Two lawsuits that could test the constitutionality of the nation's most restrictive abortion ban were filed in Texas on Monday against a doctor who admitted to performing an abortion considered illegal under the new law.
The details of a civil suit by an Arkansas man -- a former lawyer and a convicted felon -- against Alan Braid, a physician in San Antonio, are as unusual as the law itself, which empowers private citizens to enforce the ban on abortion once cardiac activity has been detected, often as early as six weeks into pregnancy.
Braid stepped forward last week to say that he provided an abortion to a woman who was in the early stages of pregnancy but beyond the state's limit. Despite the risks, Braid said he acted because of his duty as a doctor and "because she has a fundamental right to receive this care."
"I fully understood that there could be legal consequences -- but I wanted to make sure that Texas didn't get away with its bid to prevent this blatantly unconstitutional law from being tested," he wrote in a column in The Washington Post.
On Monday, Oscar Stilley of Cedarville, near the Oklahoma border, said he decided to file a lawsuit to test the constitutionality of the Texas measure after reading a news report about Braid's declaration. An ex-lawyer convicted of tax fraud in 2010, Stilley said he is not personally opposed to abortion but believes the measure should be subject to judicial review.
"If the law is no good, why should we have to go through a long, drawn-out process to find out if it's garbage?" Stilley said in an interview after filing the complaint in state court in Bexar County, Texas, which encompasses San Antonio.
He called Texas' law an "end-run."
"I don't want doctors out there nervous and sitting there and quaking in their boots and saying, 'I can't do this because if this thing works out, then I'm going to be bankrupt,'" Stilley told The Associated Press.
He also noted that a successful lawsuit could result in an award in court of at least $10,000 for the plaintiff.
"If the state of Texas decided it's going to give a $10,000 bounty, why shouldn't I get that 10,000 bounty?" said Stilley, who is serving a 15-year federal sentence in home confinement.
A second lawsuit was filed by Felipe Gomez of Chicago, who asked a court in San Antonio to declare the new law unconstitutional. In his view, it is a form of government overreach. He said his lawsuit is a way to hold the Republicans who run Texas accountable, adding that their lax response to public health during the covid-19 pandemic conflicts with their crackdown on abortion rights.
"If Republicans are going to say nobody can tell you to get a shot, they shouldn't tell women what to do with their bodies either," Gomez said. "I think they should be consistent."
Gomez said he wasn't aware he could claim up to $10,000 in damages if he won his lawsuit. If he received money, Gomez said, he would probably donate it to an abortion-rights group or to the patients of the doctor he sued.
'ANY PERSON' CAN SUE
That the first legal challenge to the Texas law came from a convicted felon in Arkansas was somewhat surprising.
The anti-abortion group Texas Right to Life has been gathering anonymous tips about potential violations, but had not yet filed a lawsuit -- in part because abortion providers and clinics said they were complying with the law. The group has also been temporarily barred by state court decisions from suing certain providers in parts of the state.
Braid, whose clinics are represented by the Center for Reproductive Rights, declined to comment through the legal organization.
"S.B. 8 [Senate Bill 8, the Texas measure] says that 'any person' can sue over a violation, and we are starting to see that happen, including by out-of-state claimants," Marc Hearron, the group's senior counsel, said in a statement.
The Texas law took effect Sept. 1 and was designed to avoid judicial scrutiny by barring state officials -- who would typically be the target of lawsuits -- from enforcing the ban.
Instead, private citizens are charged with enforcing the ban by filing civil lawsuits against anyone who helps a woman get an abortion.
Abortion providers sued to try to stop the law, saying it is at odds with the U.S. Supreme Court's landmark Roe v. Wade decision guaranteeing a right to abortion before viability, usually around 22 to 24 weeks into pregnancy.
But the high court allowed the measure to stand while litigation continues.
In a 5-4 order, the court's conservative majority said the initial legal challenge raised "serious questions" about the constitutionality of the law. But the justices said the opponents, who sued state judges and court clerks, had not clearly shown that their lawsuit targeted the right people because government officials cannot enforce the law.
Separately, the Biden administration sued the state of Texas this month to block the law. A judge in Austin has set a hearing in that case for Oct. 1.
Until Braid's public admission, abortion clinics in Texas said they were abiding by the new restrictions and sending women to Oklahoma, Kansas and New Mexico to terminate their pregnancies. The law bars abortion at a time when many women do not yet realize they are pregnant. There are no exceptions in the law for rape, sexual abuse or incest.
Braid, who owns Alamo Women's Reproductive Services, said in his column that since the law took effect, he has discussed with patients how they might access abortion services in another state.
He advised one woman, who is 42 with four children, to travel to Oklahoma -- a nine-hour drive -- and offered to help with funding.
"She told me she couldn't go even if we flew her in a private jet," he wrote. "'Who's going to take care of my kids?' she asked me. 'What about my job? I can't miss work.'"
PROFESSORS WEIGH IN
The office of Republican Gov. Greg Abbott of Texas did not return a message seeking comment Monday.
Legal experts say Braid's admission is likely to set up another test of whether the law can stand after the Supreme Court allowed it to take effect.
"Being sued puts him in a position ... that he will be able to defend the action against him by saying the law is unconstitutional," said Carol Sanger, a law professor at Columbia University in New York City.
Joanna Grossman, a law professor at Southern Methodist University in Dallas, said that if a lawsuit against Braid reaches the Texas Supreme Court, it could decide whether the Legislature exceeded its power by allowing anyone to sue.
"The Texas Supreme Court will have the opportunity/obligation to say whether this approach -- which would not be limited to abortion -- is an acceptable way for the Legislature to pursue its goals," Grossman said.
Seth Chandler, a law professor at the University of Houston, said anyone suing would "have to persuade a Texas court that they have standing" despite not having personally suffered monetary or property damages.
"The only thing that might have happened is that they're offended by the fact that the abortion has been performed," he said. "But there are a lot of Supreme Court decisions saying that merely being offended is not a basis for a lawsuit, and there are Texas Supreme Court decisions saying we follow federal law on what's called standing."
Braid said in his Post column that he started his obstetrics and gynecology residency at a San Antonio hospital on July 1, 1972, when abortion was "effectively illegal in Texas." That year, he saw three teens die from illegal abortions, he wrote.
In 1973, the U.S. Supreme Court issued its Roe v. Wade ruling, which established a nationwide right to abortion at any point before a fetus can survive outside the womb.
"I have daughters, granddaughters and nieces," Braid wrote. "I believe abortion is an essential part of health care. I have spent the past 50 years treating and helping patients. I can't just sit back and watch us return to 1972."
MISSISSIPPI CASE SET
Separately, the Supreme Court will hear arguments Dec. 1 in Mississippi's bid to get the Roe decision overturned.
The court issued its arguments calendar for late November and early December on Monday.
Mississippi is asking the high court to uphold the state's ban on most abortions after the 15th week of pregnancy. The state has told the court it should overrule Roe and the 1992 decision in Planned Parenthood v. Casey that prevent states from banning abortion before viability.
Abortion providers have said Mississippi wants the court to "scuttle a half-century of precedent and invite states to ban abortion entirely."
Among the hundreds of legal briefs on both sides of the case is one filed Monday by more than 500 athletes in support of abortion rights, warning that stripping constitutional protection from abortion would be devastating to female athletes.
The Mississippi law was enacted in 2018 but blocked after a federal court challenge. The state's only abortion clinic, Jackson Women's Health Organization, remains open and offers abortions at up to 16 weeks of pregnancy. About 100 abortions a year are done after the 15th week, the providers said.
Information for this article was contributed byAnn E. Marimow of The Washington Post; and byJamie Stengle, Jake Bleiberg, Adam Kealoha Causey, Andrew DeMillo and Mark Sherman of The Associated Press.