The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Dr. Alan Braid's op-ed in the Washington Post was vague about whether he actually performed an abortion after detecting cardiac activity. The Center for Reproductive Rights confirmed to the New York Times that Braid did check for cardiac activity.
All was quiet until Saturday, when Dr. Braid wrote in The Washington Post that he had performed an abortion on Sept. 6 to a woman who was "beyond the state's new limit." He knew he was inviting lawsuits, he wrote, and "taking a personal risk, but it's something I believe in strongly."
Marc Hearron, senior counsel for the Center for Reproductive Rights, an abortion rights group that represents Dr. Braid, said the doctor performed an ultrasound that detected cardiac activity before performing an abortion, meaning the procedure did in fact violate the new state law.
Alas, the New York Times falls into the trap that the two pending cases could somehow invalidate the statute in its entirety.
The two lawsuits allow Dr. Braid, and those representing him, to assert the argument that the law is unconstitutional under both Roe v. Wade, which granted women the constitutional right to an abortion, and Planned Parenthood v. Casey, which upheld it. If that defense is accepted on appeal, legal experts said, the cases could yield precedents effectively invalidating the Texas law — a significant loss for the anti-abortion movement.
None of these lawsuits can have that effect. And don't forget the severability clause.