States weigh Texas-style enforcement for guns, schools after Supreme Court abortion ruling

WASHINGTON – A Texas law that relies on private citizens to enforce a ban on most abortions inspired copycat proposals as state lawmakers use similar enforcement methods to affect gun ownership, education and transgender rights.

In Florida and Missouri, for example, lawmakers are considering bills that would permit residents to sue schools for teaching about institutional racism. California and Illinois are weighing legislation that could make it easier to sue gun manufacturers.

Last month, the Supreme Court let stand a Texas law that permits civil lawsuits against doctors, nurses and anyone who helps a person obtain an abortion after cardiac activity is detected in an embryo – usually at around six weeks of pregnancy. The law provides damages starting at $10,000, an award that critics said amounts to a bounty.

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"It's basically like deputizing large components of civil society to enforce community mores," said Jon Michaels, a UCLA law professor who has studied the issue of private enforcement. "We've got to take stock of what that's going to actually look like."

Similar enforcement mechanisms crop up in bills that have nothing to do with abortion, though it's not clear whether any of those proposals will become law.

A bill in Illinois would permit anyone to sue a gunmaker – and collect at least $10,000 in damages – if one of its guns causes injury or death. Sponsors call it the "protecting heartbeats act," a reference to the Texas law, which supporters call the Heartbeat Act.

"If the Supreme Court is going to say that this is an option for people to have when it comes to stopping something they don't like … then I’m going to take advantage of that and use that same logic," said Rep. Margaret Croke, a Democrat who represents a portion of Chicago in the state Legislature and is the lead sponsor on the bill.

The Supreme Court ruled Dec. 10 that the Texas abortion law would remain in place while litigation over its constitutionality continues in lower courts. The decision was applauded by anti-abortion groups and set off furious recriminations on the left, where it is seen as presaging the court’s hostility toward reproductive rights.

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Below the surface of the abortion fight is a debate about the law’s enforcement. Critics of the ban, known as SB 8, predict it will create headaches for both liberals and conservatives by making it easier for people to sue over almost any policy they dislike, even when judges have ruled those policies are constitutional.

The Supreme Court ruled in 1973 that people have a constitutional right to an abortion up until the point when a fetus can survive outside the womb, about 24 weeks. If anti-abortion groups can get around Roe v. Wade by relying on private lawsuits, critics asked, why couldn’t the same approach be used on other controversial issues?

"This is no hypothetical. New permutations of SB 8 are coming," Associate Justice Sonia Sotomayor predicted in her dissent from the court’s opinion allowing the Texas law to remain in force as litigation continues in lower courts. "This choice to shrink from Texas' challenge to federal supremacy will have far-reaching repercussions. I doubt the court, let alone the country, is prepared for them."

Michaels said he expects states to "get more and more creative" with those proposals.

Not just abortion

Granting individuals a right to sue isn’t new. What’s novel about the Texas abortion law is that it allows anyone to sue, including those who have no connection to a patient. Usually one of the first hurdles plaintiffs must clear when they file a lawsuit is proving that they were, in some way, personally harmed by an action or policy.

Croke’s gun bill would allow anyone to sue a gun manufacturer, even if that person was never the victim of gun violence.

Another bill pending in Illinois would allow anyone to sue someone else who possesses or makes a false COVID-19 vaccination card. Like the Texas abortion law, the proposal would set a $10,000 floor for damages if the suit is successful.

Missouri state Sen. Andrew Koenig, a Republican, introduced a bill last month that would bar schools from compelling teachers or students to "affirm, adopt, or adhere" to the concept that the United States "is fundamentally or irredeemably racist or sexist." It would require schools to promote an "overall positive" history of the United States.

One of the ways those measures would be enforced: Lawsuits brought by "any aggrieved person, taxpayer, or citizen" living in the school district at issue. Schools purposefully violating the measure could face damages of up to $10,000.

Koenig, who said his proposal was not influenced by the Texas abortion bill, represents a district near St. Louis where some parents have pushed back on public schools teaching critical race theory, a loosely defined concept that involves considering how slavery and racism influence institutions such as the police and government.

"It’s common sense," Koenig said. "Parents have a right to be involved in their child's education."

Koenig said he wants to make sure school districts take the proposal seriously, should it become law. "There's one thing that a school district understands" when it comes to enforcement, Koenig said. "Money."

Several states are considering proposals to ban transgender girls from playing on girls’ school sports teams. Many of those proposals include identical language that would allow a student who suffers a "direct or indirect harm" from that participation to sue.

LGBTQ advocates argued the sponsors of those bills included the word "indirect" because it's questionable whether a court would find cisgender girls are directly harmed by such policies. The New York-based U.S. Court of Appeals for the 2nd Circuit is considering that question in a lawsuit filed by a group of parents from Connecticut who challenged the inclusion of a transgender girl on a high school girls' track team.

"There doesn't appear to be any actual nexus between what one could reasonably perceive as an injury to an individual when you have this broad construct that essentially opens the state courthouse doors to anybody who ultimately has a policy problem," said Jason Starr, director of litigation at Human Rights Campaign, which advocates for LGBTQ rights.

Bigger picture

Though Texas' enforcement mechanism is being carried into other contexts, it is still most frequently popping up in other abortion proposals. At least seven states have introduced copycat abortion bans this year, according to the Center for Reproductive Rights, which represented a Texas abortion clinic at the Supreme Court last year.

Lawmakers in Arizona, Oklahoma, Alabama, Arkansas, Florida, Missouri and Ohio are considering similar proposals, the group said. South Dakota Gov. Kristi Noem, a Republican, proposed legislation last week that mirrors the Texas law.

Some experts said that the enforcement mechanism Texas used for SB 8 won't easily translate into other contexts, such as gun regulation, and that concerns about a legal system spinning out of control are overblown. That's because a similar civil lawsuit filed against a gun owner, for instance, would probably run up against the Second Amendment, and the Supreme Court has indicated it would probably limit such suits.

The opposite is true with abortion: The high court is likely to rule this year in a case challenging the constitutionality of Roe v. Wade. If the court overturns Roe, it would eliminate the best defense abortion clinics have against laws such as SB 8 if they are sued for violating them in state court.

“Local governments pass laws that are unconstitutional all the time. And if I'm a competent general counsel, I'll just tell my client, ‘This is an insane law. Just continue operations as they are. And if someone sues you, they will lose,’” said Josh Blackman, a law professor at South Texas College of Law Houston.

"But that can't be done with abortion," he said, because of the uncertainty around Roe.

That's part of what makes SB 8 unique, Blackman added.

"I'm not sure that model extends to other contexts," he said.

This article originally appeared on USA TODAY: Guns, education 'bounties' weighed by states after Texas abortion ban