The Endless Complexities of a Simple Abortion Lawsuit

(A Rigorous Examination of the Texas Heartbeat Law)

By: Jessie Dromsky-Reed

Oscar Stilley, a disbarred, former lawyer, serving a 15-year home-confinement sentence in Arkansas for tax evasion and conspiracy, filed the first lawsuit under Texas’s new Heartbeat Law against Texas physician Alan Braid, M.D.

Texas Governor Greg Abbott signed the Heartbeat Law on May 19, 2021. It would take effect in the state of Texas on September 1, 2021.

The Heartbeat Law prohibits physicians from knowingly performing or inducing an abortion on a pregnant woman if they can detect a fetal heartbeat, which the law defines as “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.” Usually, the fetal heartbeat can be detected by a sonogram in the first six to eight weeks of a pregnancy.

During its signing ceremony, Governor Abbott defended the law by saying, “Our Creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion. In Texas, we work to save those lives.” Governor Abbott stressed that this law was created by a bipartisan legislature and “ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion”. He finished his speech by thanking all those in the legislature who “stand for life”, as well as the “pro-life groups…for everything they do to cultivate a culture of life in Texas.”

Physician Alan Braid, M.D. admitted to performing an abortion in violation of the Heartbeat Law in his op-ed for the Washington Post. Braid graduated from the University of Texas Medical School in 1972, one year before the Supreme Court ruled in Roe v. Wade, and has been practicing as an OB- GYN in Texas for 45 years.

Roe v. Wade declared that the right to privacy granted to all U.S. citizens in the Ninth Amendment “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” What a woman does or does not do to her body is a private matter: if she feels it is necessary to get an abortion, the government cannot stop her.

In his op-ed, Braid emphasizes that, in medical school (in Texas in the 1970s), “we’d been taught that abortion was an integral part of women’s health care.” It was in an effort to protect this integral part of women’s health care and women’s right to privacy, that, on September 6, 2021, Braid performed an abortion on a woman who, though still in her first trimester, was more than six weeks along.

Initially, Braid’s op-ed seemed to invite an open-and-shut case under the Heartbeat Law, pending a private citizen utilized the law and filed a lawsuit against Braid.

The Heartbeat Law, unlike previous abortion laws, deputizes private citizens and gives them authority to file “private civil actions” (aka lawsuits) against physicians who perform or induce abortions, or anyone who aids or abets a woman seeking an abortion, such as a taxi driver or someone paying for the procedure. Police officers, district attorneys, and other government officials who may want to prosecute someone for performing or aiding an abortion must file lawsuits as private citizens, not as employees of the government.

This nuance of the Heartbeat Law is what prevented the U.S. Supreme Court from ruling on the law’s constitutionality, and from halting its enforcement. The law appeared before the Supreme Court in the case Whole Woman’s Health et al. v. Jackson as part of the Court’s “shadow docket”, which the Court reserves for cases it believes need emergency action, such as those dealing with issues of life and death.

Under normal procedures, a case would have to undergo the full appeals process before reaching the U.S. Supreme Court, which can take months or even years. However, once a case has a preliminary ruling from a lower court, the losing side can ask the U.S. Supreme Court to order an emergency stay or injunction, and thereby preserve “the status quo as it existed before the lower court’s ruling.” In the case of Whole Woman’s Health et al. v. Jackson, that status quo would be legal abortions in Texas beyond six weeks.

Whole Woman’s Health et al. v. Jackson was filed by a coalition of abortion providers, their patients, clinic staff, abortion funds, practical support networks, and clergy members in Texas against Texas Judge Austin Reeve Jackson, the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, the attorney general of the state of Texas, and Mark Lee Dickson, the director of Right to Life East Texas. The Fifth Circuit Court of Appeals in Texas halted all the case’s proceedings, including canceling the preliminary hearings. Thus, the coalition filed an emergency request with the U.S. Supreme Court on August 30, 2021, asking the Court to block the law before it took effect the next day.

The Supreme Court deliberated privately on Whole Woman’s Health et al. v. Jackson on September 1, 2021, and just before midnight on the same day, the Court released its ruling: 5 to 4 against the injunction, meaning that the Heartbeat Law could continue to be enforced and private citizens could continue filing lawsuits against abortion providers.

In the majority opinion, Justice Samuel Alito stated that the Heartbeat Law presents “complex and novel” issues. Because “the State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly,” it is unclear if “the Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.” The law’s enforcement power resides with private citizens, rather than the government, so until a case appears before the Supreme Court with a private citizen as the defendant rather than entities of the Texas government (Judge Jackson, the Texas Medical Board, etc.), the Court will not issue the requested injunction, or rule on the law’s constitutionality.

Chief Justice John Roberts dissented, explaining that the deputization of private citizens under the Heartbeat Law protects “the State from responsibility for implementing and enforcing the regulatory regime.” Justice Stephen Beyers, joined by Justices Elena Kagan and Sonya Sotomayor, sided with Justice Roberts, explaining that “the delegation [of private citizens enforcing the law] still threatens to invade a constitutional right, and…threatens imminent harm” to women seeking an abortion. The state of Texas has written the law in such a way as to protect its state government from prosecution rather than its citizens’ right to proper healthcare.

Alan Braid, M.D. states that he “fully understood that there could be legal consequences” of committing the “crime” of an abortion, as well as admitting to the act in his op-ed, but he “wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.” Braid’s public admission to performing an abortion means any private citizen would very likely win the case against the physician.

In addition, under the Heartbeat Law, if the private citizen wins the case against the offending physician or person who aids or abets a woman seeking an abortion, the private citizen will be awarded a minimum of $10,000 in damages plus legal fees paid for by the physician or Good Samaritan aiding the woman seeking an abortion.

So, the question that remains is:

With all the anti-abortion, pro-life sentiments that exist in Texas, championed by Governor Abbott in the law’s signing ceremony, in addition to the financial reward for winning a Heartbeat Law case, why is Arkansas convict, Oscar Stilley, one of the only ones filing a lawsuit against Alan Braid, M.D.?

The answer:

After Braid’s op-ed, prominent figures of the pro-life movement discouraged other pro-life supporters from filing a lawsuit against Braid.

Ed Whelan is the former deputy attorney general to President George W. Bush, and a legal commentator and Distinguished Senior fellow at the Ethics and Public Policy Center (EPPC) who holds the EPPC’s Antonin Scalia Chair in Constitutional Studies. In an article for the National Review, Whelan explains that “no one should sue Braid to give him the imagined test case that he is seeking” from the Supreme Court. Whelan understands that Braid is “baiting a case”: Braid has the intention of appealing any case against him until it reaches the U.S. Supreme Court, at which point, he hopes the Supreme Court will declare the law unconstitutional.

Instead, Whelan urges his readers to wait to file a lawsuit against Braid “until the Supreme Court has overruled Roe v. Wade and Planned Parenthood v. Casey.” Under the Heartbeat Law, there is a four-year statute of limitations on anyone who performs or induces an abortion, or aids or abets a woman seeking an abortion. Whelan is confident that the overturn of Roe v. Wade and Planned Parenthood v. Casey “ought to happen by the end of June 2022” (eight months from now), so pro-life supporters should wait until then to ensure their case against Braid is successful in the highest court.

The Heartbeat Law articulates its flagrant violations of the ruling established in Roe v. Wade and Planned Parenthood v. Casey by stating that “the State of Texas never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v. Wade…that prohibit and criminalize abortion unless the mother’s life is in danger.” If pro-life supporters are so sure that Roe v. Wade will be overturned next year, why not wait until then to announce the Heartbeat Law?

John Seago, the legislative director of Texas Right to Life, gave a phone interview to Bloomberg Law speaking about possible lawsuits against Braid. Seago stated “We [pro-life activists] definitely lose if a lawsuit is filed imprudently…That’s why you didn’t see us jump out there.” Seago does not want

pro-life supporters rushing into a lawsuit because he believes the Supreme Court will use a lawsuit or appeal filed or presented incorrectly to declare the Heartbeat Law unconstitutional, rather than weigh the law based on its moral and constitutional values.

Whelan and Seago fully subscribe to the pro-life beliefs antithetical to the laws established by Roe v. Wade, and protected by Planned Parenthood v. Casey. Ben Shapiro, a popular conservative political commentator articulated these beliefs in his podcast: “If you are a baby in the womb, you don’t get to be killed just because you are a baby in the womb. You’re an independent human life. You’re protected by the Constitution of the United States.”

While Oscar Stilley does not overtly subscribe to the pro-life beliefs articulated by Shapiro, Whelan, and Seago, he “is not personally opposed to abortion.”

Rather, for Stilley, his lawsuit against Braid is about “trying to upend legal norms,” which he has been doing throughout his career, challenging tax laws in Arkansas. Additionally, in an interview with the Washington Post, Stilley noted the “potential payout” of $10,000, should his lawsuit be successful, as one of his main reasons for suing Braid.

Opponents of Stilley, such as Bobby Roberts, the director of the Central Arkansas Library System, who fought against Stilley’s initiatives in the late 1990s to eliminate state property taxes, an action which Roberts claims would have decimated funding for public schools and libraries, told the Washington Post that Stilley’s lawsuit “may be just a case of opportunism and still a way for him to stir the pot. I think he’s trying to make a little money out of it, but he also might be trying to make a point.”

Stilley lost his law license in 2010 after he and a friend were charged with tax evasion; neither has filed federal income taxes since the 1980s. Stilley’s other legal antics include suing, at different times, the former Arkansas Governor Mike Huckabee, the state treasurer, the state finance director, and school leaders. At one point, he tried to have the judges on the Arkansas Supreme Court disqualified from reviewing his case on the grounds of bias against him. The great success of his legal career came in the late 1990s when he successfully blocked officials from using city tax-payer dollars to pay for a new parking garage for a business located outside city limits. Jerry Canfield, a longtime attorney in Fort Smith, Arkansas, Stilley’s hometown, characterized Stilley’s many previous lawsuits as “frivolous” and “baseless”.

Stilley’s case against Braid is legal under the Texas Heartbeat Law because the law governs citizens of Texas. As Braid is a citizen of and doctor practicing in Texas, he can be sued by any private citizen in the United States. While the law does not protect physicians or others who aid women seeking an abortion due to pregnancies as the result of rape, sexual abuse, or incest against lawsuits, the law does prohibit those “who impregnated the abortion patient through an act of rape, sexual assault, incest, or any other act prohibited by…[the] Penal Code” from filing lawsuits.

Stilley’s lawsuit against Braid was filed before the law was contested. Federal Judge Robert L. Pitman in Austin halted the enforcement of the Heartbeat Law in Texas on October 6, 2021, but on October 8, 2021, the Fifth Circuit Court of Appeals in Texas suspended Judge Pitman’s ruling, keeping the law in effect. Under the Heartbeat Law’s “Severability” subsection, all lawsuits filed prior to the blocking of the law can continue, and, if at any point a court puts the law back in effect,

a physician or Good Samaritan can be sued for any abortion performed while the law was blocked. So, Stilley’s lawsuit against Braid can continue.

Whatever Stilley’s reasoning for filing this lawsuit—be it for the fame, the money, or the desire to defend women’s rights to abortions—it has given Alan Braid, M.D. the case necessary for a possible appeal all the way to the Supreme Court.

Whether you support the Heartbeat Law or not, it is important to understand what makes the law groundbreaking. It is not only that the law sets the earliest threshold for an abortion in the United States, effectively prohibiting abortion after six weeks, before most women even know they are pregnant, but also that it has circumvented the Supreme Court and the Constitution by allowing, perhaps even demanding, that private citizens be the ones to regulate the punishment for abortions.

In a hypothetical situation:

Jane Doe is seeking an abortion, and asks her friend John Doe to drive her to the clinic. Jane’s Nosy Neighbor sees her get into John Doe’s car, and files a lawsuit against John Doe under the Heartbeat Law. The Nosy Neighbor presents the findings of her personal, yet “reasonable investigation”, to the court that proves that it was in fact John Doe driving the car. If the court finds John Doe guilty of driving Jane to the clinic, John Doe has to pay the Nosy Neighbor $10,000 and attorney fees for each abortion John Doe helped Jane receive.

In this hypothetical situation, the Nosy Neighbor could have seen Jane and John, and not filed a lawsuit against John. However, she made a conscious choice to file a lawsuit, and become an enforcer of the law in place of the police. The Nosy Neighbor’s choice to exact control on the abortion supply chain by making physicians, sonogram nurses, abortion clinic secretaries, and Uber drivers scared of having to pay a minimum of $10,000 is what controls Jane’s ability to receive an abortion.

The state of Texas is relying on the moral beliefs of the pro-life movement in Texas to enforce the Heartbeat Law, by forcing the women of Texas to live in fear of the moral compasses and abortion politics of their neighbors, rather than make confident, educated, and most importantly, private decisions about their bodies.

States across the nation have already started drafting abortion legislation modeled on the Heartbeat Law’s “private civil actions” method of enforcement. If this type of legislation becomes standard, there may be nothing stopping states from using this enforcement method to address other issues where traditional legislation has not been successful, such as gun control, voter suppression, and free speech.

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