Women's Fightback: Test case for Texas abortion ban

Submitted by martin on 21 September, 2021 - 6:53 Author: Katy Dollar
Texas abortion rights protest

A San Antonio doctor who said he had performed an abortion in defiance of Texas’s new law has been sued, setting up a potential test case for the law.

In an opinion piece in the Washington Post, “Why I violated Texas’s extreme abortion ban”, the doctor, Alan Braid, who has been performing abortions for more than 40 years, said that he performed one on 6 September for a woman beyond the state’s new limit.

“I acted because I had a duty of care to this patient, as I do for all patients, and because she has a fundamental right to receive this care,” Dr. Braid wrote. “I fully understood that there could be legal consequences — but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.”

The law prohibits abortions once doctors can detect cardiac activity, which is usually around six weeks. The law makes no exception for pregnancies resulting from rape or incest. Prosecutors cannot take criminal action against Braid or other doctors providing abortion services, because the law explicitly forbids that. Enforcement is through lawsuits brought by private citizens, who are entitled to claim at least $10,000 in damages if successful.

Oscar Stilley, the former attorney in Arkansas who filed one of the lawsuits, has said he is not personally opposed to abortion and sued in order to force a court to review the ban.

“If the law is no good, why should we have to go through a long, drawn-out process to find out if it’s garbage?” Stilley said.

Dr. Braid’s clinics are among the plaintiffs in a pending federal lawsuit seeking to overturn the measure. On 1 September, the US Supreme Court, prompted by the lawsuit, declined to block the new Texas law in a 5-4 vote. The majority stressed that it was not ruling on the law’s constitutionality and did not intend to limit “procedurally proper challenges” to it.

On Tuesday, the Justice Department asked a federal judge to issue an order that would prevent Texas from enforcing the law, known as Senate Bill 8, which was passed with the strong support of the state’s Republican leaders. The Justice Department argued in its emergency motion that the state adopted the law “to prevent women from exercising their constitutional rights,” reiterating an argument the department made last week when it sued Texas to prohibit enforcement of the contentious legislation.

The courts have protected safe, legal abortion throughout the United States since 1973, when the U.S. Supreme Court affirmed access to abortion as a constitutional right in its Roe vs. Wade decision.

Attacks on Roe vs. Wade began to ramp up in 2011, when anti-abortion politicians made massive gains in federal and state elections. Since then challenges to safe, legal abortion have grown. In some places, abortion restrictions have in fact made abortion much harder to access. These restrictions fall especially hard on people with low incomes, for whom the cost of transportation, childcare, and taking time off work often combine to put abortion access out of reach.

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