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Now That Opponents of the Texas Abortion Ban Are Using Its Provisions To Defeat It, Pro-Life Activists Are Crying Foul

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Jacob Sullum | 9.23.2021 1:50 PM

S.B. 8, a Texas law that took effect at the beginning of this month, authorizes "any person" to sue "any person" who performs an abortion after fetal cardiac activity can be detected, facilitates it, or "intends" to do so. Plaintiffs, who are promised at least $10,000 in "statutory damages" per abortion plus compensation for their legal expenses if they win, need not live in Texas or allege any personal injury or interest. The only limitation is that they cannot be state or local officials, who are explicitly barred from trying to enforce the law.

That scheme, which covers the vast majority of abortions, was designed to prevent pre-enforcement challenges to S.B. 8 and to maximize its chilling effect, since the law's supporters hoped the mere threat of litigation would encourage clinics to dramatically curtail their services, which is exactly what happened. But now that the first two lawsuits authorized by S.B. 8 have been filed, anti-abortion activists are crying foul. Those cases raise the prospect that the law finally will be tested in court, potentially nullifying its chilling effect by allowing defendants to argue that the ban is inconsistent with the Supreme Court's abortion precedents.

The first two S.B. 8 lawsuits both target San Antonio gynecologist Alan Braid, who recently announced in a Washington Post opinion piece that he had deliberately violated the law. Braid's intent was to invite lawsuits that would help settle the issue of whether S.B. 8 is constitutional. That is also the avowed aim of the two plaintiffs who have sued him, Oscar Stilley and Felipe Gomez. Stilley, a disbarred Arkansas attorney who is serving a home-based federal sentence for tax fraud, said he was troubled by the fact that S.B. 8's reliance on private........

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