Abortion rights activists rallied at the Texas State Capitol on September 11, 2021 in Austin, Texas.
Alan Braid, the Texas doctor who declared that he had performed an abortion in defiance of Texas’s “bounty hunter law,” just won a favorable ruling in a case against him. But in this unusual lawsuit, that’s not the outcome for which Braid had been hoping.
Texas S.B. 8, also known as the “Texas Heartbeat Act,” took effect in September 2021 after the U.S. Supreme Court refused to block it. It is a civil law that permits anyone who is aware of an abortion that occurred in Texas to sue any party who “aids or abets” the abortion and collect compensation of $10,000. Felipe Gomez, an Illinois lawyer with a suspended license to practice, sued Braid under S.B.8.
Gomez was not a true foe of Braid’s. Rather, Gomez said he waged his legal battle so for the purpose of allowing Braid an opportunity to challenge Texas’ restrictive statute.
In September 2021, before SCOTUS ruled in Dobbs v. Jackson Women’s Health, Braid wrote an op-ed in the Washington Post in which announced that he had ended a pregnancy in violation of S.B. 8. Gomez sued Braid under the law, then explained to press that his motivation had been to give Braid the chance to test S.B. 8 in court. “I don’t have a difference with the defendant,” Gomez told the Chicago Tribune in 2021. “The difference is with the writer of the law.”
San Antonio judge Aaron Hass dismissed Gomez’ case Thursday, and that dismissal pointed to a central problem with S.B. 8: it has the potential to allow the wrong people to wage abortion lawsuits. Hass announced the dismissal of Gomez’s case from the bench and explained that plaintiffs like Gomez, who have no connection to the prohibited abortion and have not been harmed by it, do not have standing suit under the statute.
Standing is the legal requirement in all lawsuits that the plaintiff seeking judicial remedy be actually harmed by the defendant’s alleged wrongdoing. Since the case was thrown out on standing, the law could not be challenged on the merits.
When Gomez initially filed his case, S.B. 8 was the most restrictive abortion law in the nation. Now that the Supreme Court has overturned Roe v. Wade, Gomez’s case is set against a very different backdrop. Most abortions in Texas are illegal, so the need to use a statute like S.B. 8 to create a private right of action against providers has largely been neutralized.
However, Gomez plans to appeal Thursday’s ruling. As a result, a future ruling could test some outer limits of the law. For example, a plaintiff other than Gomez — one who does have a direct connection to an abortion — could have the kind of standing that Gomez lacked, which would pave the way for the underlying legal challenge to proceed.
[Photo by Jordan Vonderhaar/Getty Images]