California Gov. Gavin Newsom (D) signed a law on Friday modeled after Texas’s anti-abortion law SB 8 — the Texas law which uses private lawsuits to target abortion providers. But there’s one important difference between the two state laws: California’s new law sends these litigious bounty hunters against gun dealers who sell certain guns, including assault weapons and weapons with no serial number.
It’s a high-stakes gambit that will test whether the Supreme Court actually meant what it said in Whole Woman’s Health v. Jackson (2021), which held that because of SB 8’s unique style of enforcement, it was immune from meaningful judicial review — and thus would take effect despite very strong arguments that the law was unconstitutional at the time.
Shortly after Jackson was decided last December, Newsom announced that he disagrees with the Supreme Court’s conclusion that states can dodge judicial review of unconstitutional laws. But Newsom also said that, if the Court’s Republican-appointed majority would give this power to states, then he would use it to limit access to firearms.
If states can shield their laws from review by federal courts, then CA will use that authority to help protect lives.
We will work to create the ability for private citizens to sue anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in CA. pic.twitter.com/YPBJ00vN6z
— Office of the Governor of California (@CAgovernor) December 12, 2021
Indeed, California’s new gun law, known as SB 1327, is explicit that the new law’s fate is tied to SB 8’s. SB 1327 provides that its SB 8-like provisions “shall become inoperative” if SB 8 is struck down “in its entirety by a final decision of the United States Supreme Court or Texas Supreme Court.”
The state of California, in other words, appears to be trolling the Supreme Court. SB 1327 should force the justices to either overrule Jackson and admit that they were wrong to let states evade the Constitution, or give California’s new gun ban the same immunity from judicial scrutiny that five justices gave SB 8.
That is, of course, assuming that this increasingly political Supreme Court cares about consistency.
Whole Woman’s Health v. Jackson is an attack on every constitutional right
To understand why Jackson is such a troubling decision, it helps to understand some of the details of how SB 8 — and now, SB 1327 — operate.
As a general rule, someone who wants to challenge an unconstitutional state law in federal court may not sue the state itself. Instead, under Ex parte Young (1908), they must sue the specific state official charged with enforcing that state law. So, for example, if a state passes a law requiring the state police to blockade abortion clinics, a plaintiff might sue the chief of the state police to seek an injunction prohibiting the state’s police force from enforcing the law.
SB 8 effectively bans abortions after the sixth week of pregnancy — a ban that, at the time the law was enacted, violated the Supreme Court’s now-overruled decision in Planned Parenthood v. Casey (1992). The law also provides that this ban “shall be enforced exclusively through … private civil actions” that can be filed by anyone who is not a state employee. So the idea is that, since no state employee enforces the law, no one can be sued to block it. SB 1327 contains similar language providing for private enforcement.
An abortion provider who is successfully sued under SB 8 must pay the plaintiff a bounty of at least $10,000, and there is no upper limit on this bounty. Similarly, SB 1327 provides for “statutory damages in an amount of not less than ten thousand dollars.”
In Jackson, the Supreme Court blessed this method of getting around the Constitution. Under Jackson, a law which is enforced solely by private lawsuits cannot be challenged in federal court. Instead, anyone accused of violating the law must wait until they are sued by a bounty hunter, and then argue that the law is unconstitutional in state court.
But this is not an adequate remedy against an SB 8-style law for two reasons. One is that literally any person who is not an employee of Texas may seek a bounty under SB 8, so an abortion provider could potentially be hit with thousands of lawsuits seeking such bounties. Additionally, because there is no limit on the amount of the bounty, an SB 8 defendant who does not defend against every single lawsuit filed against them could be ordered to pay a bounty of a million dollars, or a billion dollars — or whatever amount is enough to bankrupt the provider.
SB 8 does provide that only one plaintiff may collect a bounty from an abortion provider for each alleged violation of the law. But, again, the penalty for even a single violation is potentially unlimited.
In effect, this means that someone bombarded with SB 8 lawsuits has only two choices: hire an army of lawyers at enormous cost to defend against a barrage of lawsuits, or consent to paying a bounty that could be even more expensive than paying these legal fees.
Nothing in Jackson, moreover, prevents states from enacting an SB 8-style law that targets literally any constitutional right. A state could theoretically pass a law sending bounty hunters against anyone who criticizes the state’s governor, or against any Black child who attends a majority-white public school.
Or, it could, as California has done, enact a law banning certain firearms that many members of the Supreme Court believe are protected by the Second Amendment.
SB 1327 enables the Supreme Court to correct its error in Jackson
It’s hard to exaggerate just how much of a threat Whole Woman’s Health v. Jackson is to the US constitutional order. If states can evade constitutional rights through SB 8’s Rube Goldbergesque enforcement mechanism, then those rights cease to function in any meaningful way.
Jackson effectively returns the nation to its pre-Civil War state, when states were free to violate the Bill of Rights at will.
At oral arguments in Jackson, two justices who eventually joined the Jackson majority — Brett Kavanaugh and Amy Coney Barrett — seemed bothered by the idea of SB 8-style laws neutralizing constitutional rights that conservatives actually care about. Kavanaugh even pointed to an amicus brief filed by the Firearms Policy Coalition, which argued that, if SB 8 survives, “it will undoubtedly serve as a model for deterring and suppressing the exercise of numerous constitutional rights,” including the Second Amendment.
Nevertheless, Kavanaugh and Barrett’s anti-abortion sentiments appear to have prevailed over their desire to live in a country where state governments are required to respect constitutional rights. Both joined the Jackson majority opinion in its entirety.
Now, however, the Court’s anti-abortion majority does not need to fear that a decision striking down SB 8-style laws would lead to a flowering of abortion rights. The Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022) overruled Roe v. Wade. States are now free to ban abortions the old-fashioned way — through laws that are enforced by police, prosecutors, and other state officials.
There is, in other words, no good reason for Jackson to remain good law — even from the perspective of the anti-abortion movement — unless, of course, a majority of the justices want states to have the power to ignore the Constitution.
