Abortion civil suit dumped in first test under ban
In the first test of the Texas law that empowers private citizens to sue for a minimum of $10,000 in damages over any illegal abortion they discover, a state judge Thursday dismissed a case against a San Antonio abortion provider, finding that the state constitution requires proof of injury as grounds to file a suit.
Ruling from the bench, State District Judge Aaron Haas dismissed the suit filed by Chicagoan Felipe Gomez against Dr. Alan Braid who had admitted in a Washington Post op-ed that he violated the state's then-sixweek ban, Senate Bill 8, which allows for civil suits against anyone who “aids or abets” an unlawful abortion.
Thursday's ruling does not overturn the law or preclude similar suits from being filed in the future, lawyers for Braid said Thursday. Nor does it change the almost-total ban on abortion that went into effect in Texas when the U.S. Supreme Court struck down federal abortion protections earlier this year.
“This is the first SB 8 case that has gone to a ruling, a final judgment,” said Marc Hearron, senior counsel for the Center for Reproductive Rights, which was part of Braid's legal team. “It doesn't necessarily stop other people from filing SB 8 lawsuits, but what we expect is other courts, following this judge's lead, would say if you weren't injured, if you're just a stranger trying to enforce SB 8, courts are going to reject your claims because you don't have standing.”
The novel wording of the law, lauded by conservative advocates and legal scholars, helped the state get around federally protected abortion rights by giving the power of enforcement to citizens, rather than the government. That way, opponents could not simply sue the government and get a judge to block the law, and the fear of costly lawsuits would drive doctors to stop providing the procedure.
“We had to find another way,” the bill's author and personal in
jury lawyer Sen. Bryan Hughes, R-mineola, told Reuters, adding that he thought the law was “a very elegant use of the judicial system.”
Braid said in the op-ed that his purpose in performing the abortion and writing about it was to become a test case.
“I fully understood that there could be legal consequences, 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.
Haas said in court he would issue a written order in the next week, Hearron said. Gomez declined to comment until the ruling is finalized, though Hearron said Gomez told
the judge he would appeal.
Senate Bill 8, which was the most restrictive abortion law in the country when it went into effect in September 2021, purports to give anyone the standing to sue over an abortion prior to six weeks of pregnancy, which is before most patients know they’re pregnant.
The state later banned virtually all abortions except those that threaten a
mother’s life, with violations by anyone who provides the procedure or assists someone in obtaining one punishable by up to life in prison. Abortion patients are exempt from prosecution under the law.
Haas agreed with plaintiffs that the constitutional standard is that a person must be able to prove they were directly impacted to sue over an abortion, Hearron said.
Braid, the former medical director of Alamo Women’s Reproductive Services in San Antonio who has been practicing since a year before Roe v. Wade went into effect, was forced to close that clinic, as well as another in Oklahoma, due to the bans, which he said made him feel like it was “1972 all over again.”
“It is heartbreaking that Texans still can’t get essential health care in their home state and that providers are left afraid to do their jobs,” Braid said in a statement. “Though we were forced to close our Texas clinic, I will continue serving patients across the region with the care they deserve at new clinics in Illinois and New Mexico.”