The S.B. 8 cases present the Supreme Court justices with an interesting dilemma, apart from the questions of abortion and precedent. However the Court resolves Whole Women’s Health v. Jackson and United States v. Texas , it risks setting a precedent that has implications for issues beyond abortion. In effect, the justices have to decide which genie they prefer to let out of the bottle. Concluding that neither private parties nor the federal government may file pre-enforcement challenges to a law structured like S.B. 8 invites state legislatures to replicate its various features in laws targeting other constitutionally protected rights. This is the concern raised in the brief filed by the Firearms Policy Coalition I highlighted earlier . Gun rights are the most likely target of such laws, but we could imagine others (including spending on political speech). This is one of the genies. Concluding that the federal government may file suit in equity to challenge and enjoin and law like S.B. 8, without express statutory authorization, on the other hand, could unleash a different genie. Allowing the federal government’s suit would open the door to further such litigation in defense of constitutional rights that the current Administration prefers. What might this look like? We got a preview during the Trump Administration when Attorney General Bill Barr suggested DOJ would consider actions to challenge state COVID-19 restrictions that infringed upon religious liberty or other interests. Barr’s statement turned out to be bluster. But if the Supreme Court green lights […]
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