Texas doctor lawsuit could be best abortion law test

DALLAS – When the most restrictive abortion law in the United States went into effect in Texas on September 1, it worked exactly as intended: it effectively ended all abortions in the second most populous state.

But her very ingenuity – which ordinary citizens, not state officials, apply – has begun to spark lawsuits beyond the control of the anti-abortion movement that fought for the law.

On Monday, a man from Arkansas and another from Illinois, both struck off the bar with no apparent association with anti-abortion activists, filed separate lawsuits against a San Antonio doctor who has written publicly about the practice of ‘an abortion. The lawsuits appear to be the first lawsuits under the law, known as Senate Bill 8, which delegates private citizens, no matter where they live, to sue doctors or anyone else who ” helps and encourages ”an abortion performed after fetal heart disease. activity is detected.

Legal experts have said that lawsuits in state court may be the most likely way to definitively resolve the constitutionality of Texas law, which has withstood legal tests. Two other large-scale challenges filed in federal court, brought by abortion providers and the Department of Justice, raise difficult procedural questions.

Anti-abortion leaders in Texas have said they never expected many people to sue, believing the process would be too costly and onerous.

“These out-of-state lawsuits are not what the bill is intended for,” said Chelsey Youman, state director of Texas and national legislative counsel for Human Coalition, an anti-abortion group which said that he did not intend to take legal action against the doctor, Dr Alan Braid, or encourage others to do so.

“The goal is to save as many lives as possible, and the law works,” Ms. Youman said, adding that the idea behind the law was that the mere threat of liability would be so intimidating that suppliers would simply comply. .

From the start, abortion rights activists warned the law would lead to a Wild West, in which vigilantes would prosecute anyone associated with an abortion, from carpool drivers to parents of pregnant women, in order to earn a gain. . The unique enforcement mechanism, designed to bypass judicial review, invites individuals to prosecute anyone involved in the process other than the pregnant woman. If the plaintiffs win, they will receive $ 10,000 and their legal costs will be covered.

All was calm until Saturday, when Dr. Braid wrote in the Washington Post that he performed an abortion on September 6 to a woman who was “beyond the new state limit.” He knew he was inviting legal action, he wrote, and “was taking a personal risk, but that’s something I firmly believe in.”

Marc Hearron, senior attorney for the Center for Reproductive Rights, an abortion rights group representing Dr Braid, said the doctor performed an ultrasound that detected cardiac activity before performing an abortion, which means that the procedure actually violated the new state law.

The two lawsuits allow Dr. Braid, and those who represent him, to make the argument that the law is unconstitutional under both Roe v. Wade, who granted women the constitutional right to an abortion, and Planned Parenthood v. Casey, who confirmed it. If that defense is accepted on appeal, legal experts have said, the cases could set precedents effectively striking down Texas law – a significant loss for the anti-abortion movement.

From the standpoint of the anti-abortion movement, neither of the two men who filed a complaint this week is an ideal complainant. Arkansas man Oscar Stilley, who described himself in his lawsuit as a ‘struck off and disgraced’ lawyer, said he was ‘not pro-life’ and just wanted to ‘defend’ the law . Illinois man Felipe N. Gomez described himself in his complaint as a “pro-choice complainant.”

Ms Youman assumed the lawsuits were “plants” and described Dr Braid’s opinion piece as an attempt to bait a frivolous lawsuit that would challenge the constitutionality of the law in court.

Mr Gomez, 61, said in an interview that he decided to file a complaint to challenge what he saw as government intrusion into private health care decisions. He described himself as’ pro-choice ‘on a range of medical issues and wondered why some supporters of Texas’ new abortion restrictions were supporting mandates for pregnant women while opposing government mandates. for vaccines to fight the coronavirus pandemic. (Mr Gomez said he personally harbored a long-standing aversion to needles and did not support vaccination mandates.)

He also said he filed a complaint in connection with what he called a “public interest law hobby” that he hoped to pursue when he next retires. Mr. Gomez was suspended from his right to practice law in Illinois because of emails he sent to other attorneys; he is currently in dispute over it, he said.

So far, the Wild West scene that abortion rights activists warned against has not materialized. After the law was passed – which the anti-abortion movement hailed as a clear triumph – clinics across the state immediately said they would comply; some said they had temporarily stopped performing abortions.

That seemed to be enough for anti-abortion groups, including Texas Right to Life, said John Seago, the group’s legislative director. In the three weeks since the law came into force, “we have no evidence that a violation has taken place,” he said, adding that the group estimated that “more than 2 000 lives have been saved so far by the Texas Heartbeat Act “. “

The group, which lobbied for the passage of the new law, set up a whistleblower site allowing people to submit anonymous information about illegal abortions. He received a flood of bogus advice and the group were working on “extra security” after changing servers before bringing the site back up and running, Seago said.

Mr Seago said the anti-abortion movement in the state was united in its distrust of Mr Braid’s vague but high-profile announcement of his violation. “Opinion it doesn’t say, ‘I’m open for business, anyone who wants an abortion, here’s my address, schedule a visit,’ ”he said. “It’s much more calculated than that.

The lawsuits were a very predictable outcome of the construction of SB 8, Mr. Hearron of the Center for Reproductive Rights said, because the law allows anyone to “fit into a health care decision between a patient and his or her. doctor”.

When the United States Supreme Court rejected a request by a group of abortion providers, including the Center for Reproductive Rights, to block the law in an unsigned ordinance on September 1, citing “complex and procedural issues. new, “the five majority judges wrote that their decision was” not based on any finding regarding the constitutionality of Texas law, and does not in any way limit other appropriate procedural challenges to Texas law, including in the courts of the State of Texas “.

The correct way for abortion providers to challenge the law, the majority suggested, was to be sued and invoke the unconstitutionality of the law as a defense. Now that it has been set in motion, a decision by a state trial judge in one of the new cases could be appealed to the Texas state court system and eventually reach the Supreme Court of the United States.

“This is the nicest and cleanest way to get there,” said Paul M. Smith, a Georgetown law professor, in a briefing presented Tuesday by his Supreme Court Institute.

The Supreme Court is also due to hear arguments on Dec. 1 in a challenge to Mississippi’s ban on most abortions after 15 weeks. In this case, he was asked to quash Roe v. Wade, the 1973 decision establishing a constitutional right to abortion. If so, the constitutional objection to the Texas law would likely be rendered moot.

Last week, Governor Greg Abbott of Texas signed a separate bill banning the provision of abortion medication after seven weeks of pregnancy. This bill is expected to come into force in December.

Outside the Alamo Women’s Reproductive Services, the San Antonio abortion clinic where Dr Braid works, anti-abortion activist Alejandra Gonzalez paced in the hope of intercepting the women entering inside. “We pray for you. God bless you!” Ms Gonzalez, 18, screamed as a woman walked towards her car.

The new law, she said, gave hope to the anti-abortion movement. “Our goal is to end abortion as we know it,” she said. “This is what we pray for. “

Ruth graham reported from Dallas, Adam Liptak from Washington and J. David Goodman from Houston. Edgar Sandoval contributed to San Antonio reporting, and Michael S. Schmidt from Washington.