The Volokh Conspiracy

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Parsing The First S.B. 8 Test Case

Oscar Stilley v. Alan Braid, MD


On Saturday Dr. Alan Braid wrote an op-ed in the Washington Post, titled Why I violated Texas's extreme abortion ban. Now authors do not always write the headlines. Indeed, if you read the body of the op-ed, Braid never actually says he violated S.B. 8. The closest he comes is in this section:

Then, this month, everything changed. A new Texas law, known as S.B. 8, virtually banned any abortion beyond about the sixth week of pregnancy. It shut down about 80 percent of the abortion services we provide. Anyone who suspects I have violated the new law can sue me for at least $10,000. They could also sue anybody who helps a person obtain an abortion past the new limit, including, apparently, the driver who brings a patient to my clinic. For me, it is 1972 all over again. 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 agree with Ed Whelan: it is not clear that Braid actually admitted to violating the law. S.B. 8 does not impose an actual time limit for abortions. The relevant standard is whether cardiac activity is present. And that activity may be detected at approximately six weeks. All Braid says is that he performed an abortion "beyond" the six-week limit. It is possible that even at that point, there was no cardiac activity. In which case, Braid did not violate the law. But Braid makes no mention, whatsoever, about whether he detected any cardiac activity.

On Monday, the first case based on S.B. 8 was filed in Texas state court by Oscar Stilley. The complaint, however, simply assumes there was cardiac activity.

13. On or about September 6, 2021, Defendant performed an abortion on a woman more than 6 weeks pregnant, but within the first trimester of her pregnancy.

14. The aborted fetus had a detectible heartbeat at the time of the abortion.

15. Defendant knowingly performed this abortion contrary to the clear and unmistakable provisions of Senate Bill 8.

In a normal case, Braid could file an answer in which he says paragraph 14 is true or not true. But I doubt we will go through normal motion pleading. My colleagues Howard Wasserman and Rocky Rhodes predict that Braid will file a Section 1983 suit against Stilley. That suit faces potential Younger problems, which Howard and Rocky address. Braid could also remove the case to federal court based on diversity jurisdiction: Stilley is a resident of Arkansas and he seeks $100,000 in damages. Removal would obviate the need to deal with Younger.

Even if Stilley receives all the relief he seeks, that judgement would only affect Stilley and Braid. This case, as captioned, would not even affect other doctors at Braid's clinic. This test case would not be much of a test case. Nor would this challenge necessarily provide persuasive precedent for a suit brought against other clinics, or groups that fund abortions. The S.B. 8 hydra continues to sprout new heads. Still, the mere existence of this suit undermines DOJ's argument that S.B. 8 cannot be reviewed in federal court, absent its unprecedented suit against Texas.