Parsing The First S.B. 8 Test Case

Oscar Stilley v. Alan Braid, MD

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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.

NEXT: A Thousand Buckets of Sand in the Gears

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  1. The absence from this blog of any discussion of the merits of the DOJ lawsuit is conspicuous.

    1. Similar to the absence from your comment of any merits at all.

    2. The lack of merit of certain aspects of the DOJ suit get a thrashing from Blackman here: https://reason.com/volokh/2021/09/21/sg-argues-there-is-no-middle-path-in-dobbs/

      1. That post is about the Solicitor General’s brief in Dobbs, not about United States v. Texas. The conspirators are running away from that case like scalded dogs.

  2. I think 3 and 4 from the complaint might be more interesting than 13-15:

    3. Plaintiff is a disbarred and disgraced former Arkansas lawyer, residing at the address set
    forth at the bottom of this complaint.

    4. Plaintiff is currently on home confinement, in the custody of the United States Department of Justice-Federal Bureau of Prisons, (DOJ-FBOP) serving the 12 year of a 15 year federal sentence on utterly fraudulent federal charges of “tax evasion” and “conspiracy,” all of which repeatedly changed and morphed away from the purported grand jury indictment, to whatever new theory the government chose to espouse at a given time

    Not to mention his argument that picks up after what you quoted:

    16. On information and belief, Defendant is kind and patient and helpful toward bastards, but ideologically opposed to forcing any woman to produce another bastard against her own free will.
    17. On information and belief, Defendant has some understanding of the cruelty and abuse heaped upon bastards and social misfits, in Texas prisons.
    18. On information and belief, Defendant is ideologically opposed to cruelty and abuse of persons based upon their status as bastards or social misfits.
    19. On information and belief, Defendant would willingly devote substantial parts of his own personal resources, to assist in improving the correctional outcomes of Texas state prisons.
    20. On information and belief, Defendant is thoroughly convinced that his acts, which form the basis for this lawsuit, contribute mightily to human happiness and the advancement of human society.
    21. On information and belief, Defendant believes that his Elohim (“mighty ones,” AKA “God” is entirely capable of giving a new body to replace a defective fetus, in the here and now, and not only “when you die bye and bye.”

    1. Wow. The mind. It, um, boggles. (My cynical mind wonders, “Is this guy really this delusional? [My guess is, “Yup.”] But the alternative is; he knows he looks like an idiot and an insane person, and he’s giving us this B.S. gibberish b/c he’s trying to show that the law is a joke, is worthy of mockery, and so he’s going to file a lawsuit just as moronic as is the law it’s aimed at. Could this plaintiff/ex-lawyer/genius [??] really be playing long-con, 3-dimensional, chess?)

      [As you can tell, I hope; I’m trying to channel my inner Blackman.]

    2. Sounds like another fake plaintiff.

    3. Realistically, the court should just dismiss the lawsuit for lack of controversy. If it was a federal court, Muskrat v U.S. would serve….

      Federal courts do not issue “advisory opinions” on the constitutionality of laws. There must actually be a controversy

  3. Will the Texas legislature now recognize the wisdom of being careful what one asks for? Or are they content to have thrown Br´er Rabbit into the brier patch?

    1. You’ll have to make an actual argument for why they *ought* to “recognize” that they’ve made an error. It’s not like Braid has soomehow been gifted with a monopoly on filing SB8 suits.

      And who is Br´er Rabbit? Abortionists?

      1. errata: “…it’s not like STILLEY has somehow…”

      2. The legislature invited suits like this with their “any person” language, which has now bitten them in the hindquarters.

        Br’er Rabbit is Dr. Braid.

  4. The “he didn’t really confess” argument doesn’t seem to have much merit. SB8 makes providers liable if they knew or ought to have known of the presence of a heartbeat. No precise time limit is specified. Therefor Braid’s statement that “I provided an abortion to a woman who, though still in her first trimester, was beyond the state’s new limit” is precisely a statement that the fetus had a heartbeat.

    1. “(b) Except as provided by Section 171.205, a physician may
      not knowingly perform or induce an abortion on a pregnant woman
      unless the physician has determined, in accordance with this
      section, whether the woman’s unborn child has a detectable fetal
      heartbeat.
      (c) In making a determination under Subsection (b), the
      physician must use a test that is:
      (1) consistent with the physician’s good faith and
      reasonable understanding of standard medical practice; and
      (2) appropriate for the estimated gestational age of
      the unborn child and the condition of the pregnant woman and her
      pregnancy.
      (d) A physician making a determination under Subsection (b)
      shall record in the pregnant woman’s medical record:
      (1) the estimated gestational age of the unborn child;
      (2) the method used to estimate the gestational age;
      and
      (3) the test used for detecting a fetal heartbeat…”

      https://legiscan.com/TX/text/SB8/id/2395961

      Braid can’t justify a claim that the abortion he provided a “beyond the legal limit” if he tested for a heartbeat and it wasn’t there.

      1. Isn’t Ed Wheelan the jackass who decided the proper answer to the rape accusation against Kavanaugh was that he’d found in some gym teacher a better candidate for the alleged rapist than Kavanaugh?

        Any time Blackman find himself in agreement with Wheelan he should lie down and see if he can get over it.

      2. The doctor also didn’t mention if he complied with the record-keeping requirements of the statute.

        Furthermore, the doctor likely violated section 171.208(a)(3) as he clearly “intends to engage” in prohibited conduct. Did writing the article also aid or abet prohibited conduct? It’s more tenuous, but if so, he also violated 171.208(a)(2).

        I think it’s pretty safe to assume, as the headline writer did, the doctor did actually violate the law.

  5. “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.”

    Since the state’s limit isn’t in terms of weeks, but instead detection of a fetal heartbeat, the only way he can claim that the woman was beyond the state’s limit is if he DID detect a fetal heartbeat. And if he didn’t test for one, that, too, would be a violation of the law, and the sort of violation you certainly would NOT chose for a test case.

    So I’d say the headline in this case is accurate, and he has confessed to violating the state law.

  6. “All Braid says is that he performed an abortion “beyond” the six-week limit.”

    And, mounting my hobby horse, don’t paraphrase and drop in a single word in quotes, like a rare and precious spice you have to ration. His actual words are available, just quote him. Paraphrases are how shoddy writers suggest somebody said something they didn’t actually say.

    In fact, the law doesn’t have a six week limit, and he didn’t claim to have performed an abortion after six weeks. The guy put a lot of work into choosing his words, don’t switch them out for different words he didn’t choose.

  7. Well, it didn’t take long for Josh to be proven wrong about nobody filing any suits under SB8.

    1. Well, it didn’t take long for Josh to be proven wrong about

      ____________________.

      1. Thank goodness he’s on your team, clingers.

        Until Prof. Blackman chose the red team, the liberal-libertarian mainstream had not experience such good luck of the draw since the day on which the Republican Conservatives chose bigotry, backwardness, superstition, ignorance, can’t-keep-up backwaters, insularity, downscale religious schools, and homeschooling in the draft (trading up to get bigotry and superstition).

  8. Blackman writes: “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.”

    Now, it’s true that the case wouldn’t “necessarily” be persuasive precedent for future cases. But it sure seems far more likely to me than not that it would be persuasive. (That could cut in either side’s favor but would likely cut in favor of future defendants.)

    Once precedent is set in a couple of cases, I would think that trial judges in either state of federal courts would start handing out sanctions against plaintiffs and put a stop to enforcement suits.

  9. “Braid could also remove the case to federal court based on diversity jurisdiction…”

    Isn’t Braid a Texas citizen? He can’t remove under the local-defendant rule, though that rule is waivable. (If Braid tried to remove and Stilley didn’t seek remand, that would be pretty decent evidence of an alignment of interests and thus no true case or controversy.)

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