Dr. Braid Checked For Cardiac Activity Before Performing The Abortion

The Center for Reproductive Rights confirms that Braid knowingly violated the law.

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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.

NEXT: Supreme Court Will Stick with Some Seriatim Argument This Fall

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  1. “…Braid’s op-ed in the Washington Post was vague about whether he actually performed an abortion after detecting cardiac activity.”

    Not really.

    The allegation that Braid could could have been being cagy about whether he had actually violated the law was always nonsense. SB8 requires that heartbeat be checked for in any legal abortion and says that the abortion is illegal without any specification as to the age of the fetus. Braid’s statement that he had performed an abortion beyond the SB8 limits necessarily implied that he had either not tested for a heartbeat or found one. Blackman’s agreement with the National Disgrace Ed Gillespie hack was always just silly.

    1. Right. As well, if you wanted to set up a test case by violating some part of SP8, the last part you’d want to violate would be that heartbeat check.

      First, it would set up doubt about whether you had actually violated the real criteria of SB8, gestational stage/viability, allowing the case to be resolved without addressing that.

      Second, the requirement you do that test is probably on a LOT solider ground, legally, than the other part. That’s normal regulation, really.

  2. “Roe v. Wade, which granted women the constitutional right”

    An honest statement.

    Unlike the rest of our rights, which are granted by our Creator and guaranteed by the state.

    1. Creator? You mean God? Keith Richards?

      1. Just quoting the Declaration of Independence. You may wish to read it before posting snarky comments.

        1. We disagree less than you appear to apprehend. The Declaration of Independence referred to the Creator. Keith Richards.

          If you contend I am wrong about Keith, the only other candidate available is reason (in the form of the Big Bang*, at least at one point). And whether the Creator is reason or Keith Richards, my Creator can beat up your Creator . . . If for no other reason than that my God is real.

          *. Of course, Keith Richards gave us A Bigger Bang. If this is difficult to parse, just recognize that theology can be hard.

      2. Don’t project. It’s you, not he, that believes any idiotic headline is the Gospel Truth.

    2. “Unlike the rest of our rights, which are granted by our Creator”

      So, in that case, you think mom reached the right decision?

  3. We can only imagine his giddiness upon hearing that heartbeat just before he snuffed it out forever.

    And another left-wing hero is born (no pun intended).

    1. Notably absent from what we must imagine are your fallacies.

      1. When you spit your applesauce on the screen it doesn’t necessarily cohere into anything intelligible.

        1. In this case it did, and in this case you missed it.

          1. It’s been pointed out to you that your reply was unintelligible.

            Nobody “missed” your meaning. What you wrote had no meaning.

            You have now demoted yourself from “Careless” to “Moronic”.

        2. “When you spit your applesauce on the screen it doesn’t necessarily cohere into anything intelligible.”

          Whereas your applesauce is inerrant?

          1. That is not remotely a question raised by what I said.

            But you think raising it is effective snark.

            So sad to be you.

    2. “We can only imagine his giddiness upon hearing that heartbeat just before he snuffed it out forever.”

      Well, you don’t seem to have a problem imagining it, so there is that.

    3. “We can only imagine his giddiness upon hearing that heartbeat just before he snuffed it out forever.”

      Since the fetus doesn’t have a heart yet, it doesn’t have a “heartbeat”. It has a “sound made by blood being moved through a contracting blood vessel that will, in 4-6 weeks, become a heart”. Great marketing, but not even close to accurate.

      But your sense of self-righteous superiority is very clear. If only there was something in a religious text about pride.

      1. The heart forms and begins functioning before week 6, so unless this baby that was aborted after it was more than 6 weeks old in challenge to the law was actually less than 6 weeks old (due, undoubtedly, to wibbly wobbly timey wimey stuff), then it would have had both a heart and a heartbeat. It certainly wouldn’t have had to wait 4-6 weeks more for one.

        Of course, at 6 weeks, it is technically still an embryo, not a fetus, as that change in categorization of human growth doesn’t happen until week 8 or 9.

        As you said: not even close to accurate.

  4. The people who need to be checked for cardiac activity are the heartless, fetus-worshipping Texas legislators who don’t care how badly this law hurts women.

    1. Persons who don’t get aborted may feel differently about the TX legislators than you do.

      The “hurts women” bit is, otoh, mostly imaginary.

      1. You try carrying to term a pregnancy you don’t want and then tell us there was no harm.

        1. Compared with having your brains sucked out, usually not much.

          1. Yeah, that doesn’t happen for non-health-related reasons. The last time a late-term abortion was performed was almost a decade ago. And even that long ago, it was almost never done.

            But the anti-liberty folks would have us believe that it is a daily occurrence at clinics.

            1. Sorry, a late-term abortion for something other than the mother’s health.

    2. I find the law misguided. It will birth millions of Democrat tax sucking parasites, with their crime, their bastardy, their underperformance. Most abortions are diverse.

    3. Actually they do care. About half the aborted ARE women, aren’t they?

      1. Something which is not legally a person, cannot legally be a woman.

        1. And, obviously today, things which aren’t biologically women can legally be women. But I wasn’t speaking of whether the law was acknowledging that women were being harmed, merely of whether they actually were being harmed.

          1. Brett, this is an awful argument. It requires such a broad scope as to be ridiculous.

            One can like one distinction involving women and not like another. Not all distinctions involving women are the same.

            1. “Not all distinctions involving women are the same.”
              /whoosh!
              Indeed, they are not. That was HIS point.

      2. No, they were potentially women, just as an acorn is a potential tree.

        1. Technically speaking, they were “just” female humans. Women refers to adult female humans.

          But Women’s rights often extends to those female humans who are not of adult age.

          1. So you do think acorns are oak trees.

            1. Teeny, tiny, cute little oak trees.

            2. If you want to argue that female genital mutilation doesn’t violate women’s rights, because the people which it’s being done to aren’t women….

              That’s on you. You can keep making bad analogies about acorns…

              1. Good thing zero people argued anything like that.

                You, on the other hand, fail arborism forever.

                1. You basically did. You argued that women’s rights don’t apply to non-adult female humans with your stupid acorn analogy.

                  I pointed out the clear flaw in your reasoning.

                  If you want to stand by your flaw, go ahead.

                  1. Acorns are not children in this analogy, AL.

                    Try again.

                    1. We’ll do a simple question for you.

                      Female genital mutilation in female humans who have not reached adulthood violates women’s rights.

                      Yes or no. Which one do you pick?

                      I’ll assume if you avoid the question, you pick no, it doesn’t violate women’s rights.

                    2. You got me. I’m going to doge the question so clearly I love FGM.

                      It’s a clue when you start to talk about ‘female humans’ and yet are trying to talk about rights.

                      The question of personhood is not a biological one, it is a philosophical one.

                    3. Armchair Lawyer, you’re not drawing a distinction between underage and unborn. While both of those words begin with the same two letters, they mean different things.

                    4. Yes Sarcastro, “I got you” because your position is inherently flawed, and when forced on it, you can’t defend it in any reasonable way…so you look to avoid the subject, rather than concede the point.

                      Krycheck,

                      You’re incorrect. “Underage” includes “unborn” as a subset, by definition in this context.

                      As I’ve pointed out, “Women’s rights” often extend to those individuals who aren’t adult women yet…for example FGM. Let’s continue on those disturbing lines. Let’s say, that rather than have FGM occur on girls between infancy and adulthood, a particularly “inventive” person decided to perform FGM in utero.

                      Would you say that wouldn’t involve Women’s rights?

                    5. “Acorns are not children in this analogy, AL.”

                      The analogy was obviously precisely to pre-birth children.

            3. Sarcastro : So you do think acorns are oak trees.

              That was something of a bite-your-own-backside Sarcastroic rejoinder.

              An acorn is an oak nut, ie seed plus protective cover – the earliest stage in the lifecyle of an oak. It’s alive, it’s an oak, and it grows into an oak tree without any help from anyone else. An oak tree is the mature stage of the lifecycle of an oak. It’s the same living organism throughout. An oak tree grows out of an acorn.

              Here’s a foolish guy explaining the obvious, totally unaware that he’s about to get cancelled for suggesting that acorns and oak trees are different stages of the same thing :

              https://www.hunker.com/12000166/life-cycle-of-oak-trees

              An oak tree is a long-lived organism. As with any living thing, though, the oak tree’s life is something of a gamble. Even after surviving the acorn stage, there are threats. The young seedling could be eaten by a deer, burned in a fire or bulldozed by humans. If chance is on its side, the oak seedling will grow through the sapling stage to become a small tree and eventually begin flowering and producing acorns of its own. If and when it does, and when just one of those acorns survives and grows into a mature tree, the life cycle of the oak tree will be complete.

              And thusly with humans. The adult human (the mature form – the human “tree”) grows from the zygote (the earliest form – the human “acorn”) but it is the same living organism throughout.

              So an acorn is not an oak tree for the same reason that a fetus (or a toddler) is not an adult. “Tree” and “adult” do not refer to the organism throughout its lifecycle, just to the mature form.

              The big difference is that oaks, when they’re at the acorn stage, do not have to worry about abortion. They have to worry about being eaten by hungry deer, pigs, squirrels etc. Perhaps scariest of all is being hunted down and eaten, or turned into “coffee” by eco-freaks with straggly beards and phobias about food additives.

  5. Prof. Blackman you seem to claim that a defense of unconstitutionality that is upheld on appeal would not be precedential. Can you elaborate?

    1. It’s some semantic bullshit he has about this. Obviously, if a defense of unconstitutionality is affirmed on appeal, that controls all courts under the appellate court. So if Suoreme Court I’d Texas affirms unconstitutionality of the law (which it won’t because they will ignore federal precedent), the law would not be enforceable in Texas. It’s a semantic game he’s playing

      1. If he is trying to draw a distinction between “unenforceable” and “effectively invalid” then that is too fine a line for me. I wondered if it were something less angels-on-a-pinhead, e.g. federal courts in Texas would not be bound by state court precedent on a federal question so a diverse plaintiff could still file there.

        1. Right. It’s exactly what he’s doing. On a diverse plaintiff suing a doctor in federal court, they’d have to show Article III standing still and it’s not clear to me that they could. Interesting issue. (I am not talking about DJ actions by abortion groups etc., which are different – I am talking about these bounty actions.)

          1. Texans wrote the rules the way they are, let them figure out.

    2. I went with too-cute attempt to create a narrative that “the New York Times falls into the trap that the two pending cases could somehow invalidate the statute in its entirety” from the actual words in the NYTimes of “effectively invalidate”. Those aren’t the same thing, and “effectively invalidate” is going to be understood by most readers as “making the controversial citizen-suit aspect unenforceable”.

      If there was an attempt to make a more solid and/or nuanced point, I’d be interested to hear it as well.

      1. If there was an attempt to make a more solid and/or nuanced point, I’d be interested to hear it as well.

        Nuance is not exactly the good Professor’s thing …

    3. “you seem to claim that a defense of unconstitutionality that is upheld on appeal would not be precedential. Can you elaborate?”

      Wishful thinking.

    4. This is of a piece with Prof B’s position that Shelley V. Kraemer only bound the parties to that case. That argument has not carried the day.

  6. Diversity jurisdiction would support removal of the Arkansas plaintiff´s suit to federal district court. Dr. Braid could there counterclaim for declaratory relief and preliminary and permanent injunctions, impleading the State of Texas as a necessary party to the declaratory judgment action.

    There is an unseemly reluctance on this blog to acknowledging that Roe v. Wade and Planned Parenthood v. Casey are still good law unless and until overruled by SCOTUS.

    1. Good law or law of the land? Those aren’t necessarily the same thing.

      1. Do you propose to relitigate Marbury v. Madison?

        1. Roe and Casey aren’t remotely as hoary as Marbery.

          Roe overturned precedent, so you can scarcely defend it from overrule by appealing to the inviolate nature of precedent.

          1. What precedent did Roe overturn? Give us a citation.

              1. 64 minutes in the middle of the night? Give him a chance to eat his Boo Berries.

                1. Responding to a comment made all of 5 minutes previous. Presumably, he could have found time for Boo Berries before starting posting.

                  1. I suppose he could have said OK but its not a “super-precedent”

            1. By 1973 abortion, and the provision of abortions, had reached SCOTUS many times without triggering any declaration of the Court akin to Roe. The idea that Roe didn’t overturn precedent is ludicrous. Obviously no proof of this will be sufficient to extract from you acknowledgement of the obvious, so I will not devote any effort to one.

              1. I asked for a citation. I’m unsurprised that you are unable to give one.

              2. Ipse dixit now.
                Ipse dixit tomorrow.
                Ipse dixit forever!!

              3. By 1973 abortion, and the provision of abortions, had reached SCOTUS many times

                It had not. You should quit when you’ve made it clear you know nothing of law or history.

        2. As long as we’re begging the question:

          “Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government?”

          https://caselaw.findlaw.com/us-supreme-court/5/137.html

      2. “Good law or law of the land? Those aren’t necessarily the same thing.”

        In this instance, though, they are.

    2. And what act would the State of Texas be enjoined from if it were a party?

      1. Entertaining suits for relief under SB8. Judicial action is action under color of law.

    3. “Diversity jurisdiction would support removal of the Arkansas plaintiff´s suit to federal district court.”

      Stilley filed in Texas.

      Here’s his brief: https://www.yahoo.com/news/arkansas-man-sued-texas-doctor-234752269.html

      1. Stilley, an Arkansas citizen, sued a Texas citizen seeking damages of $100,000. The requisites of diversity jurisdiction are met.

        1. Jurisdiction but not removal once the defendant has been served, thanks to the forum defendant rule.

        2. But not standing under Article III.

          1. Hard to argue that a guy being sued lacks standing.

            1. I suppose the plaintiff could attack his own standing in opposing a removal.

            2. Hard to not notice that you’ve chosen to try to divert attention from the forum defendant rule against removal by addressing only the vaporous “standing” assertion.

            3. Silly to argue that, because the actual argument is that the guy doing the suing lacks standing in federal court, and therefore the federal court lacks jurisdiction.

          2. Which technically would not prevent removal but would trigger remand back to the state court under 28 U.S.C. §1447(c), possibly with removal costs awarded to the plaintiff.

      2. “Stilley filed in Texas.”

        Isn’t he on house arrest?

  7. Hope he enjoys a really warm place…

    1. Texas? Summer is over.

  8. It’s fun to read the comments on this WAPO story, just to see how little Liberals understand how the law, and SCOTUS, work.

    1. Not to mention, how little Conservatives understand.

  9. It’s like watching somebody capturing a black man and holding him in slavery to “test” the 13th Amendment.

    1. In Georgia, they’re getting ready to try a case where a couple of white dudes chased down a black fellow and shot him in the street. Not quite the same thing, but arguably likely what would happen if you tried to impress one into slavery today.

      1. Said black man (Ahmaud Arbery, immediately after committing a criminal trespass) charged at Travis McMichael and grabbed the barrel of McMichael’s shotgun and attempted to wrest it away from him while striking him with his other fist, before being shot in self-defense. So, yeah, “Not quite the same thing”.

        1. Which he did after being held against his will at gunpoint by McMichael and co. He had a clear right to defend himself against that unlawful detention, and arguably, it wouldn’t have been a crime if he’d shot McMichael while wrestling for the shotgun. (But McMichael shooting him definitely was, because he created the situation, violated Arbery’s rights by doing so, and reasonably put him in fear of his life).

          No sane person should be defending McMichael’s actions. It’s like defending a bank robber for shooting someone because that someone went for the bank robber’s gun.

          1. Reading the wikipedia article, it sounds like a citizen’s arrest gone bad; The neighborhood had suffered a series of thefts committed by somebody who looked like Arbery, and were on the look out for him showing up again. The defense was barred from introducing any evidence to the effect that McMichael and company had actually had a basis for detaining him.

            Unlike the police, regular citizens don’t get any kind of immunity when they arrest somebody, but instead labor under a presumption that the act is criminal which they have to rebut. If police had acted exactly the same under identical circumstances, they’d probably have walked.

            1. “it sounds like a citizen’s arrest gone bad”

              Shooting people dead in the streets sounds like citizen’s arrest to you?

            2. Arbery ‘looking like’ someone the neighborhood thought committed crimes in the past is not sufficient to justify a citizens arrest. You generally have to witness the commission of a crime, and detain them while the crime is in process.

  10. If you are working under the premise that unConstitutional laws are void ab initio, how does a ruling that SB8 is unConstitutional not foreclose further suits using SB8 as cause of action?
    Has Prof. Blackman assumed that not just Roe v. Wade is overturned, but so has Marbury v. Madison?

  11. People who knowingly kill unborn humans are very sick individuals, even more so when it is “something I believe in very strongly.”

    1. Wow. What a persuasive argument you’ve put forth! There’s almost no practical way that you won’t convince someone that you’re right!

      1. Not an argument, just an observation.

        1. Not an observation, just an opinion.

  12. I’m noticing a distinct trend away from engagement and towards pure moralizing from the pro life side around here.

    Not sure what that means.

    1. Nothing about your line of yap invites “engagement”, only derision.

      1. Such a master of wit and skillful argumentation, you are.

        (wishing you were)

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