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First Abortion Doc Sued Under New Texas Law

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Reason Roundup

Elizabeth Nolan Brown | 9.21.2021 9:32 AM

It begins. A Texas physician who penned an op-ed about performing an abortion in defiance of the state's new ban on the procedure after six weeks is being targeted by a civil lawsuit. Physician Alan Braid—a doctor whose clinics are represented by one of the reproductive freedom groups that asked the Supreme Court (unsuccessfully) to intervene—was practically daring someone to sue him, with a piece that drew national attention to his prohibited act.

And his dare was successful: Someone is now suing Braid for performing an abortion once fetal cardiac activity could be detected, in violation of the Texas law.

The man behind the first lawsuit is Oscar Stilley, an Arkansas resident who describes himself as a "disbarred and disgraced former Arkansas lawyer" and is currently serving a home-based federal prison sentence for tax evasion. The Texas abortion ban was written to let any nongovernmental actor, regardless of location, bring a lawsuit, with the possibility of receiving $10,000 if successful.

"If the law is no good, why should we have to go through a long, drawn-out process to find out if it's garbage?" said Stilley.

Details of Stilley's suit against Braid "are as unusual as the law itself," The Washington Post comments. Stilley "said he filed the claim not because of strongly held views about reproductive rights but in part because of the $10,000 he could receive if the lawsuit is successful."

You can read his full complaint here.

His suit against Braid sets up the Texas law for another challenge, overcoming the problems with the last one. The Supreme Court—which is set to hear another big abortion case in December—declined to block the Texas law because its challengers had sued state officials, who are not tasked with enforcing the private civil action–based law.

The Texas abortion ban, Senate Bill 8, was written this way for just this reason. It "was expressly designed so that state officials could dodge accountability for the state's law in federal court," Reason's Damon Root points out.

Root also notes that the Department of Justice—which sued over the law last week—"has offered a potentially winning strategy for overcoming that legal ruse":

In an emergency motion for a temporary restraining order or preliminary injunction filed in United States v. Texas, the federal government stresses the many ways in which the Texas law "impermissibly regulates the Federal Government…and poses unlawful obstacles to the accomplishment of federal objectives." In other words, because federal sovereignty and federal interests are being harmed by the state, the federal government may lawfully sue the state over those injuries in federal court.

Now, Braid's admission that he violated the abortion ban by performing a first-trimester abortion after fetal cardiac activity could be detected invited the first lawsuit under S.B. 8, making it possible for Braid to challenge the constitutionality of this blatantly unconstitutional law.

"Once a private party sues Braid, the constitutional issues raised by S.B. 8 will be unavoidable," Reason's Jacob Sullum wrote yesterday. "The only way to uphold the law will be to renounce Roe v. Wade and its progeny. Although most of the current justices seem to disagree with those precedents, that does not necessarily mean they are prepared to abandon half a century of jurisprudence, along with all the expectations built on it, in one fell swoop."

"Higher education liberalizes moral concerns for most students, but it also departs from the standard liberal profile by promoting moral absolutism rather than relativism," researchers write in the abstract to a new paper published in American Sociological Review.

The paper—from University of Toronto sociology professor Andrew Miles........

© Reason.com

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