Lawsuits filed against Texas doctor may be best test for abortion law

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DALLAS — When the United States’ strictest abortion law went into effect in Texas on September 1, it worked exactly as intended: effectively stopping all abortions in the second-most populous state.

But his very ingenuity—that ordinary citizens, not state officials, enforce it—has begun to unleash lawsuits beyond the control of the anti-abortion movement that fought for the law.

On Monday, a man in Arkansas and another in Illinois, both suspended attorneys with no apparent association with anti-abortion activists, filed separate lawsuits against a San Antonio doctor who wrote publicly about performing an abortion. The lawsuits appear to be the first legal action taken under the bill known as Senate Bill 8, which replaces private individuals, wherever they live, from suing doctors or anyone else for abortion after a myocardial infarction of a fetus. “helps and encourages”. activity is detected.

Legal experts said the lawsuits filed in state court are the most likely way to definitively resolve the constitutionality of the Texas law, which has passed legal tests. Two other sweeping challenges filed in federal court, filed by abortion providers and the Department of Justice, raise difficult procedural questions.

Texas anti-abortion leaders said they never expected many people to actually file lawsuits, believing the process would be too expensive and burdensome.

“These out-of-state lawsuits are not what the bill is intended for,” said Chelsey Youman, the Texas state director and national legislative adviser to Human Coalition, an anti-abortion group that said it had no plans to file a lawsuit against the doctor, dr. Alan Braid, or to 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 threat of liability alone would be so intimidating that providers would just stick to it.

Early on, abortion rights activists warned that the law would lead to a Wild West, in which vigilantes would sue anyone involved in an abortion, from passenger passengers to relatives of pregnant women, to get a payout. The law’s unique enforcement mechanism, designed to evade judicial review, invites individuals to sue anyone involved in the proceeding, except the pregnant woman. If plaintiffs win, they would receive $10,000 and have their legal costs covered.

All was quiet until Saturday, when Dr. Braid wrote in The Washington Post that he had an abortion on Sept. 6 on a woman who was “outside the state’s new limit.” He knew he was inviting lawsuits, he wrote, and “taking a personal risk, but it’s something I strongly believe in.”

Marc Hearron, senior advisor to the Center for Reproductive Rights, an abortion rights group that Dr. Braid said the doctor performed an ultrasound that detected heart activity before performing an abortion, meaning the procedure effectively violated new state law.

The two lawsuits claim Dr. Braid and those representing him are able to defend the argument that the law is unconstitutional under both Roe v. Wade, which granted women the constitutional right to abortion, and Planned Parenthood v. Casey, which upheld it. If that defense is upheld on appeal, legal experts said, the cases could set precedents that effectively invalidate Texas law — a significant loss to the anti-abortion movement.

From the perspective of the anti-abortion movement, neither of the two men who filed a lawsuit this week is an ideal plaintiff. Arkansas man Oscar Stilley, who described himself in his lawsuit as a “suspended and disgraced” attorney, said he was “not pro-life” and just wanted to “justify” 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 painted Dr. Braid as an attempt to file a frivolous lawsuit that would challenge the constitutionality of the law in court.

Mr Gomez, 61, said in an interview that he had decided to file a lawsuit to challenge what he saw as government interference in private health care decisions. Describing himself as “preferred” on a range of medical issues, he questioned why some proponents of the new Texas 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 aversion to needles and did not support vaccine mandates.)

He also said he was filing the charges as part of what he called a “hobby of the public interest” that he hoped to pursue in his upcoming retirement. Mr. Gomez was suspended from practicing law in Illinois over emails he sent to other attorneys; he is currently in a lawsuit over the matter, he said.

So far, the Wild West scene that abortion rights activists had warned about has not materialized. After the bill passed — which the anti-abortion movement hailed as a clear triumph — clinics across the state immediately said they would comply; some reported that they had temporarily stopped giving abortions altogether.

That seemed 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 have no evidence whatsoever that a violation has occurred,” he said, adding that the group estimated that “more than 2,000 lives have been saved by the Texas Heartbeat Act so far.” .”

The group, which lobbied for the adoption of the new law, set up a whistleblower site where people could submit anonymous tips about illegal abortions. It received a deluge of fake tips and the group was working on “extra security” after switching servers before getting the site back up and running, Mr Seago said.

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

The lawsuits were a completely predictable result of the construction of SB 8, said Mr. Hearron of the Center for Reproductive Rights, because the law allows anyone “to interfere in a health care decision between a patient and her doctor.”

When the US Supreme Court rejected a request from a group of abortion providers, including the Center for Reproductive Rights, to block the law an unsigned order on Sept. 1, citing “complex and new” procedural issues, the five majority judges wrote that their ruling “was not based on any conclusion about the constitutionality of Texas law, nor in any way other procedurally correct challenges.” before Texas law, including in Texas state courts.”

The proper way for abortion providers to challenge the law, the majority suggested, was to sue and put forward the unconstitutionality of the law as a defense. Now that it’s in motion, a state judge’s ruling in one of the new cases can be appealed through the state court system in Texas and eventually reach the U.S. Supreme Court.

“That’s the nicest and cleanest way to get there,” said Paul M. Smith, a law professor at Georgetown, during a briefing presented by his Institute of the Supreme Court 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, you have been asked to overrule Roe v. Wade, the 1973 decision establishing a constitutional right to abortion. If so, the constitutional objection to the Texas law would presumably be dismissed.

Last week, Texas Governor Greg Abbott signed a separate bill banning the provision of abortion-inducing drugs after seven weeks of pregnancy. The bill is due to come into effect in December.

Outside of Alamo Women’s Reproductive Services, the abortion clinic in San Antonio where Dr. Braid works, an anti-abortion activist, Alejandra Gonzalez, paced, hoping to intercept women on their way in. “We pray for you. God bless you!” Ms. Gonzalez, 18, screamed as a woman walked to her car.

The new law, she said, has given the anti-abortion movement hope. “Our goal is to end abortion as we know it,” she said. “That’s what we pray for.”

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

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