Texas Doctor Tries to Move Fight Over Abortion Ban to Chicago
(Bloomberg) -- The Texas doctor who publicly defied the state’s restrictive abortion ban is going on the offense -- again.
Dr. Alan Braid of San Antonio asked a federal judge in Chicago on Tuesday to take control of lawsuits filed against him in Texas by individuals in three states seeking to collect $10,000 bounties under the law for each illegal abortion. Braid, who says the law is unconstitutional, disclosed in a Washington Post opinion article that he’d performed a banned procedure on Sept. 6.
While the lawsuits were filed in Texas state courts, the plaintiffs live in Illinois, Arkansas and Texas. Braid’s challenge is an attempt to shift the legal fight away from Republican-controlled courts in Texas to a “generally more favorable” venue in Chicago, said Josh Blackman, a constitutional law professor at the South Texas School of Law Houston.
“There is, in effect, a race to the courthouse,” Blackman said. “And if the statute is unconstitutional in this context, the plaintiffs are entitled to $0.”
While the Seventh Circuit U.S. Court of Appeals that covers Chicago leans conservative, it has fewer Republican-appointed judges than the Fifth Circuit that encompasses Texas. The Fifth Circuit upheld a Louisiana law that would have effectively closed down most abortion clinics in the state by requiring doctors performing abortions to have admitting privileges at local hospitals, though the ruling was overturned last year by the U.S. Supreme Court.
Braid isn’t alone in challenging the law. The U.S. Justice Department has sued Texas and is waiting on a federal judge to weigh in on the law’s constitutionality. That judge held a hearing Oct. 1 about temporarily blocking the ban, but hasn’t said when he’ll rule. The U.S. Supreme Court in August sidestepped a request by abortion providers to temporarily block the law.
The Texas law, SB8, outlaws abortions once fetal cardiac activity is detected. That’s usually around six weeks, before many women know they’re pregnant. Rather than the state government enforcing the measure, it allows individuals to claim $10,000 bounties for each successful challenge to an illegal procedure.
Braid’s complaint asks the Chicago judge to decide which of his opponents is entitled to the damages or if in fact no one can receive them because the Texas law violates a woman’s right to terminate a pregnancy before viability. His filing also could force all lawsuits over claims against him under SB8 to be litigated in that federal court, no matter where they start or where the plaintiffs live.
Felipe Gomez, the Chicago plaintiff suing Braid over the Sept. 6 abortion, said in an interview Wednesday that he thinks attempts to shift the case to a federal judge are out of bounds legally. The litigation involves Texas law and must go through the state court system before it reaches the U.S. Supreme Court, said Gomez, a suspended attorney. “That’s how it works,” he said. Gomez declined further comment until he’d had time to review Braid’s complaint.
Oscar Stilley, the plaintiff in Arkansas suing Braid, didn’t immediately respond Wednesday to a request for comment.
Braid’s complaint may allow a Chicago judge to rule on the Texas law’s constitutionality, which has been difficult for courts to address because enforcement has been through private individuals rather than state officials.
In his court filing on Tuesday, Braid said the three people suing him should be considered “state actors to the extent they are significantly involved in conduct that would be unconstitutional if engaged in by the state itself or where Texas has sanctioned their conduct.”
Getting the Texas abortion ban completely thrown out as unconstitutional will be difficult, according to Blackman. That’s because lawmakers added a feature that allows judges to essentially rewrite the measure on the fly, instructing them to sever any of its provisions deemed unconstitutional so the rest can carry on.
“This hydra cannot be stopped,” Blackman said.
The case is Alan Braid v. Oscar Stilley et al, 21-cv-05283, U.S. District Court, Northern District of Illinois (Chicago)
©2021 Bloomberg L.P.