How to mess with Texas’ anti-abortion bounty? Apply it to gun sales

Abortion and gun control are two of the most controversial issues in our nation. The Supreme Court has ruled that most abortions are protected by the Constitution and that most private gun ownership is likewise protected. Roe v. Wade was decided by a 7-2 vote of the court’s justices: Heller v. District of Columbia, by a 5-4 vote.  

Now, Texas has devised a mechanism for effectively outlawing nearly all abortions by offering a $10,000 bounty to any citizen who sues an abortion provider or anyone else who aids or abets a girl or woman in obtaining an abortion after a heartbeat is detected in the fetus. This generally occurs at about six weeks into the pregnancy, when some who are pregnant don’t yet realize it.

The Texas lawmakers who enacted the end-run around Roe understand that, under current Supreme Court precedent, a six-week pregnant girl or woman has an absolute constitutional right to an abortion and that if the state had merely outlawed all such abortions — made providers and facilitators subject to criminal penalties — the Supreme Court would almost certainly strike down such a direct affront to Roe. (A Mississippi law which prohibits most abortions after about 15 weeks is now before the high court). So, instead, Texas seeks to deter those who would facilitate abortions after six weeks by threatening them with a civil lawsuit, brought not by the state but by private citizens.

This tactic has produced an initial victory from five justices who refused to enjoin the law. Accordingly, many Texas abortion providers, fearful of being sued, have stopped their constitutionally protected activities, just as the Texas lawmakers hoped they would.

The Department of Justice and abortion rights advocates are now scrambling to devise responses to this new, and thus far, effective method for ending most abortions. Some highly technical proposals seem unlikely to persuade the five justices. Others — such as criminally prosecuting, in federal court, anyone who sues under the law — raise serious civil liberties issues: Obeying a state law, even one that may be held unconstitutional later but which the Supreme Court has refused to enjoin, may violate due process. 

There is, however, another response — a political one —that fights fire with fire and may at least make other states think hard about following Texas’s lead. It also may give pause to the five conservative justices before they consider approving the Texas end-run around Roe.  

Consider this out-of-the-box proposal: Liberal, pro-gun-control states could apply the Texas bounty approach to gun control. New York or Illinois, for example, could declare that gun crime has gotten so serious that the private ownership of most handguns should be deterred. It would be unconstitutional for the state to authorize the criminal prosecution of those who facilitate constitutionally protected gun ownership. But the state could, instead, enact a gun-bounty civil law modeled on the Texas abortion law. It would empower any citizen to sue for $10,000 anyone who facilitates the sale or ownership of handguns. 

Gun-ownership advocates would rail against such a law as circumventing Heller, just as abortion advocates are railing against the Texas law as circumventing Roe. But it would be hard for the courts to uphold the civil mechanism of the anti-abortion law without also upholding the identical mechanism in the anti-gun law.

Creating this “shoe on the other foot” challenge would bring home the dangerous implications of the Texas bounty approach which, if not stopped, could undercut the authority of the Supreme Court to enforce other constitutional rights. Texas could, for example, next apply it to gay marriage — any private citizen could sue anyone who performed or facilitated same-sex marriages — thus circumventing Obergefell v. Hodges. New York could then apply it to Citizens United v. FCC and offer a civil bounty to sue any media outlet that ran corporate political ads. Any state could simply target any Supreme Court precedent it doesn’t like and deter its enforcement by authorizing citizens who oppose it to sue. This would empower every state to effectively overrule Supreme Court decisions, as some southern states unsuccessfully tried to do following Brown v Board of Education in 1954.

The downside of this “what’s good for the goose” approach is that it requires state legislators to enact statutes that they may well believe are unconstitutional. Two constitutional wrongs do not a constitutional right make. But the Supreme Court’s decision to allow the Texas statute to be enforced, at least for now, can be seen as a green light for other states to follow suit, at least until the high court were to rule on the constitutionality of the Texas bounty tactic.

This is far from a perfect solution to a very imperfect and dangerous tactic concocted by Texas. But it will make those who devised it understand that they have created a monster that can easily be turned against rights that they cherish.

Alan Dershowitz, professor emeritus for Harvard Law School, served on the legal team representing President Trump for the first Senate impeachment trial. Dershowitz is the author of numerous books, including “The Case Against the New Censorship,” and his podcast, “The Dershow,” is available on Spotify and YouTube. Follow him on Twitter @AlanDersh.