California’s Next Step (I’m Kidding)

What if California used the Texas anti-abortion law as a model and authorized anyone to sue anyone who has refused to get vaccinated?

By David K. Shipler

Now that Californians have crushed Republicans’ effort to recall Democratic Governor Gavin Newsom (with 63.9 percent of the votes at last count), maybe the left ought to try what the right has done in Texas: Let anyone sue anyone who helps anyone do something you don’t like. In the case of Texas, it’s getting an abortion.

Imagine if liberal California — or New York, or the District of Columbia, for example — did the same on issues dear to the hearts of “progressives.” The Texas law recently enacted by radical Republicans allows anyone in the entire country to bring a civil suit against anyone in the state who helps a woman exercise her constitutional right to abortion after a fetal heartbeat is detected. Any bounty hunter who wins in court gets $10,000 plus legal fees from the suit’s target, whether doctor, nurse, receptionist, or possibly the Uber driver who takes the woman to the clinic.

The tactic is designed to remove the state as the enforcer and thereby befuddle the courts, which otherwise might enjoin government from putting the law into effect. That gave five anti-abortion Supreme Court justices just enough leeway to refuse to block the Texas law, even temporarily. So, let’s consider what the left might do in return.

First, California could pass a law allowing anyone who refused to be vaccinated against Covid to be sued by anyone anywhere in the country. Going unvaccinated is an obvious public health threat, and while legitimate medical and perhaps religious exceptions could be made, those refusing the shots incubate evolving variants and endanger children and the immunocompromised. Therefore, under the Texas formula, everyone has what judges call “standing” to sue.

Then, the hunt would be on. Waves of vaccine vigilantes could collect names. They could troll the internet for anti-vax postings, scour the streets of Orange County for signs of resistance, knock on doors to inquire with purported innocence. They could launch minor careers chasing down violators for $10,000 apiece.

Anti-vaxers might wriggle out of liability by rushing to get the shots, and maybe the law should let them off the hook if they rectify their behavior. Or, maybe not. An abortion cannot be reversed, obviously, and an offense against the public good is an offense at the time it’s committed, no matter the subsequent regrets.

Now, take gun possession. If California law permitted anyone in the country to sue anyone in California who had a gun, what a bounty that would bring. There are few threats to public health and common welfare more severe than guns, and all Americans have a standing interest in curtailing weapons proliferation. Again, a few exemptions might be in order: for those whose work poses a safety risk, for example, or hunters properly trained and licensed and limited to one non-automatic firearm apiece. But the masses of citizens do not need guns, and they ought to face that $10,000 hazard.

Conservatives will cry, “Second Amendment!” Yes, as interpreted oddly by a bare majority in a conservative court with convoluted grammatical sophistry that imagined an individual right in an amendment that mentions only “a well regulated militia.” But constitutional rights seem to come and go with the shifts in the political winds. There is also a constitutional right to abortion, established by the Supreme Court in Roe v. Wade, and that precious right is evidently about to go.

Although all the Republican-appointed justices pledged under oath at their confirmation hearings to respect judicial precedent, they now do otherwise. (The law has a word for that: perjury.)

Let’s pretend that the justices of the Supreme Court are principled, consistent, and transcend the country’s divisions rather than reflect them. Let’s see California or New York or D.C. or another courageous jurisdiction throw the right-wing’s tactics back at them. Would the Supreme Court conservatives block such laws of the liberals or let them take effect?

And if they were to take effect, as the Texas abortion law has been allowed to do, then what would we have? We would have vigilante, bounty-hunting civil suits against all manner of controversial policies. We would have an eroded rule of law, unpredictable enforcement by lynch mob, a debilitated judicial system, and a chaotic legal landscape.

That is why the title of this essay says, “I’m Kidding.” I do not want the left to use the same tactics as the right. I want the left to uphold the due processes of the judicial mechanism, even if Republican legislators and Republican judges do not. I do not trust zealots at either end of the political spectrum, and while the greatest danger to the democratic system in the United States is now posed by the radical right, autocratic intolerance can be found on the radical left as well. Republicans who invent ways to impede voting, undermine elections, evade judicial scrutiny, and undermine due process should be careful what they wish for. Two sides can play that game.

And the justices of the Supreme Court ought to be mindful that as they facilitate radical agendas, they risk their own authority. They have no battalions. They rely on the respect for their power inherent in the institutions and officials and citizens of the nation. Once their rulings become so ignoble as to be ignored, disobedience will grow and grow until it becomes a habit. Then we lose our Constitution, our law, and our reasonable expectation of order.