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Who would sue a doctor over the Texas abortion law? These guys.

5 minute read

A demonstrator holds up an abortion flag outside of the Supreme Court on Capitol Hill in Washington, March 4, 2020. REUTERS/Tom Brenner

  • THE TEXAS RIGHT TO LIFE COMMITTEE, INC.
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(Reuters) - If the stakes weren’t so high, it would almost be funny.

The first two lawsuits under the new Texas abortion law were filed on Monday against a San Antonio doctor who confessed in a Washington Post op-ed to violating the law’s ban on abortions performed after fetal cardiac activity is detected.

But these would-be citizen enforcers, neither of whom live in Texas, strike me as just about the most unlikely plaintiffs imaginable to lead what could be a test case of the law’s constitutionality.

One lawsuit was brought by Oscar Stilley, a self-described “disbarred and disgraced former Arkansas lawyer” who is currently in home confinement, serving year 12 of a 15-year sentence for tax evasion and conspiracy. He told me he doesn’t even oppose abortion in many circumstances, such as when the fetus is “defective” or “there’s no daddy” to help raise the child.

The other suit was filed by Felipe Gomez, a suspended lawyer from Illinois who in his bare-bones complaint called the Texas law “illegal as written” and asked the court to declare it unconstitutional.

According to a November 2020 opinion by the 7th U.S. Circuit Court of Appeals upholding disciplinary action against Gomez, he was accused of “sending, through emails and voicemails, threatening and harassing communications to other attorneys.” He did not respond to questions for this column.

For proponents of the Texas law, this is hardly the dream team to carry the pro-life banner into battle.

“Both cases are self-serving legal stunts, abusing the cause of action created in the Texas Heartbeat Act for their own purposes,” a spokeswoman for Texas Right to Life, the state’s largest anti-abortion group, wrote in an email. “Neither case is from the Pro-Life movement.”

That may be true. But nothing in the statute says only true believers can file complaints.

The strength – and the Achilles’ heel – of the new law is that anyone (other than state officials) can sue to enforce it.

The law, known as SB8, deputizes private citizens to bring civil complaints against abortion providers and those who aid or abet abortions after about six weeks of pregnancy. If these bounty-hunting plaintiffs win, they’re entitled to at least $10,000 plus legal fees. If they lose, they’ll almost certainly suffer no adverse consequences.

Stilley is keenly aware of this.

“Anybody can bring these lawsuits. Don't matter that I'm disbarred, out of state, I don't even know who this woman (who got the abortion) is. I get to do this,” he told me. "I've got nothing to lose. Just the $295 filing fee."

In his complaint, he asked for $100,000 in damages, “but in no case less than the statutory minimum of $10,000.”

“I’m not counting on it to pay the rent,” he said. “But $10,000 is a pretty good pay day.”

Bringing the suit was something of a spur-of-the-moment decision, Stilley told me. “I couldn’t sleep (Sunday) night and got up at 5 a.m.,” he said. He’d been following news about SB8, which he sees as crafted to evade a judicial ruling. "It made me mad.”

The U.S. Supreme Court on September 1 declined to block the law from going into effect, hampered by questions of standing. That case remains pending in federal court, as does a challenge by the Justice Department.

So Stilley fired off a four-page complaint, filing it in Bexar County, Texas state court at 11:16 a.m., he said. “Somebody is going to do this, might as well be me."

It’s not exactly a conventional document, though.

For one thing, he used the complaint to draw attention to his own conviction, which he claims “was based upon false testimony,” and to his website touting his book “Busting the Feds.”

As for the defendant, Dr. Alan Braid, Stilley wrote that upon information and belief, he “is kind and patient and helpful toward bastards, but ideologically opposed to forcing any woman to produce another bastard against her own free will.”

Other allegations are even more difficult to follow. For example, he asserted that Braid “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.’”

Braid could not be reached for comment. He is represented by the Center for Reproductive Rights, which did not respond to a request for comment.

Stilley told me that he will “probably litigate this myself,” but invited SB8 proponents to “give me your best arguments” or to weigh in as an amicus.

“I want to fight,” he said, vowing to be “a good plaintiff.”

He figures that it’s a win-win. If he succeeds, he’ll get at least $10,000 as a reward. And if he loses, he will have accomplished his goal of compelling judicial review of the law.

“Let the chips fall where they may,” he said. “I want to get an honest decision.”

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Jenna Greene writes about legal business and culture, taking a broad look at trends in the profession, faces behind the cases, and quirky courtroom dramas. A longtime chronicler of the legal industry and high-profile litigation, she lives in Northern California. Reach Greene at jenna.greene@thomsonreuters.com

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