Dr Alan Braid, an OBGYN based in San Antonio, broke the law on purpose. In an essay published in the Washington Post last Saturday, the doctor announced that he performed an abortion on a woman who was past six weeks of gestation, the limit imposed by Texas’s new abortion ban, SB8. The doctor wrote that he felt morally obliged to perform the procedure, his worldview shaped by his years in obstetric practice having conversations with patients who revealed that they were terminating their pregnancies because they couldn’t afford more kids, because they had been raped, because they were with abusive partners, or because they wanted to pursue other dreams.
He wrote, too, of beginning his practice in 1972, the year before Roe v Wade, the last time an outright ban on abortion was in effect in his state. “At the hospital that year, I saw three teenagers die from illegal abortions,” Dr Braid wrote. “One I will never forget. When she came into the ER, her vaginal cavity was packed with rags. She died a few days later from massive organ failure, caused by a septic infection.” Dr Braid reasoned that to avoid such needless deaths, he had a “duty of care” to the woman whose newly illegal abortion he performed.
He was promptly sued. Two complaints – both from men living out of state – were filed against Dr Braid on Monday morning. One, a rambling, weird document, comes from a convicted felon and disbarred former attorney named Oscar Stilley, who is serving a prison term on house arrest in Arkansas. That complaint, which Stilley seems 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, feels strongly that “if there’s money to be had, it’s going to go in Oscar’s pocket.”
The second lawsuit is from a man named Felipe Gomez of Illinois, another disbarred lawyer, who labels himself “pro-choice plaintiff”, and whose complaint asks only that SB8 be overturned. These test cases, strange and off-putting as they are, now represent the best chance for SB8 to be vacated, and for abortion rights to be returned to Texans – at least for now.
It didn’t have to be this way. When a conservative state passes an abortion ban – as they do with some regularity – state employees are usually tasked with enforcing the law, those employees are named as defendants in lawsuits brought by pro-choice groups, and the law is blocked from going into effect by courts that declare it unconstitutional before any real patients are denied abortion care. But Texas’s SB8 was designed to elide this normal process of judicial review, with a novel enforcement mechanism that bars state agents from acting to enforce the law. Instead, the law can only be enforced by private civil suits against people suspected of facilitating abortions – lawsuits, that is, like the ones filed by Stilley and Gomez.
This private enforcement mechanism is like a legal Rube Goldberg 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 confound lawsuits against the law’s constitutionality with procedural, rather than substantive, questions, and to guarantee that SB8 would go into effect. The device is transparent bid to circumvent the authority of the federal courts. But those same federal courts, by now warped by decades of anti-choice influence on the judicial nominations process, let it slide anyway. Judges on the fifth circuit court of appeals, and later on the supreme court, found that the procedural questions that were engineered by SB8 provided them a sufficient pretext to do what they wanted to do anyway: allow a state to outlaw abortion within its borders, and effectively end Roe.
And so, when the supreme court allowed SB8 to go into effect, it left the pro-choice movement with no choice. Pre-enforcement litigation failed on flimsy and artificial procedural grounds; what was needed was an illegal abortion, performed by someone willing to take on enormous personal risk, to create a test case. Only a deliberate legal violation would allow SB8 could be reviewed on the merits. This is where Dr Braid comes in. In addition to the enormous service he gave to the patient whose abortion he performed, he also did a service to the pro-choice movement, and to women statewide. He took on enormous personal liability so that the question of their right to an abortion could get a fair hearing.
Interestingly, the anti-choice movement doesn’t seem entirely happy that the lawsuits that enforce the abortion ban they championed are now actually arriving in Texas courts. John Sego, a legislative director of the anti-choice group Texas Right to Life, which supports SB8, expressed displeasure that the law is being enforced – well, exactly the way it was designed. He called the lawsuits “self-serving legal stunts”. Yet he also claimed that “Texas Right to Life is resolute in ensuring that [SB8] is fully enforced.” If Sego and other anti-choice groups want the law enforced, why do they oppose private citizens enforcing it, using the bill’s own remedy?
It might be that Sego and his anti-choice colleagues are embarrassed to have their interests represented by a plaintiff like Stilley, with his flamboyant feloniousness. Maybe they have realized that the bounty-hunting provision of the law is deeply unpopular, and that the suits are terrible PR for the anti-choice movement. At any rate, it is hard to take Sego seriously when he says, “We believe Braid published his op-ed intending to attract imprudent lawsuits, but none came from the pro-life movement.” In fact Sego’s group is legally not able to file bounty-hunting lawsuits to enforce SB8: although the group established an “abortion snitch” website that seemed designed to solicit tips about possible defendants in SB8 enforcement suits against those who facilitate abortions, a judge issued a restraining order preventing Texas Right to Life from filing them.
But perhaps the real reason Sego is displeased with the lawsuits against Braid is that SB8’s bounty hunting enforcement system was only one small part of the anti-choice vision for the law. The real way that abortions would become inaccessible in Texas under SB8 wasn’t that people would sue; it was that abortion providers, faced with the prospect of being bankrupted by lawsuits, would preemptively stop performing abortions. It was an attempt to do by intimidation what the anti-choice movement was not confident they could do by law: strip Texan women of their constitutional right to control their own bodies and lives. And, mostly, this gambit has worked. In the more than three weeks since SB8 went into effect, legal abortions after six weeks have come to a halt in Texas. Fearing liability, clinics are turning pregnant patients away. So far, only Dr Braid has called the anti-choice movement’s bluff.