Lawsuits filed to challenge abortion ban

In the first lawsuits prompted by Texas’ restrictive new abortion law, two out-of-state litigants have sued a San Antonio physician who admitted to performing an abortion in defiance of the law.

The law, Senate Bill 8, bars the procedure after a fetal heartbeat has been detected — typically around six weeks, before most women know they are pregnant.

The law does not allow government enforcement of its restrictions. Instead, it empowers private individuals to sue abortion providers and anyone else who facilitates an illegal abortion, and collect at least $10,000 in civil damages. The law makes no exception for pregnancies resulting from rape or incest.

Two lawsuits invoking the private enforcement provisions of SB 8 were filed Monday in state district court in Bexar County. But the plaintiffs say they do not want to punish the San Antonio abortion provider, Dr. Alan Braid.

Instead, both suits seek judicial review of the Texas law, and one asks the court to declare it unconstitutional.

One of the litigants is Oscar Stilley of Arkansas, a former lawyer who is serving a 15-year sentence for tax fraud. Stilley said he is not opposed to abortion and sued Braid because he believes SB 8 should be reviewed by the courts.

“A doctor shouldn’t have to question whether or not he’s going to be bankrupt by a law when everybody says that law is garbage,” Stilley said in an interview. “But he doesn’t know, and if it turns out the courts uphold it, he’s going to be destroyed. That’s wrong.”

The other suit was filed by Felipe N. Gomez, a Chicago lawyer whose license has been sus

pended for alleged misconduct.

In the suit, Gomez identifies himself as a “pro-choice plaintiff ” and Braid as the “pro-choice defendant.”

In his lawsuit, Gomez asserts that Braid may have violated SB 8 but not Roe v. Wade, the 1973 U.S. Supreme Court decision that said women have a constitutional right to an abortion during the first two trimesters of pregnancy, or about 24 weeks.

Gomez’s two-page complaint asks the court “to declare that the Act is unconstitutional and in violation of Roe v. Wade.”

Braid went public about violating the Texas law in an op-ed published by the Washington Post on Saturday.

Braid, who owns Alamo Women’s Reproductive Services in San Antonio, said he performed an abortion on Sept. 6, less than a week after the law went into effect.

“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,” he wrote.

Braid said that during 45 years as an obstetrician-gynecologist in Texas, he delivered more than 10,000 babies and performed abortions at his San Antonio clinic and others he founded in Houston and Oklahoma.

“I fully understood that there could be legal consequences” for violating SB 8, “but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested,” he wrote.

Gomez, in an email, expressed admiration for Braid, who he said took an oath as a physician and “bravely chose to honor his word rather than a bogus law.”

Acknowledging that he nevertheless is suing Braid under SB 8, which allows plaintiffs to recover civil damages, Gomez said that if he is awarded any money, he will donate it to a charity of the doctor’s choosing.

“I’m not in it for the money. I’m in it to expose corruption and abuse of power,” he said.

Gomez, 61, currently is not practicing law. He said his Illinois law license was suspended over harassing emails he sent to attorneys in 2019 and the case is in litigation. In his suit against Braid, he is acting pro se, a doctrine that allows nonlawyers to represent themselves in legal proceedings.

Abortion providers and their supporters have been trying for months to challenge SB 8 but have run into trouble because of the law’s unusual civilian enforcement approach. As a result, there is no state action for courts to block.

Legal experts have suggested that the only way to overturn the law may be to violate it and bring a constitutional challenge in response to lawsuits seeking to enforce the law.

But until Braid’s op-ed on Saturday, no provider had said they planned to do so.

“Though we never ask why someone has come to our clinic, they often tell us,” Braid wrote in the Post article. “They’re finishing school or they already have

three children, they’re in an abusive relationship, or it’s just not time. A majority are mothers. Most are between 18 and 30. Many are struggling financially — more than half qualify for some form of financial aid from us.

“Several times a month, a woman confides that she is having the abortion because she has been raped. Sometimes, she reports it to the police; more often, she doesn’t.”

He added: “Texas’s new law makes no exceptions for rape or incest.”