Column: Newsom stares down Texas on abortion and guns, winning political points in the process


SACRAMENTO — 

Gov. Gavin Newsom’s Texas copycat ploy is less about enacting a vigilante law than playing a poker chip.

Either way, it’s a smart move.

Yes, the Texas vigilantism is odorous. But Newsom is justified in countering the Lone Star State’s cynical attack on abortion rights while strengthening California’s enforcement of gun laws.

Loyola Law School professor Jessica Levinson puts it this way: “Newsom is saying to Texas, ‘I’ll see your abortion restriction and raise you a gun restriction.’”

There’s one major difference between what Texas did and what Newsom proposed: Texas targeted abortions that are constitutionally protected. The California governor’s aim is at assault weapons and untraceable ghost guns that are illegal in this state.

Abortions up to roughly 24 weeks of pregnancy, when the fetus is viable outside the womb, have been constitutionally protected since the 1973 Supreme Court ruling in Roe vs. Wade. But the current Trump-laden court is showing signs of dumping Roe in a Mississippi case. That state has banned abortions after 15 weeks of pregnancy.

Texas, like Mississippi, didn’t wait for the Supreme Court to dismantle Roe. It leaped ahead by outlawing abortion after six weeks of gestation, before many women even realize they’re pregnant.

And Texas creatively protected its new law from federal court cases challenging the measure’s constitutionality by making it virtually impossible to file such suits.

A plaintiff would need to sue a state official who was enforcing the law. To avoid that, Texas took enforcement out of the hands of state officials and gave it to private bounty hunters who get paid $10,000 for each violation they find.

This inevitably has had a chilling effect on abortion providers. They’re obeying the law because financially they can’t afford not to.

The Supreme Court on Friday refused to block the law.

A good friend of mine calls this “the Texas tattletale law” and adds, “I don’t like laws that encourage spying.”

But that’s what Newsom is proposing — that private bounty hunters be empowered to sue anyone who sells, distributes or manufactures an assault weapon or ghost gun kit. They’d get at least $10,000 plus attorney fees for each violation.

Unlike Texas, California also would enforce its laws. But if those laws were ever ruled unconstitutional by the Supreme Court, they presumably still could be enforced by private bounty hunters in civil cases — the same way Texas’ unconstitutional abortion ban currently is.

Newsom, in a statement, said he was “outraged” by the Supreme Court’s decision.

“But if states can now shield their laws from review by the federal courts … then California will use that authority to protect people’s lives, where Texas used it to put women in harm’s way,” the governor said.

“If the most efficient way to keep these devastating weapons off our streets is to add the threat of private lawsuits, we should do just that.”

I interviewed several academicians and politicians and found little enthusiasm for Newsom’s “turnabout is fair play” strategy. But there was no harsh criticism either.

“It’s smart for him politically,” says Levinson, who teaches political law. “He wins if he wins — and wins if he loses.”

If his law holds up in court, she says, Newsom will have shielded California’s popular firearms laws from the gun lobby. If it’s quashed, he gets credit for trying.

Moreover, she adds, “he loves being the historic first.”

And here he is with another first: the first blue state governor to strike back at Texas’ attack on abortion rights.

But Levinson adds: “In a way, this seems so preposterous. Just insane. But it’s deadly serious. The Supreme Court has given states a road map of how to pass unconstitutional laws and prevent federal courts from overturning them. So, here we are. We’re in Alice in Wonderland.”

UC Berkeley law professor Khiara M. Bridges asks: “What if a law says you can’t practice your religion — Islam, Hindu? That’s clearly unconstitutional. But it takes a long time to litigate constitutionality. It would be years that people wouldn’t be able to worship. ‘Private’ means you can’t get into federal court.”

“I like the Constitution,” she adds. As for Newsom’s proposal: “I have two minds. I definitely see the negative. But I don’t like assault rifles.”

Erwin Chemerinsky, dean of the UC Berkeley Law School, says: “I don’t like trying to avoid the federal Constitution. I don’t like it when Texas is doing it. And I don’t like Newsom doing it.

“But I do think what Newsom is doing is better. It’s different. And to his credit, it’s a way of pointing out the implications of a very dangerous Supreme Court decision.”

Legislators will probably roll their eyes and pass some version of what Newsom proposes. It will require only a simple majority vote and Democrats hold a supermajority.

“I’m going to look at it closely,” says Assemblyman Marc Levine (D-Greenbrae). “I’m very concerned about Americans taking the law into their own hands, and that’s what the Texas law encourages.”

Assemblyman Phil Ting (D-San Francisco) says he intends to introduce legislation similar to what New York passed this year. It would allow people injured by firearms to file lawsuits against dealers or manufacturers when the weapons are sold or marketed irresponsibly — such as targeting gangs for customers.

“This is probably the cleanest way to get where the governor wants to go,” Ting says.

Not exactly. Newsom wants to stare down Texas. Bravo.