitution as it is interpreted here. However, Texas’s theory states that they can be applied without prior review by the court, which would allow them to chill protected activities. The administration also stated in court documents that the constitutional defense could have limited effect on enforcement proceedings.

Others laws, which allow people to file individual claims over contentious issues such as transgender rights, have also been passed by legislative leaders. These laws are similar to earlier statutes which allowed people to sue for violations of civil or environmental rights.

Tennessee’s law prohibiting transgender students using bathrooms that are compatible with their gender identity contains a clause that allows individuals to sue the local school district if they encounter someone of the opposing sex in a restroom.

Some groups, including religious ones and conservatives that are against abortion, have expressed little concern over the Texas law’s structure. However they feel critics have exaggerated possible consequences.

Walter Weber was a lawyer representing the American Center for Law and Justice religious right legal rights group. After being sued, Weber said nothing would stop providers of abortion from challenging the law.

Weber explained that “abortion supporters crying wolf” can help raise money and cover legislative and executive measures to support abortion.

Weber asked Weber, “Why is abortionists so afraid?”