An abortion provider in Texas took the unusual step Tuesday of asking a federal judge in another state to declare unconstitutional the six-week-ban on the procedure that took effect last month in Texas.
Abortion providers and advocates say they are in “legal limbo,” after twice asking the Supreme Court to intervene to block enforcement of the law, which bars abortion as early as six weeks into pregnancy with no exception for rape or incest.
They are awaiting action in the three lawsuits against Braid, as well as word from a federal judge in Austin, who could rule at any time on the Justice Department’s request for an injunction to restore abortion access in Texas.
“Dr. Braid filed suit today to stop the vigilante plaintiffs and get this extreme abortion ban declared unconstitutional once and for all,” Nancy Northup, president of the Center for Reproductive Rights, said in a statement.
“He should never have had to put himself at legal risk to provide constitutionally protected abortion care. This legal limbo has gone on long enough and needs to be stopped.”
The Texas law was crafted to avoid judicial review by empowering private citizens, rather than state government officials, to enforce the ban on abortion once cardiac activity has been detected. Individuals who successfully sue anyone who helps a woman get an abortion receive an award of at least $10,000.
Since the law took effect Sept. 1, abortion providers in Texas mostly have been sending patients across state lines to Oklahoma, New Mexico and Louisiana to terminate their pregnancies.
The Supreme Court allowed the law to stand while litigation continues, in part because of its novel design — even as justices acknowledged “serious questions” about whether it violates the right to an abortion enshrined in past high court decisions.
The justices have not yet responded to the second request from abortion providers to hear their pending appeal on an expedited basis.
But Braid came forward last month, announcing in a Washington Post column that he had performed an abortion past the legal limit and essentially inviting a lawsuit so he could directly challenge the constitutionality of the ban.
Three individuals — one in Arkansas, one in Texas and another in Illinois — quickly filed lawsuits against Braid in state court in Texas.
The Center for Reproductive Rights, representing Braid, now wants to consolidate the “competing claims” in those cases in federal court in Illinois.
Braid’s lawyers say they can take this step because three different people in three different states have filed similar claims to an award of at least $10,000.
“The likelihood of strangers filing multiple, overlapping lawsuits against a provider is a feature of SB8, and not an accident,” the court filing states, making reference to the law, which was formally classified as Senate Bill 8.
Braid said that none of the individuals has a right to damages because the law is unconstitutional under the Supreme Court’s Roe v. Wade decision guaranteeing the right to abortion before viability, usually around 22 to 24 weeks.
Braid also has a right, the filing states, “to avoid wasteful, vexatious and duplicative litigation and potentially conflicting rulings.”