Texas anti-abortion groups are taking no action against a doctor who revealed he terminated a pregnancy after six weeks in violation of a new state ban, bizarrely claiming there is no proof any law was broken.
The organizations—which pushed for the law that Dr. Alan Braid freely admits he flouted—seem to be playing a tortured game of semantics to avoid triggering a legal mechanism that could end with the ban being declared unconstitutional.
Braid has been sued since he went public with an op-ed in The Washington Post over the weekend, hoping that a suit against him would result in the law being struck down. But the plaintiffs are two men who don’t oppose abortion and just want the courts to weigh in.
On Monday, Texas Right to Life—which previously created a website to catch violators of the law—actually bragged that neither of the suits against Braid had come from within their movement. They dismissed Braid’s op-ed as “purely a legal and publicity ploy” and the suits against him as “self-serving legal stunts.”
In an interview with The Daily Beast, Texas Right to Life legislative director John Seago claimed the op-ed—which is headlined “Why I Violated Texas’s Extreme Abortion Ban”—did not provide enough evidence that Braid broke the law. He said the only information Braid provided about the abortion in question was that it was performed Sept. 6 on a woman who was “beyond the state’s new limit.” Seago claimed this was a willful misreading of the law, which prevents abortions after fetal cardiac activity can be detected, not after a specific point in time.
“The law doesn’t have a limit, it’s not a six-week ban,” Seago said. “If he would have said, ‘I did the Doppler, heard the heartbeat, and then I performed an abortion,’ that would have been an admission of guilt. This is vaguely worded and actually mischaracterizes the law.”
“There is no credible evidence that [Braid] performed an illegal abortion,” he added. (In response, Marc Hearron, senior counsel at the Center for Reproductive Rights, which is representing Braid, said: “Dr. Braid provided an abortion to a patient in violation of S.B. 8, which is a blatantly unconstitutional law.”)
Seago may truly believe Braid did not provide enough ammunition for someone to sue under the new law, or he may be aware that if his organization sued, it would give reproductive rights advocates the opening they’ve been looking for to challenge the law in court.
Previous attempts to bring down SB8 have been unsuccessful because it is written to be enforced by citizens, not the state—meaning opponents can’t sue the government to block it, like they have in the 10 other states that tried to pass similar six-week bans. But if a suit filed under the law ever makes it in front of a judge, advocates will have a direct opening to raise their constitutional challenges to it.
Conservative commentator Ed Whelan made this case explicitly in a National Review article Monday, arguing that it made no sense for someone to bring a claim under SB8 unless the Supreme Court overturns Roe v. Wade. Before that point—which Whelan optimistically estimates will be the end of June 2022—such a lawsuit would be “bound to fail.” (Whelan, like most people with a passing familiarity of the law, knows Roe declared bans on an abortion this early in a pregnancy unconstitutional.)
The two people who have actually filed lawsuits against Braid understand this, too. Felipe Gomez, a disbarred Chicago attorney who sued Braid this week, flat-out asked the court in his filing to declare the law unconstitutional. Oscar Stilley, yet another disbarred attorney who filed suit against Braid, told The Daily Beast he did so in order to expedite the legal challenges to the law. “I want a judgment on it. I’d like to get this established—is this a valid enactment or is this garbage that needs to be thrown out?” he said.
That’s probably why Seago’s group is dismissing the lawsuits as “bogus,” and why other anti-abortion groups have not attempted similar suits.
Operation Rescue—an anti-abortion group whose members have filed countless complaints against abortion clinics and even chained themselves to clinic doors—also chose not to sue Braid this week, and instead filed a complaint against him with the Texas Medical Board. The group was even more explicit in its reasoning than Texas Right to Life, saying in a blog post that Braid had made it clear he was aiming for a lawsuit, and that they would not give him “the satisfaction of granting his wishes.”
In an interview with The Daily Beast, Operation Rescue President Troy Newman said Braid “needs to suffer the consequences that are built into the state law” but would not commit to enforcing them himself. Instead, he said his group was “just going to let the law work its way out,” including by filing the medical board complaint against the doctor and his clinic.
The Texas Medical Board declined to comment on Operation Rescue’s complaint, citing state confidentiality laws. It did note that the text of SB8 explicitly prohibits it from enforcing sections of the law related to the performance of abortion after the detection of cardiac activity—meaning the complaint is likely to go nowhere.
Ultimately, regardless of whether anti-abortion activists sue under SB8 or not, the law will still face legal attacks—including one filed by the U.S. Department of Justice last week, which alleges the law was enacted “in open defiance of the Constitution.” Challenges filed by the Center for Reproductive Rights, Planned Parenthood, and other advocates are also pending.
The Center for Reproductive Rights represents Braid in one of these challenges, and said in a statement that it would also represent the doctor in any “vigilante lawsuits” generated by his op-ed.
“For more than two weeks this unconscionable law has been in effect, harming numerous Texans, and falling hardest on those struggling to make ends meet and people of color, who already face barriers to health care,” CRR President Nancy Northup said. “It’s past time for a court to step in and block it."