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Roe v. Wade is an awful Supreme Court ruling. Roe and the string of rulings that have followed upholding the original don't even attempt to be serious constitutional law or have a consistent justification for defending abortion rights.
Nonetheless, in allowing a Texas law that stops abortions at about six weeks to go into effect, the Supreme Court has made a grave error that puts more than the right to abortion at risk.
The 5th Circuit Court of Appeals and the Supreme Court let a legal drafting trick block them from reviewing the law before it is enforced against what the Supreme Court has ruled is a constitutional right. The Texas ploy is to deputize everyone to enforce its law through p to $10,000 private lawsuits instead of authorizing government officials to enforce it.
Last week, the Supreme Court essentially ruled that abortion advocates can’t stop every Texan from filing a lawsuit before they act, nor can it block Texas judges from hearing those suits.
The problem is that there is nothing about this scheme that limits its application to abortion. As Chief Justice John Roberts wrote in his dissent to the court’s conservative 5-4 majority, it could be a “model for action in other areas.”
Gun rights could be lost next
What does Roberts mean? Well, imagine the Democratic supermajority in the California Legislature wanted to throw out the First Amendment to make sure that Gov. Gavin Newsom survived his recall election. They would just have to pass a law that outlaws criticism of the governor, authorizing any Californian to file a $100,000 lawsuit against anyone who speaks the forbidden words.
If California state courts were to follow the Supreme Court's example, would that let California “avoid responsibility for its laws,” as Roberts writes, shredding free speech?
Or consider New York, where the legislature favors restrictions on the Second Amendment. Could it outlaw firearms by deputizing any New Yorker to file million dollar lawsuits against gun owners in the state?
Would that allow New York to "avoid responsibility" for ignoring the right of the people to bear arms despite clear Supreme Court precedent?
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The idea isn't far-fetched. A 2018 Virginia Law Review article by Jonathan F. Mitchell, a former clerk for Justice Antonin Scalia, explicitly pointed out that the model could be applied to gun control, campaign finance, “sanctuary cities” as well as abortion.
Other legislators taking note
Last week, the court opened the door to more constitutional mischief with its lack of action than any decision in generations. Most likely, conservative state legislators around the country will be taking notes on how they can advance their anti-abortion cause. But if Texas and others succeed, expect more legislatures to use the same trick to advance pet causes that happen to be clearly unconstitutional.
Eventually, the court will rule on the merits, and chances are good that any of these ideas would be struck down, but until then all our rights are on the line.
David Mastio is an opinion writer for USA TODAY. Follow him on Twitter: @DavidMastio
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This article originally appeared on USA TODAY: Texas abortion law: Supreme Court unleashes constitutional mischief