Last Friday, California Gov. Gavin Newsom signed SB 1327, a law that allows individuals to sue Californians for selling or attempting to sell particular types of guns, as well as for selling weapons to anyone under the age of 21.
This bill is a legislative trolling of Texas, which last year passed SB 8, a bill that now allows citizens to sue Texans who “aid and abet” abortions after six weeks of pregnancy.
“If they are going to use this framework to put women’s lives at risk, we are going to use it to save people’s lives here in the state of California. That’s the spirit, the principle, behind this law,” Newsom said in announcing SB 1327 becoming law.
The day that the Supreme Court allowed SB 8 to remain in effect, abortion services in Texas almost completely ceased. In contrast, gun sellers in California have not closed their doors. The NRA has not even released a statement in response to the law.
The logic behind the laws may be similar, but a clear difference between SB 1327 and SB 8 has emerged: Texas won.
The threat of expensive and potentially career-ending lawsuits against people who “aid and abet” abortion immediately curtailed abortion access in Texas. People who were planning to have abortions had to scramble to either travel, or start preparing to give birth. Three days after SB 1327 became law, the NRA hasn’t even bothered to release a press release.
This is not surprising. Progressives in general, including gun safety advocates, will not win by playing by the right’s rules—especially when the right’s rules are designed explicitly to accomplish their goal of cementing minority rule.
Some have argued that Newsom is also trolling the Supreme Court, hoping that challenges to SB 1327 will force the conservative-dominated court to confront the mistake it made in allowing Texas’ “abortion bounty law” to stand—or at least to face its own partisan hypocrisy.
But here’s the thing, Republicans don’t care if you think they’re hypocrites. They care about winning (and they are). The Supreme Court’s conservative majority doesn’t care what the public thinks. After the Dobbs opinion leaked in May, Justice Samuel Alito had an opportunity to respond to the public criticisms against him, but he did not make any substantive changes.
The Federalist Society spent 30 years laser-focused on creating the current 6-3 Supreme Court majority. The right-wing legal group succeeded, in large part, because in 2016 then-Senate Majority Leader Mitch McConnell refused to hold hearings for Merrick Garland—nominated to the Supreme Court by then-President Barack Obama—in an election year. Four years later, McConnell had no compunction about fast-tracking hearings for a Trump nominee, Amy Coney Barrett, while votes had already been cast in the 2020 election.
No amount of punchy newspaper ads mocking McConnell for his hypocrisy changed the fact that 6-3 rule is cemented for decades barring extraordinary action. Sure, Gov. Newsom got to run his ad, unfortunately, it only illustrates what happens when we play by their rules.
“…here’s the thing, Republicans don’t care if you think they’re hypocrites. They care about winning (and they are).”
All the attention Newsom has generated for the new law would be better directed toward building power for genuine change. Instead, Newsom is attempting to twist right-wing pretzel logic into a progressive purpose. This is dumb politics, and bad law.
The Texas law that gifted rights to individuals to sue—even if they are not personally impacted by the alleged violation of the law—was rightly referred to as a “bounty hunter” provision, since the law empowered any pro-life Texan to sue people working to improve lives of women and people who get pregnant, and to get paid for doing it!
It is essential to America’s legal system that in order to bring a lawsuit, you must have standing, or be personally impacted by the action you are alleging is unlawful. By providing standing to anyone who differs in opinion, SB 8 dangerously weaponized the law. Ironically, very few lawsuits were actually filed in Texas, since the very existence of the law accomplished its goals. At least until Dobbs was decided.
The anti-abortion group Texas Right to Life still took the opportunity to sue abortion funds. The judge in the case allowed them to exchange discovery before the group even filed its lawsuit. The executive director of the pro-abortion Texas Equal Access Fund and deputy director of the Lilith Fund for Reproductive Equity provided sworn affidavits stating that their organizations fund abortions “after the period in which cardiac activity is usually detectable,” opening the abortion funds up to potential lawsuits.
There may still be interesting lawsuits brewing from gun safety advocates after the passage of SB 1327, but until the people who are making, selling, transporting or distributing illegal assault weapons and ghost guns are scared into ceasing their activities—SB 1327 won’t be as effective as SB 8.
And that’s why Newsom’s legislative stunt is folly, and his efforts to help people in need of abortion rights or gun safety would be better spent on things that have a chance of actually affecting positing change.