SAN ANTONIO – Since Texas enacted the nation’s tightest restriction on abortion earlier this month, a chorus of legal challenges have been launched to strike down the law.
The challenges target both the state and a San Antonio doctor who admitted to violating the law. They come from a range of sources: the U.S. Department of Justice, a disbarred Illinois attorney who calls himself a “pro-choice plaintiff” and an Arkansas man convicted of tax fraud.
“The way SB 8 is written, it opens the door to all kinds of litigation for people who don’t really have a proper claim before the court,” attorney Deanna Whitley said.
Whitley has been an attorney for almost 30 years and has argued cases concerning new laws.
“The lawsuits filed will proceed like any other,” Whitely said.
Formerly known as Senate Bill 8, the law bans abortions after six weeks, before most women know they are pregnant, even for victims of rape and incest. Previously, Texas allowed the procedure up to 20 weeks.
The other pillar of the law — what makes it novel in the decades-long battle over Roe v. Wade — is that it allows private U.S. citizens, even outside Texas, to sue anyone in this state who performs an abortion or assists a woman in obtaining an abortion, after six weeks.
“I think we can see this as the most significant challenge to Roe since Roe was decided,” Whitley said.
Opponents say the law creates a bounty for abortion doctors and women’s reproductive health care workers and could bankrupt clinics. Supporters say the law empowers citizens to enforce the law (the law actually prohibits state and local officials and law enforcement from enforcing the ban).
The law also prevents defendants from recouping attorney fees from the person who filed suit — general practice in most civil litigation — minimizing risk to the plaintiff, according to the Texas Tribune.
Shortly after Gov. Greg Abbott signed the restrictions into law, the U.S. Supreme Court refused to block the law from going into effect but did not rule on its constitutionality.
The U.S. Justice Department filed a request for a temporary restraining order (TRO) as abortion providers in the state said they canceled most of their appointments.
In response to the DOJ filing, U.S. District Judge Robert L. Pitman scheduled a hearing for Oct. 1 to consider temporarily blocking SB 8 while its constitutionality is tested by the courts.
Suits from citizens
One way the law’s constitutionality will be tested is through at least two lawsuits filed Monday against a longtime San Antonio doctor who openly admitted to violating the new abortion restrictions in a Washington Post column this weekend.
“I understand that by providing an abortion beyond the new legal limit, I am taking a personal risk, but it’s something I believe in strongly,” Braid wrote. “I have daughters, granddaughters and nieces. I believe abortion is an essential part of health care. ... I can’t just sit back and watch us return to 1972.”
These are the first lawsuits to be filed under the new law. While the suits themselves are brief, the motivation behind them is more complex.
One suit, filed by Felipe N. Gomez of Illinois, asks a judge to rule that the new state law is constitutional and violates Roe v. Wade, which established abortion as a constitutionally protected medical procedure decades ago. Gomez does not seek any damages and lists himself as a “pro-choice plaintiff.” He is appealing his disbarment to the Illinois Supreme Court, but has already lost at least one appeal.
The second lawsuit was filed by Oscar Stilley, who described himself as a “disbarred and disgraced former Arkansas lawyer.” Stilley spoke to the Tribune about his motivation:
Stilley said in an interview that he’s not personally opposed to abortion, and he doesn’t think the law is necessarily a good one. However, he said he wants the $10,000 and will seek advice from anti-abortion organizations on how to best argue his case. If the law is struck down, he’ll count it as a win to find out if the lawsuit has merit or not.
“I’m not gonna let this thing fester so doctors are afraid. I want a prompt and honest decision,” he said. “Let’s find out if this thing is the law... if it is, let’s live by it, if not let’s get it struck down.”
Stilley said he expects to see this case move to an appellate court and possibly the U.S. Supreme Court. Braid and Gomez did not immediately respond to requests for an interview.
ProLife Texas has also responded to the lawsuits calling the “bogus.”
“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.” -- ProLife Texas Statement
A judge has yet to schedule a hearing on the two lawsuits but KSAT will continue to follow them and provide updates.
U.S. Supreme Cout and Roe v. Wade
Meanwhile, the landmark Roe v. Wade case is being challenged more than ever.
While the U.S. Supreme Court declined to consider an emergency stay filed by abortion providers in Texas over the new state law, they will take up a Mississippi case later this year.
On Dec. 1, the high court will hear arguments in the Dobbs v. Jackson Women’s Health Organization case that has the potential to overturn or solidify Roe v. Wade’s protections for abortions.