This case is important not because of its specific subject matter of abortion, but instead for Texas’s cavalier and contemptuous mechanism for shielding from review potential violations of constitutional rights as determined by this Court’s precedents. It is one thing to disagree with precedents and seek their revision or reversal through judicial, congressional, or constitutional avenues; it is another simply to circumvent judicial review by delegating state action to the citizenry at large and then claiming, with a wink and a nod, that no state actors are involved.
From Amicus‘s perspective, if pre-enforcement review can be evaded in the context of abortion it can and will be evaded in the context of the right to keep and bear arms. While the political valences of those issues seem to be opposites, the structural circumstances are too similar to ignore. As with Roe and Casey, many States view Heller as wrongly decided. Those States, with the help of many circuit courts, have showed an ongoing refusal to accept the holding in Heller and a continuing creativity in seeking to circumvent any protections for, and to chill the exercise of, Second Amendment rights. It is hardly speculation to suggest that if Texas succeeds in its gambit here, New York, California, New Jersey, and others will not be far behind in adopting equally aggressive gambits to not merely chill but to freeze the right to keep and bear arms.
The First Amendment would also be subject to almost immediate attack if the Texas scheme were allowed to stand.
I suspect SCOTUS also sees the danger because:
The Supreme Court Court acted quickly to grant certiorari before judgment in Whole Woman’s Health v. Jackson and United States v. Texas, the two primary challenges to S.B. 8, the controversial Texas abortion law.
This is an important legal question that extends well beyond the issue of abortion. It could, for example, implicate the federal government’s ability to challenge state-level Covid policies (as both the Trump Administration and Biden Administration threatened to do, although concerning different sorts of policies).
H/T to Law Firm of SolitaryPoorNastyBrutish&Short @AubreyLaVentana for the tweet alerting me. I knew about the Texas law and the risk. I did not know about the FPC getting involved.