Kavanaugh Highlights Texas Abortion Law’s Threat to ‘Second Amendment Rights, Free Exercise of Religion Rights, Free Speech Rights’

Kavanaugh Highlights Texas Abortion Law's Threat to 'Second Amendment Rights, Free Exercise of Religion Rights, Free Speech Rights'

Texas law S.B. 8 bans pre-viability abortions, which is something that Texas lawmakers are specifically prohibited from doing under existing U.S. Supreme Court precedent. To dodge legal accountability in federal court, those state lawmakers outsourced S.B. 8’s enforcement to private actors. According to the law, “any person” may sue “any person who…aids or abets the performance or inducement of abortion” and win at least a $10,000 bounty plus legal fees if the civil suit is successful. Because no state official is doing the enforcing, Texas maintains, no state official may face a pre-enforcement proceeding in federal court over this obvious denial of a judicially recognized constitutional right. The U.S. Supreme Court heard oral arguments today in two related cases that question whether Texas’ novel legal scheme should be allowed to stand. Justice Brett Kavanaugh cut to the heart of the matter, asking Texas Solicitor General Judd Stone about “the implications of your position for other constitutional rights.” What if a state passed a law that says “everyone who sells an AR-15 is liable for a million dollars to any citizen,” Kavanaugh asked the Texas official. “Would that kind of law be exempt from pre-enforcement review in federal court?” Stone conceded that his theory would shield that gun control law too. “My answers on whether or not federal court review is available does not turn on the nature of the right,” he told Kavanaugh. So “Second Amendment rights, free exercise of religion rights, free speech rights,” Kavanaugh emphasized, could all […]

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