Texas and the doctor who defied SB8 (#23)
Why one doctor got sued under the state's new anti-abortion law—on purpose.
Last month, Dr. Alan Braid, an OBGYN based in San Antonio, put out an op-ed in the Washington Post: he had performed an abortion on a woman in Texas, the doctor declared. This shouldn’t have been news since the Supreme Court (SCOTUS) decided that abortion care was a right protected under the U.S. Constitution in the historic 1973 Roe v. Wade ruling. But Texas had just passed a new abortion law known as SB8 that essentially banned abortion in the state, right before the doctor claims he had performed an abortion. That made what Dr. Braid did illegal, at least in Texas.
The essay in full is worth a read but here’s an excerpt in which the renegade doctor describes the type of clients who came to his clinic for abortion care:
Though we never ask why someone has come to our clinic, they often tell us. They’re finishing school or they already have three children, they’re in an abusive relationship, or it’s just not time. A majority are mothers. Most are between 18 and 30. Many are struggling financially — more than half qualify for some form of financial aid from us.
Several times a month, a woman confides that she is having the abortion because she has been raped. Sometimes, she reports it to the police; more often, she doesn’t.
Dr. Braid’s op-ed went viral and he got sued by two individuals under the context of violating Texas’s abortion law.
You might be wondering: why the heck is a law like SB8 allowed to exist when abortion is legal in the U.S.? Why did Dr. Braid out himself in that op-ed? More importantly, did the doctor deliberately expose himself to get sued as part of a larger strategy to help protect abortion rights in the country?? So. Many. Questions!
First, let’s step back and dig into what the Texas abortion law actually is before we get into the politics around Dr. Braid’s situation. I’m not going to get into the weeds but there are two basic components you need to know about the law: one, that it bans abortions on pregnancies after “cardiac activity is detected” even in instances of rape or incest. Ignoring for a second how disgusting this part of the law is—also deviously nicknamed the “heartbeat bill” by anti-choice folks—the time date of pregnancy that they attached to the bill was a sneaky way for conservative lawmakers to outlaw abortion without actually saying they are banning ALL abortions. How so?
Well, a fetus’s “cardiac activity” usually shows up around the six-week pregnancy mark. Medical experts argue that the law is an outright abortion ban anyway because it is very difficult to catch a pregnancy that early on. Most people don’t find out until they are about six weeks pregnant (this is around the time they would notice a change in their menstrual cycle or other visible changes to how their body is acting). So, under this law, if a person wanted to terminate their pregnancy they wouldn’t legally be able to do so simply because some people just wouldn’t catch it in time.
The second component of SB8 is its bounty-style reward against anyone who supports an abortion. Here, the law allows any individual to sue a person or group who performs an abortion on someone or supports them in any way to do it. So, any random person could technically sue and win damages against an Uber driver who drives someone to an appointment for example, or a person who donates to an abortion fund. It’s a vigilante-like system intended to have a chilling effect against the support systems (clinics, friends, family, doctors) around people who seek abortions, and so far it’s worked.
Now, here’s the gag: nobody is questioning the fact that the Texas abortion law is in fact unconstitutional. This point is, like, broadly agreed on by everyone— and it’s the reason that SB8 was carefully crafted to avoid landing in court under review as an abortion ban. For example, that outrageous wild west bounty that anyone can claim by suing against abortion can’t actually be applied against the person who received the abortion, but instead only against the people who supported them.
Things get weirder when you look closely at the lawsuits against Dr. Braid. In both cases, the individuals suing Dr. Braid said they really don’t care about upending abortion rights, that they are not anti-abortionists. One of them even declared he was “pro-choice” and was just after the $10,000 penalty that individuals are allowed to sue for under the Texas abortion law.
Even more strange is the fact that anti-abortion groups that advocated for the law have been trying very hard to dismiss the lawsuits against Dr. Braid as frivolous. Read that again—the groups that created the bounty law to let anyone sue, are now saying that it’s frivolous to sue! Why would they be arguing against lawsuits that came out of the very law they had championed to halt abortions?? The answer is more complicated than you think.
These anti-abortionists know that if the Texas law actually does get challenged in the lower courts, it’s very likely to get ruled unconstitutional. The entire situation around the Texas abortion law has really just been a long game of cat and mouse by anti-abortionists. The bounty component of the law is so absurd anti-abortionists likely didn’t think anyone would actually sue other people under it. Finding out (and proving) whether doctors or other people are aiding abortion in some way is not really possible in real life without some serious surveillance. The law wasn’t meant to actually be used—anti-abortionists seem to have just wanted the law to have a strong intimidation effect. An actual lawsuit, however, is a threat to that strategy, because it means that courts might now actually review and question the new law.
Which makes Dr. Braid’s op-ed confession—in one of the country’s most famous publications!—all the more curious. Since it seems anti-abortionists are hoping to *avoid* a lawsuit related to SB8 being brought to court, it’s suspected that the doctor essentially confessed on purpose so that he would be sued, landing a challenge to the law inside the court system (pro-choice opponents have also expressed their suspicions of this). The strategy may seem crazy, but it isn’t exactly new. A famous example is the 1896 case of Plessy v. Ferguson, in which a mixed-race activist and his civil rights group orchestrated his arrest on a segregated train specifically so that they could challenge the constitutionality of the U.S.’s Jim Crow concept of “separate but equal” in court.
Another ongoing lawsuit related to SB8 is the U.S. Department of Justice’s lawsuit against Texas because of the law. It’s important to note that, due to the complex justice system, it would be very difficult for an individual to sue the Texas government over its abortion law—even though it’s unconstitutional—in one part due to what’s known as “sovereign immunity.” The DOJ suing Texas is an interesting legal maneuver to this because, as the DOJ argues it, states do not have sovereign immunity against the federal government and the DOJ has an obligation to protect the constitutional rights of citizens, so it should be allowed to sue the state.
So, what happens now? While multiple lawsuits related to abortion are playing out in states across the country, the fate of reproductive rights in the U.S. hinges on one case called Dobbs v. Jackson Women’s Health Organization, which SCOTUS is set to hear in December. Experts say that if the ever-growing conservative SCOTUS rules in favor of Dobbs, the decision would effectively overturn Roe v. Wade and end reproductive rights protections in the U.S. as we know it.
To close, I’ll leave you with some interesting statistics on abortion:
🍉 Abortion isn’t as uncommon as you think. In the U.S., one in four women will have an abortion in their lifetime, according to the Guttmacher Institute, which means you likely know someone who’s had an abortion even if they didn’t tell you about it.
🍉 About 42% of Americans believe that abortion should be permitted whenever a woman decides she wants one, according to data from Statista.
🍉 In 2014, the Guttmacher Institute also found that 59% percent of abortions were obtained by patients who had had at least one birth, meaning people who were already parents.
🍉 Outlawing abortion does not eliminate abortion. Data shows that instead banning abortion care only encourages unsafe abortion procedures. According to the WHO, there are 25 million unsafe abortions that take place around the globe each year, the majority of them in developing countries.
🍉 While the U.S. is looking to restrict abortion rights, other countries around the world are moving to expand them. Roughly 50 countries have moved to legalize abortion in the last two decades alone, according to the Center for Reproductive Rights.
TWEET OF THE WEEK: ON ‘SQUID GAME’ 🦑
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SOME GOOD LINKS
🔥 A lot of incredible revelations have come out of the new “Pandora Papers”—more than 11.9 million confidential files from 14 offshore services firms located in various countries. Among them, that the U.S. is one of the top tax havens in the world. | Forbes
🔥 To fully grasp Christopher Columbus’s genocidal mindset against Native Americans, we need to look at how the European Crusades against Muslims influenced Columbus’ perception of the “New World.” | Los Angeles Times
🔥 A very old white GOP senator congratulated Lucy Koh, a *Korean American* judicial nominee, by mentioning her “people” and their “work ethic.” The model minority myth (and racism) is alive and well on Capitol Hill, folks! | NBC News
🔥 A complete timeline of how NYC’s Los Deliveristas Unidos, a labor organization of immigrant food couriers, pushed the City Council to pass historic legislation protecting rights for delivery app workers. | The City
🔥 Comedian Dave Chapelle’s new cringe comedy special on Netflix is making homophobic and transphobic jokes the centerpiece of his show. Read how one Black gay writer—a longtime fan of Chapelle’s—processed it all. | GQ
🔥 How an investigative report by an independent newsroom in Indonesia sparked solidarity for press freedom and a campaign against the country’s rampant police corruption through #PercumaLaporPolisi. | Coconuts Jakarta
🔥 A rare interview with Prince Turki al-Faisal, Saudi royalty and former head of the Arab kingdom’s intelligence body, about his country’s role in what’s happening in Afghanistan. | New Lines Magazine
🔥 The Philippines’s presidential election is heating up as the crowd of candidates for the top executive spot gets filled by pro-military candidates, including the son of the country’s former dictator. | The Diplomat
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Keep rockin’,
Natasha