DALLAS — For the first time, the two former attorneys – one in Arkansas, the other from Chicago – discuss their different motivations for being the first to sue over Texas’ new abortion law.
“When I looked at this law, I thought, ‘Oh my goodness, really, is this the best you can do to draft a law, just to let anybody come in here [and file a lawsuit]?’ Well, I guess that that includes me. It doesn't matter that I live in Cedarville Arkansas,” said Oscar Stilley, a self-described ‘disgraced and disbarred’ attorney from Cedarville, Ark. on the newest episode of the Y’all-itics political podcast.
He and Felipe Gomez, from Chicago, Ill., recently filed separate lawsuits against Dr. Alan Braid, a San Antonio abortion doctor, in Bexar County Court.
“The legislature has a right to make restrict who gets to file [a lawsuit], so I think it's an example – and I think Oscar [Stilley] did it to show people – like look what you can get, some yahoos from Illinois and Arkansas and it's a product of writing bad laws,” Gomez said on Y’all-itics.
Earlier this month, in an editorial for The Washington Post, Dr. Braid admitted to performing an abortion in violation of Texas’ new law. Known as SB-8 (Senate Bill 8), the law prohibits abortions after a fetal heartbeat is detected which is about six weeks into pregnancy.
What’s unusual about SB-8 is that the state does not enforce it. Rather, the law states, anyone can sue a person who provides an abortion and, if they prevail in court, even be eligible for $10,000 in statutory damages.
“The big reason I filed on this thing is because I see a law passed by the Texas Legislature that is designed to do an end run about around judicial review and I just don't think that's fair. I don't think that's right,” Stilley continued on the podcast.
Stilley and Gomez are the first to test the law by filing lawsuits individually.
“You just can't just have the whole world to bring lawsuits. That's been established law for a long time, and they established jurisprudence on abortion rights. Let's respect that until it's changed in the legal way,” Stilley added.
He said he disagrees with the enforcement mechanism of SB-8 but will happily collect $10,000 should he prevail in a San Antonio courtroom.
“If there's a $10,000 pot of gold at the end of this rainbow, I want it. Why shouldn't I get it,” Stilley said. “I'm not banking on this for the rent money, if you know what I mean. I can't find a single legal expert out there of any understanding whatsoever that thinks it's a valid, even the proponents. I don't think it's a valid law.”
In Illinois, Gomez has a different motivation for filing the lawsuit. He is not seeking a financial payout. Instead, Gomez is pro-choice and said he hopes Dr. Braid wins.
“Yeah, my mom is a doctor so I wouldn't even dream of suing doctors. And I didn't practice that field,” Gomez said.
The threat of legal action by SB-8 has virtually stopped all abortions in Texas.
But why are two disbarred attorneys the first to challenge the law? Why haven’t pro-life groups filed similar action? Gomez said he thinks he knows the reason.
“A practicing attorney has an active oath to obey state law and you also swear to obey federal law. So, when he goes to sign a complaint under SB-8, he's got to ask himself, does this violate Roe versus Wade? And even if it doesn't matter his political position, if he's honest with himself, he's got to say yes, it does. So, he can't sign it. I think that fact that when nobody filed lawsuits shows that you got some good attorneys down there in Texas, in my opinion,” Gomez explained.
But SB-8 and the lawsuits brought by Stilley and Gomez are just a sideshow to another case that the U.S. Supreme Court is considering now.
Josh Blackman, a professor of law at the South Texas College of Law in Houston, said justices are soon expected to rule on a Mississippi law that bans abortions after 15 weeks.
If justices uphold that Mississippi law, then it would automatically become law in Texas, too.
Until then, the U.S. Department of Justice is suing Texas to eliminate the legal threat and restore abortion services to Texas women.
“The United States is trying to get around this by suing the entire state of Texas, saying that even judges in Texas can't even hear are the cases. That's basically the only way to do a kill shot to just stop the law entirely. But absent a judgement against the entire state of Texas and everyone inside of it, this law sort of exists like a hydra from Greek mythology, cut off one head and two heads grow in its place,” explained Professor Blackman.