The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Shortly after S.B. 8 went into effect, I queried who would become the new Estelle Griswold of Texas? Who would deliberately violate the law to set up a test case? Dr. Alain Braid is the that person. Braid wrote an op-ed in the Washington Post, titled "Why I violated Texas's extreme abortion ban." He recounted:
And that is why, on the morning of Sept. 6, I provided an abortion to a woman who, though still in her first trimester, was beyond the state's new limit. I acted because I had a duty of care to this patient, as I do for all patients, and because she has a fundamental right to receive this care.
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. . . .
I understand that by providing an abortion beyond the new legal limit, I am taking a personal risk, but it's something I believe in strongly. Represented by the Center for Reproductive Rights, my clinics are among the plaintiffs in an ongoing federal lawsuit to stop S.B. 8.
Braid, whose name is one letter off from the defendant in Eisenstadt v. Baird, told the New York Times:
In an interview on Saturday, Dr. Braid declined to say whether the woman whose abortion he performed on Sept. 6 had been informed that her procedure could be part of a test case against the new law. "I'm not going to answer any questions about the patient in any way," he said.
He said that he had consulted with lawyers from the Center for Reproductive Rights and hoped that, by publicly stating that he had performed an abortion, he might contribute to the campaign to invalidate the law.
"I hope the law gets overturned," he said, "and if this is what does it, that would be great."
Braid makes sense as a possible defendant for a test case. His small practice has much less to lose than a larger institution, like Whole Woman's Health. He is old, and likely near the end of his career. Plus, the fact that he practiced before Roe makes for a good narrative.
If I had to guess, no one will bring a suit–yet. The statute of limitation is (I believe) four years. By that point, all of the litigation concerning S.B. 8 will have concluded, and the Supreme Court may yet modify abortion jurisprudence.