Legal experts said two lawsuits filed this week might test the constitutionality of the Texas law more than federal challenges by abortion providers and the Justice Department.,
Lawsuits Filed Against Texas Doctor Could Be Best Tests of Abortion Law
Legal experts said two lawsuits filed this week might test the constitutionality of the Texas law more than federal challenges by abortion providers and the Justice Department.
Protesters outside the Supreme Court opposed and supported Texas’ abortion law.Credit…Kenny Holston for The New York Times
DALLAS — When the United States’ most restrictive abortion law went into effect in Texas on Sept. 1, it worked exactly as intended: It effectively stopped all abortions in the second-most populous state.
But its very ingenuity — that ordinary citizens, and not state officials, enforce it — has begun to unleash lawsuits that are out of the control of the anti-abortion movement that fought for the law.
On Monday, a man in Arkansas and another in Illinois, both disbarred lawyers with no apparent association with anti-abortion activists, filed separate suits against a San Antonio doctor who publicly wrote about performing an abortion. The suits appear to be the first legal actions taken under the law, known as Senate Bill 8, which deputizes private citizens, no matter where they live, to sue doctors or anyone else who “aids and abets” an abortion performed after a fetus’s cardiac activity is detected.
Legal experts said the lawsuits filed in state court might be the most likely way to definitively resolve the constitutionality of the Texas law, which has withstood legal tests. Two more sweeping challenges filed in federal court, brought by abortion providers and the Justice Department, raise difficult procedural questions.
Anti-abortion leaders in Texas said they never expected many people to actually file lawsuits, thinking the process would be too costly and onerous.
“These out-of-state suits are not what the bill is intended for,” said Chelsey Youman, the Texas state director and national legislative adviser for Human Coalition, an anti-abortion group that said it had no plans to file a lawsuit against the physician, Dr. Alan Braid, or to encourage others to do so.
“The goal is to save as many lives as possible, and the law is working,” Ms. Youman said, adding that the notion behind the law was that the mere threat of liability would be so intimidating that providers would simply comply.
Early on, abortion rights activists warned that the law would lead to a Wild West, in which vigilantes would sue anyone associated with an abortion, from ride-share drivers to relatives of pregnant women, in order to score a payout. The law’s unique enforcement mechanism, designed to circumvent judicial review, invites private individuals to sue anyone involved with the procedure other than the pregnant woman. Should plaintiffs win, they would receive $10,000 and have their legal fees covered.
Protesting the abortion law in Austin, Texas.Credit…Jordan Vonderhaar/Getty Images
All was quiet until Saturday, when Dr. Braid wrote in The Washington Post that he had performed an abortion on Sept. 6 to a woman who was “beyond the state’s new limit.” He knew he was inviting lawsuits, he wrote, and “taking a personal risk, but it’s something I believe in strongly.”
Marc Hearron, senior counsel for the Center for Reproductive Rights, an abortion rights group that represents Dr. Braid, said the doctor performed an ultrasound that detected cardiac activity before performing an abortion, meaning the procedure did in fact violate the new state law.
The two lawsuits allow Dr. Braid, and those representing him, to assert the argument that the law is unconstitutional under both Roe v. Wade, which granted women the constitutional right to an abortion, and Planned Parenthood v. Casey, which upheld it. If that defense is accepted on appeal, legal experts said, the cases could yield precedents effectively invalidating the Texas law — a significant loss for the anti-abortion movement.
From the anti-abortion movement’s perspective, neither of the two men who filed suits this week is an ideal plaintiff. The Arkansas man, Oscar Stilley, who described himself in his suit as a “disbarred and disgraced” lawyer, said he was “not pro-life” and merely wanted to “vindicate” the law. The Illinois man, Felipe N. Gomez, described himself in his complaint as a “pro-choice plaintiff.”
Ms. Youman speculated that the lawsuits were “plants,” and she portrayed Dr. Braid’s opinion essay as an attempt to bait a frivolous suit that would challenge the law’s constitutionality in court.
Mr. Gomez, 61, said in an interview that he had decided to file suit 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 proponents of Texas’ new abortion restrictions supported mandates for pregnant women while also objecting to government mandates for vaccines to fight the coronavirus pandemic. (Mr. Gomez said he personally harbored a lifelong dislike of needles and did not support vaccine mandates.)
He also said he filed the suit as part of what he called a “public interest law hobby” that he hoped to pursue in his coming retirement. Mr. Gomez was suspended from practicing law in Illinois because of emails he had sent to other lawyers; he is currently in litigation over the matter, he said.
Until now, the Wild West scene that abortion rights activists had warned of has not materialized. After the law’s passage — which the anti-abortion movement hailed as a clear-cut triumph — clinics across the state immediately said they would comply; some reported that they had temporarily stopped providing any abortions at all.
That appeared 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 went into effect, “we don’t have any evidence that a violation has occurred,” he said, adding that the group estimated that “over 2,000 lives have been saved so far by the Texas Heartbeat Act.”
Anti-abortion protesters near the Texas Capitol in May.Credit…Sergio Flores/Getty Images
The group, which lobbied for passage of the new law, set up a whistle-blower site for people to submit anonymous tips on illegal abortions. It received a flood of fake tips, and the group was working on “extra security” after switching servers before it would put the site back up, Mr. Seago said.
Mr. Seago said the anti-abortion movement in the state was united in its wariness of Mr. Braid’s vague but high-profile announcement of his violation. “Notice he doesn’t say, ‘I’m open for business, anyone who wants an abortion, here’s my address, schedule a visit,'” he said. “It’s a lot more calculated than that.”
Understand the Texas Abortion Law
The most restrictive in the country. The Texas abortion law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in the state. It prohibits most abortions after about six weeks of preganancy and makes no exceptions for pregnancies resulting from incest or rape.
Patients cannot be sued. The law allows doctors, staff and even a patient’s Uber driver to become potential defendants.
The Supreme Court’s decision. The Supreme Court refused just before midnight on Wednesday to block a Texas law prohibiting most abortions, less than a day after it took effect and became the most restrictive abortion measure in the nation. The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s three liberal members in dissent.
The lawsuits were an entirely predictable result of S.B. 8’s construction, said Mr. Hearron of the Center for Reproductive Rights, because the law allows anyone to “insert themselves into a health care decision between a patient and her doctor.”
When the U.S. Supreme Court turned down a request by a group of abortion providers, including the Center for Reproductive Rights, to block the law in an unsigned order on Sept. 1, citing “complex and novel” procedural issues, the five justices in the majority wrote that their ruling was “not based on any conclusion about the constitutionality of Texas’ law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
The proper way for abortion providers to challenge the law, the majority suggested, was to get sued and raise the unconstitutionality of the law as a defense. Now that it has been set in motion, a ruling from a state trial judge in one of the new cases could be appealed through the state court system in Texas and eventually reach the U.S. Supreme Court.
“That is the nicest, cleanest way for it to get there,” Paul M. Smith, a law professor at Georgetown, said at a briefing presented by its Supreme Court Institute on Tuesday.
The Supreme Court is also scheduled to hear arguments on Dec. 1 in a challenge to Mississippi’s ban on most abortions after 15 weeks. In that case, it has been asked to overrule Roe v. Wade, the 1973 decision establishing a constitutional right to abortion. If it does, the constitutional objection to the Texas law would presumably be rendered moot.
Last week, Gov. Greg Abbott of Texas signed a separate bill that outlaws providing abortion-inducing drugs after seven weeks of pregnancy. That bill is set to go into effect in December.
Outside Alamo Women’s Reproductive Services, the abortion clinic in San Antonio where Dr. Braid works, an anti-abortion activist, Alejandra Gonzalez, paced in hopes of intercepting women on their way inside. “We are praying for you. God bless you!” Ms. Gonzalez, 18, shouted as a woman walked toward her car.
The new law, she said, has injected hope into the anti-abortion movement. “Our goal is to end abortion as we know it,” she said. “That’s what we are praying for.”
Reporting was contributed by Edgar Sandoval from San Antonio, J. David Goodman from Houston, and Michael S. Schmidt and Adam Liptak from Washington.