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Dr Alan Braid, an OBGYN based in San Antonio, willfully broke the law. In an essay published in the Washington Post last Saturday, the doctor announced that he had performed an abortion on a woman who was past six weeks gestation, the limit imposed by Texas’ new abortion ban, SB8. The doctor wrote that he felt morally obligated to perform the procedure, his worldview shaped by years of obstetric practice having conversations with patients who revealed they were terminating their pregnancies because they did not. could not afford to have more children, because they had been raped, because they were with violent partners, or because they wanted to pursue other dreams.
He also wrote that he started his practice in 1972, the year before Roe v Wade, the last time an outright abortion ban was in effect in his state. “At the hospital that year, I saw three teenagers die of illegal abortions,” wrote Dr Braid. “One that I will never forget. When she arrived in the emergency room, her vaginal cavity was full of rags. She died a few days later from massive organ failure caused by a septic infection. Dr Braid felt that in order to avoid such unnecessary deaths, he owed a “duty of care” to the woman whose illegal abortion he had recently performed.
He was immediately prosecuted. Two complaints – both from men living out of state – were filed against Dr Braid on Monday morning. One, a rambling and bizarre document, comes from a convicted felon and former barred lawyer named Oscar Stilley, who is serving a prison sentence under house arrest in Arkansas. This complaint, which Stilley appears to have written himself, makes multiple references to Dr. Braid’s conduct regarding “bastards” and his supposed belief in a god referred to by the Hebrew name “Elohim”. Stilley, who has said he does not personally oppose abortion, is convinced that “if there is money to be had, it will go into Oscar’s pocket.”
The second lawsuit is that of a man named Felipe Gomez of Illinois, another lawyer struck off the bar, who calls himself a “pro-choice plaintiff,” and whose complaint calls only for SB8 to be quashed. These test cases, as weird and off-putting as they are, now represent the best chance that SB8 will be quashed and abortion rights returned to Texans – at least for now.
It didn’t have to be that way. When a conservative state passes an abortion ban – as they do with some regularity – state employees are typically tasked with upholding the law, these employees are named accused in lawsuits brought by pro groups. -choice, and the law is blocked from coming into force by courts declaring it unconstitutional before real patients are denied abortion care. But the Texas SB8 was designed to escape this normal process of judicial review, with a new enforcement mechanism that bars state officials from acting to enforce the law. Instead, the law can only be enforced through private civil suits against people suspected of facilitating abortions – suits, that is, like those brought by Stilley and Gomez.
This private enforcement mechanism is like a Rube Goldberg legal machine built into SB8, creating a clever way to evade courts recognizing the bill’s abortion ban as unconstitutional. Created by an insidious Conservative lawyer named Jonathan Mitchell, the loophole was designed to confuse prosecutions against the constitutionality of the law with procedural rather than substantive issues, and to ensure that SB8 would come into effect. The device is a transparent offer to bypass the authority of the federal courts. But those same federal courts, now warped by decades of anti-choice influence over the judicial appointment process, still gave up. Justices of the Fifth Court of Appeal, and later the Supreme Court, felt that the procedural issues developed by SB8 provided them with a sufficient pretext to do what they wanted to do anyway: allow a state to ‘ban abortion within its borders, and effectively end Roe.
And so, when the Supreme Court authorized the entry into force of SB8, it left the pro-choice movement no choice. The pre-execution litigation failed for fragile and artificial procedural reasons; what was needed was an illegal abortion, performed by someone willing to take a huge personal risk, to create a test case. Only a deliberate legal violation would allow SB8 to be reconsidered on the merits. This is where Dr Braid comes in. In addition to the tremendous service he rendered to the patient whose abortion he performed, he also served the pro-choice movement and women across the state. He has taken on enormous personal responsibility so that the issue of their right to an abortion can be heard fairly.
Interestingly, the anti-choice movement doesn’t seem entirely happy that the lawsuits that enforce the abortion ban they are defending are now coming to court in Texas. John Sego, chief executive of the anti-choice group Texas Right to Life, which backs SB8, has expressed unhappiness with the application of the law – well, exactly the way it was designed. He called the lawsuits “selfish legal stunts.” Yet he also asserted that “Texas Right to Life is determined to ensure that [SB8] is fully implemented. If Sego and other anti-choice groups want the law enforced, why are they opposed to private citizens enforcing it, using the bill’s own remedy?
Sego and his anti-choice colleagues might be embarrassed to have their interests represented by a plaintiff like Stilley, with his blazing crime. Perhaps they have realized that the Bounty Hunting Law provision is deeply unpopular and that the lawsuits are terrible public relations for the anti-choice movement. In any case, it’s hard to take Sego seriously when he says, “We think Braid put out his op-ed with the intention of attracting reckless lawsuits, but none of them came from the pro-life movement. In fact, Sego’s group is not legally in a position to sue for bounty hunting to enforce SB8: although the group did create an “abortion snitch” website that appeared to be designed to solicit money. Advice on possible defendants in SB8 enforcement lawsuits against those who facilitate abortions, a judge has issued a restraining order preventing Texas Right to Life from filing them.
But perhaps the real reason Sego is unhappy with the lawsuits against Braid is that SB8’s bounty hunt enforcement system was only a small part of the law’s anti-choice view. The real way abortions would become inaccessible in Texas under SB8 was not that people would sue; it was that abortion providers, faced with the prospect of being bankrupted by lawsuits, would preventively stop performing abortions. It was an attempt to do through intimidation what the anti-choice movement was unsure it could do by law: deprive Texan women of their constitutional right to control their own bodies and lives. And, above all, this bet worked. In the three weeks since SB8 took effect, legal abortions after six weeks have ceased in Texas. Fearing their responsibility, the clinics refuse pregnant patients. So far, only Dr Braid has called the bluff the anti-choice movement.
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