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 evidence that a law has been broken.
The organizations – which have lobbied for the law which Dr Alan Braid freely admits to having flouted – appear to be playing a tortured semantic game to avoid triggering a legal mechanism that could result in a ban declared unconstitutional.
Braid has been sued since going public with an op-ed in The Washington Post over the weekend, hoping that a lawsuit against him would overturn the law. But the plaintiffs are two men who do not oppose abortion and just want the courts to intervene.
On Monday, Texas Right to Life – which previously set up a website to catch law breakers – actually boasted that none of the lawsuits against Braid had come from within their movement. They dismissed Braid’s editorial as “purely a legal and publicity ploy” and the lawsuits against him as “selfish legal stunts”.
In an interview with The Daily Beast, Texas Right to Life legislative director John Seago claimed that the editorial – titled “Why I violated Texas’ extreme abortion ban” – did not provide enough evidence that Braid had broken the law. He said the only information Braid provided about the abortion in question was that it was performed on September 6 on a woman who was “beyond the new state limit.” Seago claimed this was a deliberate misreading of the law, which prevents abortions after fetal heart activity can be detected, and not after a specific time.
âThe law has no limit, it’s not a six-week ban,â Seago said. âIf he had said, ‘I did the Doppler, I heard the heartbeat, then I had an abortion’, that would have been an admission of guilt. It is loosely worded and in fact distorts the law. “
“There is no credible evidence that [Braid] performed an illegal abortion, âhe added. (In response, Marc Hearron, senior attorney at the Center for Reproductive Rights, who represents Braid, said, âDr Braid performed an abortion on a patient in violation of SB 8, which is a blatantly unconstitutional law.â)
Seago may truly believe that Braid did not provide enough ammunition for someone to sue under the new law, or he may know that if his organization sued, it would give reproductive rights defenders the opening. they were looking for to challenge the law in court.
Previous attempts to bring down SB8 have failed because it is written to be enforced by citizens, not the state, meaning opponents cannot sue the government for blocking it, as they did. in the other 10 states that tried to pass similar six. weekly bans. But if an action brought under the law ever ends up in court, lawyers will have a direct opening to raise their constitutional challenges.
Conservative commentator Ed Whelan made this point explicitly in a National exam article on Monday, arguing that it made no sense for someone to bring an action under SB8 unless the Supreme Court overturns Roe vs. Wade. Before that point – which Whelan optimistically estimates at the end of June 2022 – such a trial would be “doomed to failure.” (Whelan, like most people with a passing knowledge of the law, knows Roe deer declared the ban on abortion so early in pregnancy unconstitutional.)
The two people who sued Braid also understand this. Felipe Gomez, a Chicago lawyer struck off the bar who sued Braid this week, has emphatically asked the court in his case to declare the law unconstitutional. Oscar Stilley, another lawyer struck off the bar who brought a lawsuit against Braid, told the Daily Beast he did so in order to speed up court challenges. âI want a judgment on this. I would like that to be established – is this a valid law or does this garbage have to be thrown away? ” he said.
This is probably why the Seago group rejects the lawsuits as “bogus” and why other anti-abortion groups have not attempted similar lawsuits.
Operation Rescue, an anti-abortion group whose members have filed countless complaints against abortion clinics and even chained themselves to the doors of clinics, also chose not to prosecute Braid this week and instead filed a lawsuit against him with the Texas Medical Board. The group has been even more explicit in their reasoning than Texas Right to Life, claiming in a blog post that Braid has made it clear he is aiming for a lawsuit and that they will not give him “the satisfaction of making his wishes come true.” .
In an interview with The Daily Beast, Operation Rescue President Troy Newman said Braid “must suffer the consequences that are enshrined in state law” but would not commit to enforcing them himself. same. Instead, he said his group “was just going to let the law take its course”, including filing the medical council’s complaint against the doctor and his clinic.
The Texas Medical Board declined to comment on Operation Rescue’s complaint, citing state privacy laws. He noted that the text of SB8 explicitly forbids him to apply the articles of the law relating to performing an abortion after detection of cardiac activity, which means that the complaint is likely to go nowhere.
Ultimately, whether or not anti-abortion activists sue under SB8, the law will always be subject to legal attack, including one filed by the US Department of Justice last week, which alleges the law was enacted “in open disregard of the Constitution”. Challenges filed by the Center for Reproductive Rights, Planned Parenthood and other advocates are also pending.
The Center for Reproductive Rights is representing Braid in one of these challenges and said in a statement that he will also represent the doctor in all “vigilante trials” generated by his editorial.
“For more than two weeks this unacceptable law has been in force, hurting many Texans and falling hardest on those who struggle to make ends meet and people of color, who already face barriers to care. health, âsaid CRR President Nancy Northup. “It is high time for a court to step in and block it.”