One of the tricky things about SB 8, Texas’s latest attempt to ban abortions, is that private citizens are the enforcers, not the state. If I were to drive my sister to Planned Parenthood for “something”, nosy neighbor Karen could sue me for $10,000 on the chance I’m aiding in an abortion. Even if I would win, I’d still be responsible for my legal fees, not Karen. It’s even structured in a way to allow anyone, even if they don’t live in Texas, to report someone is aiding in an abortion (Tik-Tokers are having a lot of fun with that at the moment).
Clinics in Texas are already complying with the law:
“Our decision to comply didn’t come from our values—complying with the six-week ban goes against our mission, vision, and beliefs about what people deserve in Texas,” said Amy Hagstrom Miller, the president and CEO of Whole Woman’s Health, which has four clinics in the state. “Our decision came from being forced and advised to comply as a way to protect our physicians and staff from these frivolous lawsuits.”
…
It’s not a question of if these lawsuits are coming, Hagstrom Miller explained, but when. “The anti-abortion protesters screaming outside on the sidewalk already know [our physicians’] names,” she said.
Aside from allowing anyone to sue, SB8 was also written to get around federal oversight. Section 171.207, titled "Limitations on public enforcement" states that private citizens, not any government officials, are to enforce the law.
…. the requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person, except as provided in Section 171.208.
Last I recall, federal courts don’t take up many private civil action cases. Additionally, Section 171.208(e) eliminates many conventional defenses:
(e) Notwithstanding any other law, the following are not a defense to an action brought under this section:
(1) ignorance or mistake of law;
(2) a defendant's belief that the requirements of this subchapter are unconstitutional or were unconstitutional;
(3) a defendant's reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates this subchapter;
(4) a defendant's reliance on any state or federal court decision that is not binding on the court in which the action has been brought;
(5) non-mutual issue preclusion or non-mutual claim preclusion;
(6) the consent of the unborn child's mother to the abortion; or
(7) any claim that the enforcement of this subchapter or the imposition of civil liability against the defendant will violate the constitutional rights of third parties, except as provided by Section 171.209.
Item #4 is the main one. It allows Texas state courts (or other red states who would copy this bill) to ignore federal rulings.
And all that conservatives on the Supreme Court need to do is ignore the request for relief or stay of the bill. No need for SCOTUS to issue a “Roe v Wade is overturned” ruling. Just let it die on the shadow docket. Cheif Roberts doesn’t dirty his hands in the culture wars while other red-states pass similar laws.
So what does this have to do with militias? Well, as Electoral-Vote.com points out, if SCOTUS passes on this and allows a state legislature to have providence over federal rulings, why not try it with militias?
So, what will SCOTUS do? Everyone knows they want to restrict abortion, and this would allow them to do so without getting their robes dirty. Undoubtedly, if they chose to look the other way, many red states would quickly pass laws based on the Texas law. On the other hand, do the justices want to yield their authority over this very significant issue to...a state legislature? Further, will they be concerned about some of the cans of worms this would open? What if a blue state passed a law that said that any citizen can sue a gun owner for $10,000 unless that gun owner can prove they are a member of a "well-regulated militia"?
Maybe a law like that would have more legal standing since most of the 2nd amendment refers to a well-regulated militia. A state with low gun-ownership, say Massachusetts or Hawai’i, essentially copies SB8, emphasizing what “well-regulated militia” counts as under state law, and then follow Texas’s approach to the federal court system.
This is more a thought experiment since we are talking about Democrats acting boldly. Still, maybe a NY gubernatorial candidate pledges to get a bill like this through. If DC ever gets statehood, could prove to be a good issue to run on.