What do these three people have in common: a disbarred Arkansas attorney under federal house arrest for tax evasion; another disbarred attorney, this one from Illinois, who lost his license for harassing and threatening other lawyers; and an attempted fire bomber from Kansas who served time in federal prison for conspiracy? Here’s the answer: All three of them have heeded Texas’s call for legal anarchy and filed complaints against a San Antonio abortion provider for violating SB8, the state’s ban on post-6 week abortions.
This is a circus of Texas’s own making. To briefly recap, earlier this year Texas passed a one-of-a-kind law that bans abortions after 6 weeks and allows anyone anywhere to sue an abortion provider who violates the law. The 6-week ban isn’t novel. Other states have passed similar bans, and they have all been stopped by courts because they are blatantly unconstitutional. The original part of the Texas law is the provision that bars the state from enforcing the law and instead allows anyone to sue for a violation of the law. It is this unique aspect of the law that has so far made it very difficult to stop in court.
But what this provision also does is allow anyone anywhere to make a mockery of Texas’s legal system, and that’s precisely what started Monday. As anyone familiar with our legal system knows, in almost every other context, in order to sue, you need to have some direct stake in the outcome of the case. If my neighbor gets into a car crash, my neighbor can sue the offending driver, but I can’t, no matter how much I am upset that my neighbor is injured. This is the stuff of Law 101 courses.
Texas’s law throws out this requirement and allows complete strangers to sue abortion providers (and those who aid and abet them) for $10,000 or more for each unlawful abortion. It was long apparent that this part of the law completely upends the legal system, but Monday’s filings brought into sharp focus just how disruptive this scheme will be. Consider the three complaints filed Monday after San Antonio doctor Alan Braid admitted over the weekend to violating SB8 because of his ethical commitment to his patients:
Oscar Stilley filed the first complaint. Stilley is a self-described “disbarred and disgraced former Arkansas lawyer” who is in the 12th year of a 15-year federal sentence for tax evasion and conspiracy. His SB8 lawsuit relitigates his federal criminal conviction (“the final judgment and commitment order was based upon false testimony”) and does what any good internet troll does — promotes his own blog (where he chronicles his efforts to get “total exoneration”). Only after recounting his own legal struggles does he get to abortion. Stilley correctly notes that the statute does not require any injury to the plaintiff, so he argues he can properly bring this suit for the doctor’s unlawful abortion.
But wait, there’s more! After going through the basics of SB8, Stilley goes off the rails. He claims that the doctor is “kind and patient and helpful toward bastards” and “has some understanding of the cruelty and abuse heaped upon bastards and social misfits, in Texas prisons.” Stilley then writes that the doctor’s god “is entirely capable of giving a new body to replace a defective fetus, in the hear and now, and not only ‘when you die bye and bye.’” (If you’re not fully understanding, don’t worry, it’s not you, it’s him.) Stilley concludes by claiming that he called the doctor’s clinic to get the doctor to repent and then asks the court to stop the doctor from performing future abortions and to order the doctor to pay Stilley $100,000.
Interestingly, in an interview with CNN, Stilley said that he opposes SB8 and filed the lawsuit as a way to get a judge to rule on its constitutionality. It would normally be an odd thing for someone opposing a law to sue under the law, but this is exactly what SB8 allows since there are no limits on who can sue. And Stilley wants his money.
Felipe N. Gomez filed the next complaint yesterday, and compared to Stilley’s it’s much less entertaining. It barely reaches a second page and contains just four sentences. Beyond setting forth the basic allegation that the doctor violated SB8, Gomez, an apparent abortion rights supporter, asks the court to declare SB8 unconstitutional and in violation of Roe v. Wade.
Gomez is explicit in his lawsuit about what Stilley said only to the media — he wants the Texas law overturned as unconstitutional. Because the law allows “any person” to sue under SB8, this Chicago resident felt moved to file his own lawsuit and was allowed to. Also unlike Stilley, Gomez leaves out his history as a disbarred attorney. The federal court that covers Chicago disbarred Gomez because he sent multiple other attorneys “harassing and threatening communications.” Gomez appealed this discipline to federal court, which affirmed his disbarment based on the court’s “authority to control abusive conduct.”
Cheryl Sullenger filed the third complaint, and this one is a bit different. Rather than file a lawsuit in court, Sullenger filed a complaint with the Texas Medical Board attempting to revoke the doctor’s license for violating SB8. Sullenger wrote that “instead of providing the civil lawsuit he apparently craves,” she was trying to take away his license.
Sullenger’s complaint is interesting for two reasons. First, hers is the only one from an anti-abortion activist. Sullenger is the Senior Vice President of Operation Rescue and has served time in jail for conspiring to bomb an abortion clinic and is alleged to have been an associate of the extremist who assassinated Dr. George Tiller in Wichita because of his abortion practice. Second, as a legal matter, because Sullenger filed with the licensing board rather than in court, her complaint could inadvertently give SB8 challengers an avenue to strike down the law. It has proven challenging to stop SB8’s private lawsuits in state court before they happen, but because the medical board is not a court, it could potentially be easier to sue to stop the board from taking actions that violate Roe v. Wade.
Dr. Braid now has these (and any other future) lawsuits to defend against, giving him his sought-after opportunity to make his case about the unconstitutionality of SB8 in state court and to the state licensing board. As long as Roe is the law of the land, he will certainly win these cases. But as long as SB8 is the law in Texas, crazy litigants and lawsuits like these will fill and possibly overwhelm the court system. And Texas has no one to blame but itself.
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