Key Part Of Texas Abortion Law—That Anyone Can Sue

Topline

A central part of Texas’s six-week abortion law—that bystanders who aren’t connected to an abortion can still sue anyone who performs or facilitates one and receive up to $10,000 in damages—was reportedly rejected Thursday by a state court in the first test of the ban, according to the abortion rights group representing the defendant (the court record is not yet available to the public).

Pro-abortion rights demonstrators protest outside of the US Supreme Court in Washington, DC on … [+] November 1, 2021.

Anadolu Agency via Getty Images

Key Facts

A state judge in Bexar County, Texas, threw out a lawsuit brought against Dr. Alan Braid, an abortion provider in Texas who confessed in a Washington Post op-ed that he had performed an abortion despite Texas’ SB 8 law, which bans all abortions after approximately six weeks of pregnancy and is enforced through private lawsuits.

The lawsuit, brought by former Illinois attorney Felipe Gomez in September 2021, is one of several that were brought in court against Braid—so far the only defendant who’s known to have been sued under the law—and the first major ruling issued in a lawsuit brought under SB 8.

The state court found Gomez didn’t have standing to sue because he wasn’t directly impacted by the abortion, according to the Center for Reproductive Rights, which represented Braid.

The court’s ruling won’t overturn SB 8, but the Center for Reproductive Rights called it a “significant win,” as it sets a precedent that might make it more likely courts deciding future lawsuits brought under SB 8 will shut them down.

Gomez filed the litigation despite actually being opposed to SB 8, describing himself in the lawsuit as a “pro-choice plaintiff” and asking for the court to find the law unconstitutional, rather than award him the $10,000 in damages that SB 8 expressly allows.

Gomez told Forbes in an email he is waiting until he receives a copy of the court order dismissing the case before he comments on the decision.

Crucial Quote

“When I provided my patient with the care she needed last year, I was doing my duty as a physician,” Braid said in a statement.

What To Watch For

The ruling throwing out the case was issued verbally from the bench during a hearing Thursday, and the Center for Reproductive Rights reports that a written order will come at some point in the next week. The order will have no effect on the law beyond dismissing Gomez’s case, and Texas has separate abortion laws criminalizing the procedure that also remain in effect. It’s obviously unlikely Gomez will appeal the ruling, so Thursday’s decision will remain intact. Braid still faces multiple other lawsuits in state court, including one brought by Arkansas attorney Oscar Stilley, who, unlike Gomez, wants the court to award him damages. The doctor countersued Gomez, Stilley and Wolfgang P. Hirczy de Mino, who also sued Braid under SB 8, in federal court in response to their lawsuits. That litigation was dismissed in September, but court records show Braid is appealing the decision.

Key Background

Texas’ SB 8 took effect in September 2021, becoming the most stringent abortion restrictions to take effect in the U.S. until the Supreme Court overturned Roe v. Wade in June and sparked more abortion bans nationwide. The law was an attempt to ban abortion without having the law be struck down in court, as enforcing the ban through private lawsuits rather than through the state makes it harder for opponents to name defendants who a court can actually block from enforcing the law. The Supreme Court allowed the law to stay in place in December 2021, and other states went on to pass their own copycat bills that are similarly enforced through private lawsuits. While Texas abortion providers broadly stopped providing abortions after six weeks once SB 8 took effect, Braid said in his Post op-ed that he performed an abortion as an act of protest and he “wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.” Though Texas and other states have now enacted abortion bans that outlaw the procedure outright and make it a criminal offense to perform an abortion, SB 8 and the similar bills it inspired remain in place, making it possible any physician who performs an abortion could face private civil lawsuits on top of criminal penalties.

Tangent

Gomez has had his law license suspended indefinitely in Illinois after sending “threatening and harassing email messages” to attorneys in three separate legal matters, the Illinois State Bar Association reported in September. In his email to Forbes, Gomez characterized himself as a “retired (not currently suspended) former attorney.”

Key Part Of Texas Abortion Law—That Anyone Can Sue—Apparently Dismissed By Court