The lawyers — one from Illinois, the other from Arkansas — have sued a Texas abortion physician, Alan Braid, who said in an opinion article that he violated the fledgling Texas Heartbeat Act days after it took effect.
The law, passed during the regular legislative session as Senate Bill (SB) 8, bans abortions once a pulse can be detected in the womb.
“For me, it is 1972 all over again,” Braid wrote.
“And that is why, on the morning of September 6, I provided an abortion to a woman who, though still in her first trimester, was beyond the state’s new limit. I acted because I had a duty of care to this patient, as I do for all patients, and because she has a fundamental right to receive this care.”
One of the claimants, a disbarred Chicago attorney named Felipe Gomez, plainly stated in his lawsuit that he hopes to overturn the Heartbeat Act through litigation. Gomez seeks a court declaration that SB 8 is unconstitutional and asks for none of the minimum $10,000 damages that defendants sued under the law must pay to successful plaintiffs.
The other claimant, an Arkansas attorney named Oscar Stilley currently serving a 15-year house arrest sentence for tax evasion, is not quite so generous. Stilley, who spends a good share of his lawsuit claiming his tax conviction is fraudulent, seeks $100,000 in damages and attorneys’ fees.
“On information and belief, Defendant is kind and patient and helpful toward bastards, but ideologically opposed to forcing any woman to produce another bastard against her own free will,” Stilley writes of Braid.
Stilley, who also opposes the Heartbeat Act, goes on to claim he called Braid yesterday and unsuccessfully tried to convince him to stop performing abortions contrary to the law.
The lawsuits could put Braid in a unique position to challenge the law that its other opponents, even industry giants like Planned Parenthood, have not yet enjoyed. So far, the abortion providers that have sued the state of Texas to halt the law have struggled to show how an injunction against the government would stop the private lawsuits that SB 8 authorizes.
To comply with court precedent — namely Roe v. Wade, which established a right to abortion, and Planned Parenthood v. Casey, which ruled that governments cannot unduly burden access to abortion — the Heartbeat Act does not let the government or any government official stop or punish post-heartbeat abortions. Instead, it authorizes Texans to sue anybody, other than the mother herself, that performs or aids a post-heartbeat abortion. A father that conceived the aborted child by rape or incest cannot sue.
Defendants that lose these cases must pay the plaintiffs at least $10,000 in damages for each illegal abortion that the defendant performed or aided.
The creative structure of the law met with an equally creative lawsuit by several abortion providers, doctors, and counselors. The plaintiffs sued a putative class of every state judge and clerk in Texas along with several state agencies and lone citizen Mark Lee Dickson, a pro-life activist.
When the defendants appealed to the Fifth Circuit Court of Appeals, the abortion providers made an emergency petition to the U.S. Supreme Court to intervene, but the court declined.
In their collected opinions, the Supreme Court decided not to take up the attemped class-action case since the court could not resolve an actual controversy between the abortion providers and the state.
“[F]ederal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” the collected opinions of the court explained.
“The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.”
The decision, though small, mirrors a similar court proceeding that arose from a local abortion ban in Lubbock. The city voted overwhelmingly to join the “Sanctuary Cities for the Unborn” initiative, passing a law that allowed civil lawsuits against anyone besides the mother herself that performed or aided an abortion in city limits. When Planned Parenthood sued Lubbock, the case was dismissed for lack of an actual controversy between the facility and the city.
The judge that dismissed the case cited the case Okpalobi v. Foster in his reasoning for dismissal. Okpalobi dealt with a Louisiana law that let women sue their abortion providers, a law that the Fifth Circuit upheld in a suit between abortion providers and the state. The Fifth Circuit dismissed the suit for lack of standing since whatever injuries the providers suffered from lawsuits could not be directly redressed by action against the state.
However, if Braid suffers real injury from an enforcement lawsuit under the Heartbeat Act, it may give him the standing that has eluded other opponents.
Texas Right to Life, a pro-life lobbying group that helped shape the law and has encouraged Texans to participate in enforcement suits, distanced itself from the new lawsuits.
“The first plaintiff, Felipe Gomez, is a disbarred pro-abortion attorney attacking an abortionist with the goal of declaring the law to be unconstitutional. The second plaintiff, Oscar Stilley, is currently under home confinement and used his lawsuit to air grievances about his felony conviction,” the group stated in a press release.
“Neither of these lawsuits are valid attempts to save innocent human lives. Both cases are self-serving legal stunts, abusing the cause of action created in the Texas Heartbeat Act for their own purposes. We believe Braid published his op-ed intending to attract imprudent lawsuits, but none came from the pro-life movement.”
The group was already leery of Braid’s open admission, questioning whether it was a “legal stunt” or an enforceable violation.
Notably, Braid joined several abortion providers in an unsuccessful lawsuit to stop Texas’ ban on dismemberment abortions. The Fifth Circuit declared that law constitutional last month.
Since cardiac activity typically develops about six weeks into a pregnancy, Braid said SB 8 has effectively decimated abortions at his clinics.
“It shut down about 80 percent of the abortion services we provide,” Braid wrote.
The Biden administration also recently sued the state of Texas over SB 8.
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