By Lily Vining | Investigative Layout Assistant
On September 18th, The Washington Post published an op-ed by San Antonio Doctor Alan Braid who wrote that he violated the law— and no, he is not sorry.
In his article, Braid describes the work he has done over the past 45 years as an OB/GYN in Texas. Throughout his extensive career, he has helped countless women, usually young adults without the financial or familial stability to care for a child, receive abortion care. As Texas legislative actions began to tighten restrictions on these services, he and his staff worked diligently to continue providing women with the opportunity to practice their constitutional right to choose, as enshrined in the landmark Roe v. Wade ruling over 40 years prior. However, under a new law threatening to overturn this ruling, Braid writes that it feels like “1972 all over again.” Aware of the legal consequences that face his actions, Dr. Braid decided to provide the service so that “Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.” (The Washington Post, 2021)
The Texas Law in question, S.B. 8, bans all abortions after 6 weeks of pregnancy and makes no exceptions for pregnancies resulting from incest or rape. When the law entitles anyone other than “an officer or employee of a state or local governmental entity in this state” to file a civil suit against someone suspected of providing or aiding someone in obtaining an abortion after six weeks of pregnancy. Anyone who successfully brings about such a suit is entitled to receive at least $10,000 and have their legal charges covered. The state law effectively circumvents judicial review by putting civilians, rather than state officials, in charge of its enforcement. Attempts by pro-choice activists to overturn the law provided moot when U.S. Supreme Court ruled in a 5 to 4 decision not to temporarily block the law.
Anti-abortion groups are thrilled that the threat of the law would intimidate abortion providers into compliance. Since the law went into effect on September 1st, clinics and private physicians have halted their services beyond the six-week cutoff of cardiac activity. However, some pro-life activists “feared that the openness of the law — allowing anyone to file suit — could result in a first test case that was unfavorable to their cause.” according to the New York Times.
As anticipated, two lawsuits against Dr. Braid will test the law’s provisions. The two complaints, both filed by residents of states besides Texas, are representing themselves as pro se plaintiffs, a circumstance that NBC News calls the “worst-case scenario” for the courts. One Illinois man, Felipe N. Gomez, describes himself in his complaint as a “pro-choice plaintiff,” and says that he only seeks for “the Court to declare that the Act is unconstitutional and in violation of Roe v Wade” (The New York Times, 2021). Gomez aligns his views with the doctor and does not seek any payment from the suit. Another Arkansas man, “disbarred and disgraced” lawyer Oscar Stilley, does ask for $100,000 for his case, but as a test of the law, not on principle. As a previous practitioner of the law himself, Stilley expresses his discontent with Texas’s attempt to”insulate [S.B. 8] from a legal decision.” For his troubles, Stilley does still aim to collect his share under the law, stating that “I’m going to get an answer either way. If this is a free-for-all, and it’s $10,000, I want my $10,000” (NYT, 2021).
The first two tests of the Texas law may be exactly what pro-choice activists need to send the ruling to the higher court. The chaos of the first two tests of this law will demonstrate how it may be abused by future lawyer-less plaintiffs, which take up the time and patience of the state courts. In addition, the Federal court may decide that this law puts an unnecessary burden on the Constitution’s commerce clause, which puts the federal government in charge of interstate commerce— and in turn, lawsuits such as these. The misuse of the law angers anti-abortion leaders like John Seago, legislative director for Texas Right to Life, which lobbied for the new abortion law. “Both cases are self-serving legal stunts, abusing the cause of action created in the Texas Heartbeat Act for their own purposes” Seago remarks (NYT, 2021). On the other side, pro-choice activists celebrate the irritation resulting from current and future cases brought before the court, as an opportunity to overturn the highly restrictive law.
The current legal focus on S. B. 8 will only aid activists in the leadup to the Supreme Court’s hearing of Dobbs v. Jackson Women’s Health Organization on December 1st. The court will hear Mississippi’s appeal of the decision by the U.S Court of Appeals for the Fifth Circuit that threw out the state’s law banning abortion after 15 weeks of pregnancy. This will be the biggest test of the constitutionality of the pre-viability abortion ban since Roe v. Wade nearly 50 years ago.
In the meantime, tightening restrictions on abortion in states like Texas may make the procedures harder to come by, but will not stop brave doctors like Alan Braid from performing their duties. “I have daughters, granddaughters, and nieces. I believe abortion is an essential part of health care,” he wrote. “I have spent the past 50 years treating and helping patients. I can’t just sit back and watch us return to 1972.” (The Washington Post, 2021)
Lily Vining is a sophomore and is a layout assistant in the investigative section. Her email is: lvining@fandm.edu.