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 civil actions had frustrated constitutional challenges. Gomez, an Illinois lawyer whose license has been suspended, describes himself as a "pro-choice plaintiff" who likewise would welcome a ruling against S.B. 8.
All of the parties to these lawsuits, in other words, seem to think enforcement of S.B. 8 should be blocked. That situation dismays Chelsey Youman, Texas state director and national legislative adviser for Human Coalition, an anti-abortion group based in Frisco. "These out-of-state suits are not what the bill is intended for," Youman told The New York Times, which notes that her organization "said it had no plans to file a lawsuit" against Braid "or to encourage others to do so." Youman "speculated that the lawsuits were 'plants,' and she portrayed Dr. Braid's opinion essay as an attempt to bait a frivolous suit that would challenge the law's constitutionality in court."
Texas Right to Life also argues that the Stilley and Gomez lawsuits are improper. "Texas Right to Life is suspicious that Braid's op-ed is purely a legal and publicity ploy," it says. "The abortion industry's 16 previous efforts failed to stop this law from saving lives so far, and this may be another attempt….Neither of these lawsuits are valid attempts to save innocent human lives. Both cases are self-serving legal stunts, abusing the cause of action created in the Texas Heartbeat Act for their own purposes."
Contrary to the implication, S.B. 8 does not require that plaintiffs be motivated by a desire to "save innocent human lives." Its description of potential plaintiffs—"any person"—could not be broader. Private civil lawsuits ordinarily seek to vindicate the plaintiff's rights and compensate him for an injury. By eliminating any such requirement and embracing legal tricks that conservatives have long condemned, S.B. 8 invited just the sort of gamesmanship that offends Human Coalition and Texas Right to Life.
S.B. 8 not only defines potential defendants and plaintiffs very broadly; it rigs the rules to favor the latter over the former. The statute limits the defenses available to targets of the lawsuits it authorizes, and it bars them (unlike plaintiffs) from recovering their legal expenses if they nevertheless win, both of which make the threat of litigation more daunting. Now that Braid, Stilley, and Gomez have taken advantage of S.B. 8's provisions to defeat it, the law's supporters are suddenly concerned about "legal stunts" that "abus[e]" the civil justice system.
It is not hard to see why anti-abortion activists might prefer that no lawsuits are ever filed under S.B. 8. "The goal is to save as many lives as possible, and the law is working," Youman told the Times. Similarly, John Seago, legislative director for Texas Right to Life, estimated that "over 2,000 lives have been saved so far by the Texas Heartbeat Act." The law's deterrent effect will prove short-lived if judges in cases like those against Braid conclude, as seems inevitable, that S.B. 8 cannot be reconciled with the Supreme Court's abortion precedents and their rulings are upheld on appeal.
The Times reports that "anti-abortion leaders in Texas said they never expected many people to actually file lawsuits, thinking the process would be too costly and onerous." They thought they could achieve their goal without any litigation, and that expectation has proven correct so far. "After the law's passage," the Times notes, "clinics across the state immediately said they would comply; some reported that they had temporarily stopped providing any abortions at all." Women seeking newly banned abortions, which include any performed after six weeks or so unless they are necessary to address a "medical emergency," were forced to do so in other states, a barrier that in some cases was prohibitive.
The goal of immediately stopping abortions, however, was always at odds with the goal of giving the Supreme Court another chance to reconsider Roe v. Wade, the 1973 decision that said women have a constitutional right to abortion, and Planned Parenthood v. Casey, the 1992 decision that retained Roe's "central holding." The continued viability of those precedents is at the center of Dobbs v. Jackson Women's Health Organization, a case the Court already has agreed to hear. Oral arguments in that case, which involves a Mississippi law that bans abortion after 15 weeks, are scheduled for December 1. Unless the Court renounces Roe and upholds Mississippi's law, the broader Texas ban won't have a chance.