Sauce for the Goose

The theme for this week’s column is “Be careful what you wish for.” Or maybe “What’s sauce for the goose is sauce for the gander.” Either applies.

Last fall the state of Texas enacted its fetal-heartbeat abortion ban, the strictest abortion ban in America at the time.

The Texas Legislature carefully crafted the law to bypass court scrutiny by empowering individuals to enforce it rather than the government. In Texas, anyone who knows a woman in the state is getting an abortion after six weeks of pregnancy can sue both the abortion provider and those who helped accomplish it – including the Uber driver who took the patient to the abortion clinic. The “violators” have to fork over as much as $10,000 if the lawsuit is successful.

Three times the law has been challenged in the Supreme Court, and three times the court has allowed it to stand even though the justices admitted they had serious questions about its constitutionality. It’s the civilian enforcement principle that the court says ties its hands.

So what could go wrong? 

Plenty.

Since the Supreme Court allowed the law to take effect, its legality has begun to infect other important social disputes in other states. 

Sometimes it’s for conservative purposes akin to the pro-life movement. For example, Florida now allows parents to sue teachers if they think the educators have broken curriculum laws restricting classroom discussion of homosexual topics.

But, in line with the gander-goose/sauce aphorism, states with a liberal bent have started to employ the same principle for their own purposes. 

California lawmakers and the state’s governor, for instance, have made a push along similar lines to help that state enforce its ban on assault-style rifles. Their proposal would allow a civilian who discovers someone making or selling an assault weapon to sue that person for up to $10,000.

The courts will have difficulty making the argument that the lawsuit ploy applies legally to Texas abortions but not to California assault gun manufacture and sale.

So far, legislators have proved skittish about arming citizens across the nation with the power to sue on high-profile social issues. It’s sort of like the nuclear standoff: most lawmaking bodies prefer not to give “their side” in the political struggle the go-ahead to deploy private lawsuits for fear that the “other side” might do the same on other issues down the road.

But the recent spate of mass shootings, like the bloodbaths at Buffalo and Uvalde, may prove too tempting for gun safety activists to resist. 

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