Last year, when Texas passed legislation banning most abortions once a fetal heartbeat is detected, at around six weeks, a provision of the bill that got considerable attention, had to do with civilian enforcement. Especially after the U.S. Supreme Court allowed, multiple times, for the Texas law to go into effect, there were conversations that other states would follow suit, more liberal states, though, to do with their own pet projects. And, it looks like that will be the case with California and their assault weapons ban.
Gov. Gavin Newsom (D-CA) who is about as outspoken as one can get in his policy views on abortion and gun control, referenced the Texas law during a press conference on Friday in Del Mar, as Julie Watson and Adam Beam reported for the Associated Press. Newsom also called out the Supreme Court, saying their decision to let the law remain in effect is "absurd" and "outrageous."
"But they opened up the door. They set the tone, tenor, the rules. And either we can be on the defense complaining about it or we can play by those rules. We are going to play by those rules," Newsom said. He also later offered a challenge to the Court. "We’ll see how principled the U.S. Supreme Court is."
In a press release from the governor's office, statements from State Sen. Robert Hertzberg (D-Van Nuys) also appeared to taunt the Court.
"In a just world, a woman’s right to choose would be sacrosanct, and California’s people would be protected from ghost guns and assault weapons. Sadly, a misguided Supreme Court decision has turned common sense on its head. With this bill, we take advantage of the Court’s flawed logic to protect all Californians and save lives," Hertzberg claimed.
Several gun bills were introduced on Friday, including AB 1594, from Assemblymembers Philip Ting (D-San Francisco), Mike Gipson (D-Carson) and Christopher Ward (D-San Diego). The bill "would allow individuals and the California Attorney General to sue manufacturers and sellers of firearms for the harm caused by their product," as described by the press release.
Gun violence is out of control. The question is, what are we doing to do about it?
— Office of the Governor of California (@CAgovernor) February 19, 2022
We know gun safety works so we’re flipping Texas’ abortion law on its head to allow individuals to sue those who manufacture, import/sell assault weapons, ghost guns & ghost gun kits. pic.twitter.com/lrDblcEBex
Newson is not only motivated by revenge against the Texas abortion law, but a ruling from U.S. District Judge Roger Benitez last June overturned California's assault weapons ban, with Judge Benitez's decision drawing particularly strong words from Newsom and the state's Democratic Attorney General Rob Bonta.
Last November, in an en banc decision of 11 judges, the U.S. 9th Circuit Court of Appeals ruled 7-4 to uphold the law from 1989.
As clever as Newsom and the Democratic legislature may think they're being, the report notes it may not be that simple, and even concedes that the so-called right to abortion is not explicitly guaranteed in the Constitution. Through the 1973 case of Roe v. Wade, the seven male justices voting in the majority imposed abortion on demand in all 50 states via a penumbra, or feeling.
From Watson and Adam:
Newsom and his Democratic allies in the state Legislature are convinced the U.S. Supreme Court would have to uphold their gun proposal if it allows the Texas abortion law to stand. But it might not be that simple.
The U.S. Constitution specifically says people have a right to bear arms, and the Supreme Court has interpreted that broadly. The right to an abortion is not specifically protected in the Constitution. But the court has recognized lots of other protections that aren’t explicitly stated in the Constitution.
Melissa Murray, a law professor at New York University, said she believed if the conservative court majority could find a way to distinguish between the Texas law and the California proposal, they will.
“I think it will be a real test of this court’s principles about how they regard a law like that that basically does exactly what (the Texas law) did only in the context of assault weapons,” she said.
Those who would take issue with the Texas abortion law don't seem to have carefully considered why the enforcement mechanisms are in place as they are.
I went more in-depth in a column last December, offering that Wisconsin's Democratic Attorney General Josh Kaul proved how necessary such an enforcement mechanism was, as he's indicated he won't enforce the state's abortion ban if Roe is overturned.
I also cited reasoning from the person who perhaps knows the best, State Sen. Bryan Hughes, a Republican who is also an attorney. He wrote the Texas bill. As he explained in "The Texas Abortion Law Is Unconventional Because It Had to Be," his September opinion piece for the Wall Street Journal:
Yet prosecutors from across the country—including district attorneys from Dallas, Bexar, Nueces and Fort Bend counties in Texas—have announced their refusal to enforce laws regulating abortion, even before they become law and before they’re litigated. Even if Roe is overturned, they say, they won’t enforce democratically passed abortion laws. If officials sworn to enforce state laws pre-emptively decide they won’t do it, even when the laws are passed and ratified and have not been challenged in the courts, state legislators are obliged to get creative.
Many crimes have a civil analog. Someone who commits a criminal assault, for instance, may be sued in civil court for assault and battery (recall the civil O.J. Simpson trial). Someone who steals property from another may be pursued for the civil tort of conversion. In almost every case, the person wronged, and therefore the person who brings the claim, is the plaintiff.
In the case of abortion, the wronged party has been extinguished. If we can’t depend on criminal enforcement, even if Roe is overturned, and the party who directly suffered harm cannot bring a claim, what’s left? Someone else must enforce the law.
To Newsom's ire, the U.S. Supreme Court last December allowed the Texas abortion law to remain in effect while also allowing for abortion providers to challenge the law in federal court. As Madeline reported earlier this month, figures released from the Texas Health and Human Services Commission showed that the law resulted in a 60 percent decrease in abortions the first month after it took effect.
