The people who designed Texas’s recently implemented ban on most abortions were devilishly smart to come up with a vigilante-enforcement scheme that relies on people suing abortion providers, which made judicial review of the law difficult enough for the Supreme Court to turn down a chance to note its blatantly unconstitutional character. And so for a couple of weeks, it looked like a stalemate between abortion providers afraid of being sued and a disciplined anti-abortion movement wary of filing a lawsuit that would get the law reviewed and frozen by the courts. But the lawmakers may have gone too far by enabling lawsuits by any old yahoo, even those living out of state, who know how to find a Texas courthouse.
On September 18, Dr. Alan Braid, a San Antonio OB-GYN seeking to force judicial review of SB 8, announced in a Washington Post op-ed that he had violated the law in order to invite a suit that would in turn force judicial review. Then, on September 20, an apparently disbarred attorney living on house arrest in Arkansas filed the first enforcement suit against the physician. As the Post reported, Oscar Stilley, “a former lawyer convicted of tax fraud in 2010,” filed suit in San Antonio alleging that Braid violated SB 8, which he fully admits. Between the two of them, it seems they’ll get judicial review of the law underway. Almost simultaneously, another disbarred lawyer from Illinois, Felipe Gomez, also sued Braid under SB 8.
What makes this turn of events especially rich is that Stilley and Gomez both described themselves as pro-choice. So they presumably weren’t getting any right-to-life emails urging true believers to cool it on enforcement suits for now. They profess to believe, like any lawyer (or former lawyer) might, that the law, which violates 48 years of Supreme Court precedents, deserves judicial review. Stilley, at least, also made it clear he wouldn’t mind getting some of the sweet bonus money the law provides to vigilantes: “If the state of Texas decided it’s going to give a $10,000 bounty, why shouldn’t I get that $10,000 bounty?” He probably needs it since he’s currently serving a 15-year sentence on home confinement for his tax issues. His complaint in the Texas court, actually, makes it clear this “disbarred and disgraced lawyer” is probably just seeking attention for his claims about “the baseless felony conviction and sentence that has placed him in various federal prisons, and now on home confinement.” That’s what enabling random litigants will get you. They’ll either win in court and get their bounties, or lose and become national celebrities who forced the courts to look at an unconstitutional law.
Texas anti-abortion folks aren’t happy with this turn of events, according to the New York Times:
“Neither of these lawsuits are valid attempts to save innocent human lives,” said John Seago, legislative director for Texas Right to Life, the state’s largest anti-abortion group, which lobbied for the new abortion law. “Both cases are self-serving legal stunts, abusing the cause of action created in the Texas Heartbeat Act for their own purposes.”
Cry me a river, John. If you put money out there to attract lawsuits from random people, you don’t get to insist they share your ideology.
The randomness of these suits — which is just what SB 8’s architects intended — ironically makes them good vehicles for challenging the law, as the New York Times observes:
Legal experts said the lawsuits filed in state court might be the most likely way to definitively resolve the constitutionality of the Texas law, which has withstood legal tests. Two more sweeping challenges filed in federal court, brought by abortion providers and the Justice Department, raise difficult procedural questions.
The federal suits are likely to run into the same procedural thicket that enabled the Supreme Court’s refusal to review the law to begin with. But a state trial with a plaintiff and a defendant is almost certain to lead to the Texas Supreme Court, and after a constitutional challenge, right back to SCOTUS with an appeal the Court cannot ignore.
We’ll see if the legal tricksters who devised this law, or the judges who are winking at it, have another move up their sleeves, or if instead they’ve outsmarted themselves.