The First Plaintiffs to Sue Under the Texas Abortion Ban Are as Ridiculous as the Ban Itself
The Washington Post published an op-ed over the weekend by Alan Braid, a Texas doctor who said that he had performed an abortion earlier this month in violation of a state law that effectively banned the procedure after six weeks. Braid explained that he began practicing medicine one year before the Supreme Court’s 1973 decision in Roe v. Wade, a span in which he said he saw three teenagers die from illegal abortions, and that he could not stand by as the ruling was all but overturned in Texas through the high court’s inaction.
“For me, it is 1972 all over again,” he said. “And that is why, on the morning of Sept. 6, I provided an abortion to a woman who, though still in her first trimester, was beyond the state’s new limit. I acted because I had a duty of care to this patient, as I do for all patients, and because she has a fundamental right to receive this care.” Braid said that he “fully understood that there could be legal consequences,” but added that he “wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.”
Legal consequences soon followed. At least two plaintiffs filed lawsuits against Braid in state court in San Antonio the next day, both invoking Senate Bill 8. Neither of the claimants are Texans. One described himself as a “disbarred and disgraced former Arkansas lawyer” who is currently serving a 15-year prison sentence for tax evasion. The other is currently suspended from practicing law in Illinois for allegedly sending threatening emails to other lawyers. Both of them highlight the absurdity of Texas’s M.C. Escher-esque gambit to overturn Roe v. Wade through bounty hunting and procedural trickery.
One of the lawsuits against Braid came from Felipe Gomez, a lawyer from Illinois who described himself in the court filing as a “pro-choice plaintiff.” The complaint is only four paragraphs long; two of them ask the state court to strike down S.B. 8, and none of them ask for the $10,000 or more in damages that the law would allow him to seek. In an interview with The Wall Street Journal on Monday, Gomez explained that he was “against having someone tell me I have to get a shot or wear a mask and the same people who agree with me on that—the GOP—tell people what they can do with their bodies on the other hand.”
The other lawsuit, filed by Arkansas ex-lawyer Oscar Stilley, is more adversarial. Citing the Washington Post op-ed, Stilley said Braid had “allowed his own personal ideology to cause him to violate the express provisions of Senate Bill 8 despite the potential consequences.” He asked the court to issue an injunction against Braid to block him from performing any further abortions. Stilley also asked the court to order Braid to pay him $100,000 in damages. S.B. 8 sets a minimum of $10,000 in damages for prospective bounty-hunting litigants but doesn’t establish a ceiling, giving Stilley the opportunity to ask for a sum 10 times higher.
Stilley is no stranger to the American legal system. In his complaint against Braid, he told the court that he is “serving the 12[th] year of a 15 year federal sentence on utterly fraudulent federal charges of ‘tax evasion’ and ‘conspiracy,’ all of which repeatedly changed and morphed away from the purported grand jury indictment, to whatever new theory the government chose to espouse at a given time.” Those charges stemmed from his work as a lawyer for clients who had faced tax evasion charges themselves or sought to make tax-protester arguments against the IRS in court.
In court filings from his 2009 trial, the Justice Department said that Stilley and a business associate had evaded federal taxes through a fictitious entity called the Bondage Breakers Ministry. Though its name resembles that of a tax-exempt religious organization, prosecutors claimed it was actually an unregistered front through which client payments could be routed as “gifts” or “donations,” giving the appearance that neither man had any actual income. Neither of them had filed returns with the IRS since the late 1980s. According to court filings, Stilley would then deposit the checks in a special type of bank account used by lawyers for clients’ funds, from which checks were written to himself and his partner.
The Tulsa World reported that the trial judge described Stilley at sentencing as an “unrepentant tax cheat” and said that he had used his law license as an “instrument of fraud and a license to steal.” (In his complaint against Braid, Stilley said that he “remains confident that he will eventually receive total exoneration of all counts of conviction.”) He spent the last 12 years serving a 15-year sentence for tax evasion and conspiracy, most recently on home confinement. “I represented defendants in criminal trials, both in Arkansas courts and in federal courts,” Stilley said on his personal website when discussing his 19 years of practice as a lawyer. “I know what [it’s] like to represent defendants, and I know what [it’s] like to be one.”
If Stilley’s lawsuit against Braid is unusual, that’s only because S.B. 8 is an unusual law. In his suit, Stilley noted that S.B. 8 “confers a private right of action upon ‘any person,’ without limitation as to residency or citizenship in the State of Texas, status as a felon, condition of ‘official detention,’ disbarment from the practice of law, public disgrace, difficulties getting due process, etc,” which is a long-winded way of saying that almost anyone can file a lawsuit. The only general limitation on standing is that no Texas state government employees can file a complaint, a condition that Stilley said he met, “despite all his legal troubles.” Nor does the law require Stilley to have been wronged or injured by Braid in any way; it’s unclear whether Stilley has even set foot inside Texas since his conviction in 2009. These are features, not bugs, in S.B. 8’s design.
The lawsuit is also unusual in other ways. Stilley spent almost an entire page making unrelated assertions about Braid and his beliefs. The complaint claims that Braid “is kind and patient and helpful toward bastards, but ideologically opposed to forcing any woman to produce another bastard against her own free will,” that he “has some understanding of the cruelty and abuse heaped upon bastards and social misfits in Texas prisons,” and that he “would willingly devote substantial parts of his own personal resources to assist in improving the correctional outcomes of Texas state prisons.” It’s unclear what this has to do with S.B. 8 or Braid’s admitted performance of an abortion.
The complaint then goes on to speculate about Braid’s spiritual beliefs, asserting among other things that he “believes that his Elohim (‘mighty ones,’ AKA ‘God’) is entirely capable of giving a new body to replace a defective fetus, in the here and now, and not only ‘when you die bye and bye.’” Stilley told the court that each of these claims was based “on information and belief,” a legal phrase usually used to indicate in sworn statements that something isn’t firsthand knowledge, but not typically used in this context. Stilley also said that he called Braid “to inquire whether or not [Braid] might repent of his ideology as well as his deeds and agree never to perform another abortion” before filing the lawsuit, but was unsuccessful.
In an interview with The Wall Street Journal, Stilley claimed his lawsuit wasn’t actually motivated by anti-abortion views but rather by personal gain. “The doctor is going to get sued,” he reportedly told the newspaper. “Someone is going to get $10,000 off him. If that’s the law, I may as well get the money. If it’s not the law, let’s go to court and get it sorted out.” It’s hard not to see that mindset as a predictable outcome of S.B. 8’s design and intent: turning random individuals into would-be bounty hunters to make a buck off anyone who helps a woman obtain a medical procedure protected by nearly a half-century of Supreme Court precedent.
It might be tempting to chalk up the strange tenor of these lawsuits to their eclectic plaintiffs. But the root of the problem can be more accurately traced to S.B. 8 itself. The law’s authors tried to evade judicial review by outsourcing enforcement of their six-week abortion ban to private citizens, throwing out procedural traps for skeptical judges and giving convenient excuses to let it stand for sympathetic ones. By effectively nullifying Roe through legal gimmicks, S.B. 8 allows judges and justices to make a mockery of the rule of law.
Perhaps that’s why overwhelming numbers of Americans said they disapprove of the statute in a recent Monmouth University survey. A whopping 81 percent said they opposed the $10,000-or-more bounty provision in particular, placing it among the least popular policy items in modern American politics. In the end, however, there is only one opinion survey on abortion rights that really matters. And after the justices’ conspicuous inaction on S.B. 8 earlier this month, it seems unlikely that Roe v. Wade will emerge unscathed.