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      Two disbarred lawyers sued a Texas doctor who performed an abortion. Flustered ‘pro-lifers’ are backpedaling | Moira Donegan

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      OpinionUS politicsTwo disbarred lawyers sued a Texas doctor who performed an abortion. Flustered ‘pro-lifers’ are backpedalingMoira DoneganAnti-choice groups are embarrassed that their draconian law is being enforced the way it was designed

      Democrats present last line of defense for abortion rights
      Sun 26 Sep 2021 06.27 EDTLast modified on Sun 26 Sep 2021 13.08 EDTDr Alan Braid, an OBGYN based in San Antonio, broke the law on purpose. In an essay published in the Washington Post last Saturday, the doctor announced that he performed an abortion on a woman who was past six weeks of gestation, the limit imposed by Texas’s new abortion ban, SB8. The doctor wrote that he felt morally obliged to perform the procedure, his worldview shaped by his years in obstetric practice having conversations with patients who revealed that they were terminating their pregnancies because they couldn’t afford more kids, because they had been raped, because they were with abusive partners, or because they wanted to pursue other dreams.He wrote, too, of beginning his practice in 1972, the year before Roe v Wade, the last time an outright ban on abortion was in effect in his state. “At the hospital that year, I saw three teenagers die from illegal abortions,” Dr Braid wrote. “One I will never forget. When she came into the ER, her vaginal cavity was packed with rags. She died a few days later from massive organ failure, caused by a septic infection.” Dr Braid reasoned that to avoid such needless deaths, he had a “duty of care” to the woman whose newly illegal abortion he performed.He was promptly sued. Two complaints – both from men living out of state – were filed against Dr Braid on Monday morning. One, a rambling, weird document, comes from a convicted felon and disbarred former attorney named Oscar Stilley, who is serving a prison term on house arrest in Arkansas. That complaint, which Stilley seems to have written himself, makes multiple references to Dr Braid’s conduct regarding “bastards” and his supposed belief in a god referred to by the Hebrew name “Elohim.” Stilley, who has said he does not personally oppose abortion, feels strongly that “if there’s money to be had, it’s going to go in Oscar’s pocket.”The second lawsuit is from a man named Felipe Gomez of Illinois, another disbarred lawyer, who labels himself “pro-choice plaintiff”, and whose complaint asks only that SB8 be overturned. These test cases, strange and off-putting as they are, now represent the best chance for SB8 to be vacated, and for abortion rights to be returned to Texans – at least for now.It didn’t have to be this way. When a conservative state passes an abortion ban – as they do with some regularity – state employees are usually tasked with enforcing the law, those employees are named as defendants in lawsuits brought by pro-choice groups, and the law is blocked from going into effect by courts that declare it unconstitutional before any real patients are denied abortion care. But Texas’s SB8 was designed to elide this normal process of judicial review, with a novel enforcement mechanism that bars state agents from acting to enforce the law. Instead, the law can only be enforced by private civil suits against people suspected of facilitating abortions – lawsuits, that is, like the ones filed by Stilley and Gomez.This private enforcement mechanism is like a legal Rube Goldberg machine built into SB8, creating a clever way to evade courts recognizing the bill’s abortion ban as unconstitutional. Created by an insidious conservative lawyer named Jonathan Mitchell, the loophole was designed to confound lawsuits against the law’s constitutionality with procedural, rather than substantive, questions, and to guarantee that SB8 would go into effect. The device is transparent bid to circumvent the authority of the federal courts. But those same federal courts, by now warped by decades of anti-choice influence on the judicial nominations process, let it slide anyway. Judges on the fifth circuit court of appeals, and later on the supreme court, found that the procedural questions that were engineered by SB8 provided them a sufficient pretext to do what they wanted to do anyway: allow a state to outlaw abortion within its borders, and effectively end Roe.And so, when the supreme court allowed SB8 to go into effect, it left the pro-choice movement with no choice. Pre-enforcement litigation failed on flimsy and artificial procedural grounds; what was needed was an illegal abortion, performed by someone willing to take on enormous personal risk, to create a test case. Only a deliberate legal violation would allow SB8 could be reviewed on the merits. This is where Dr Braid comes in. In addition to the enormous service he gave to the patient whose abortion he performed, he also did a service to the pro-choice movement, and to women statewide. He took on enormous personal liability so that the question of their right to an abortion could get a fair hearing.Interestingly, the anti-choice movement doesn’t seem entirely happy that the lawsuits that enforce the abortion ban they championed are now actually arriving in Texas courts. John Sego, a legislative director of the anti-choice group Texas Right to Life, which supports SB8, expressed displeasure that the law is being enforced – well, exactly the way it was designed. He called the lawsuits “self-serving legal stunts”. Yet he also claimed that “Texas Right to Life is resolute in ensuring that [SB8] is fully enforced.” If Sego and other anti-choice groups want the law enforced, why do they oppose private citizens enforcing it, using the bill’s own remedy?It might be that Sego and his anti-choice colleagues are embarrassed to have their interests represented by a plaintiff like Stilley, with his flamboyant feloniousness. Maybe they have realized that the bounty-hunting provision of the law is deeply unpopular, and that the suits are terrible PR for the anti-choice movement. At any rate, it is hard to take Sego seriously when he says, “We believe Braid published his op-ed intending to attract imprudent lawsuits, but none came from the pro-life movement.” In fact Sego’s group is legally not able to file bounty-hunting lawsuits to enforce SB8: although the group established an “abortion snitch” website that seemed designed to solicit tips about possible defendants in SB8 enforcement suits against those who facilitate abortions, a judge issued a restraining order preventing Texas Right to Life from filing them.But perhaps the real reason Sego is displeased with the lawsuits against Braid is that SB8’s bounty hunting enforcement system was only one small part of the anti-choice vision for the law. The real way that abortions would become inaccessible in Texas under SB8 wasn’t that people would sue; it was that abortion providers, faced with the prospect of being bankrupted by lawsuits, would preemptively stop performing abortions. It was an attempt to do by intimidation what the anti-choice movement was not confident they could do by law: strip Texan women of their constitutional right to control their own bodies and lives. And, mostly, this gambit has worked. In the more than three weeks since SB8 went into effect, legal abortions after six weeks have come to a halt in Texas. Fearing liability, clinics are turning pregnant patients away. So far, only Dr Braid has called the anti-choice movement’s bluff.
      Moira Donegan is a Guardian US columnist
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      With Abortion Rights Under Threat, Democrats Hope to Go on Offense

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      Warning of Texas-style laws nationwide, the party believes it can use the issue to turn out suburban women in the Virginia governor’s race this fall and the 2022 midterms.VIRGINIA BEACH — Kenzie Smith is “not big into politics,” she said, and while she votes faithfully in presidential elections, for Democrats, she is less interested in off-year races, such as those seven weeks away in Virginia for governor and the legislature.But the recent news that the Supreme Court had allowed Texas to ban most abortions after about six weeks of pregnancy, with no exceptions for rape or incest, grabbed her attention.The fear that such a restrictive law, which she called “insane,” could come to Virginia if Republicans take power has sharpened her desire to turn out on Election Day. “If there are laws like what’s going on in Texas coming here, I’d absolutely be motivated to go to the polls over that,” said Ms. Smith, 33, a marketing consultant.The Supreme Court’s decision on Sept. 1 to let Texas enact the country’s most restrictive abortion law came as a grievous blow to abortion rights advocates, a long-sought victory for abortion opponents and, for Democrats, a potential political opportunity.As the party mobilizes for next year’s midterms, its first big test on the issue will come in the Virginia elections this fall. Democrats are hoping to win a tight governor’s race and keep control of the legislature in a state that has moved rapidly to the left. Former Gov. Terry McAuliffe, a Democrat who is running for his old office, has repeatedly promised to be a “brick wall” against anti-abortion measures, and has played up his defense of abortion rights at a debate last week, on the campaign trail and in fund-raising appeals.Democrats in Virginia and beyond are focusing in particular on suburban women, who played a large role in electing President Biden, but whose broader loyalty to his party is not assured. With Republicans smelling blood in next year’s midterm elections as Mr. Biden’s approval ratings slip and the economy faces a potential stall over the lingering pandemic, Democrats are looking for issues like abortion to overcome their voters’ complacency now that Donald J. Trump is gone from office.In more than two dozen interviews in the politically divided city of Virginia Beach, the largest in the state but essentially a patchwork of suburban neighborhoods, Democratic-leaning and independent female voters expressed fear and outrage over the Supreme Court’s green light for the Texas law. Many said it intensified their desire to elect Democrats, although historically, single issues have not driven turnout waves; candidate personalities and the overall economy have.Even a number of women who said they favored Republicans noted that they also supported abortion rights — which may explain why G.O.P. candidates in Virginia have played down the issue, scrubbing anti-abortion comments from campaign websites and walking back some remarks.In a debate on Thursday between candidates for governor, Glenn Youngkin, the Republican, said, “I would not sign the Texas bill today.” But he dodged when asked if he would sign a six-week abortion ban with exceptions for rape and incest. He affirmed that he supported a “pain-threshold bill,” which generally outlaws abortion after 20 weeks.Mr. McAuliffe said he was “terrified” that “the Trump Supreme Court” could overturn Roe v. Wade, the 1973 landmark decision granting a constitutional right to an abortion. He said he supported “a woman’s right to make her own decision to a second trimester.” He misleadingly said that Mr. Youngkin “wants to ban abortions.”Early in the campaign, a liberal activist recorded Mr. Youngkin saying that he had to play down his anti-abortion views to win over independents, but that if he were elected and Republicans took the House of Delegates, he would start “going on offense.” The McAuliffe campaign turned the recording into an attack ad.Ellen Robinson was “horrified” by the Texas law.Carlos Bernate for The New York TimesKathleen Moran said the Supreme Court’s decision on the Texas law “scared” her.Carlos Bernate for The New York TimesRepublicans portray Mr. McAuliffe as favoring abortions up to the moment of birth, trying to tie him to a failed 2019 bill in the legislature that would have loosened some restrictions on late-term abortions. Virginia law permits abortions in the third trimester if a woman’s life is in danger.Polling on abortion shows that Americans’ attitudes have remained stable for decades, with a majority of around 60 percent saying abortion should be legal in all or most cases. In Virginia, slightly fewer people, 55 percent, agree, according to the Pew Research Center.However, in a contradiction that illustrates the moral complexities of the issue, national polls also show that majorities favor abortion restrictions that are impermissible under Roe, such as outlawing second-trimester abortions in most cases.A Washington Post-Schar School poll of Virginia conducted this month, after the Supreme Court cleared the way for the Texas law, found that abortion ranked low among voters’ concerns, with only 9 percent saying that it was their most important issue in the governor’s race.The starkness of the Texas decision — and the prospect that the Supreme Court could overturn Roe next year in a case involving a 15-week abortion ban in Mississippi — has sharpened the issue.Virginia Beach presents a test case of the fraught abortion issue on the front lines of America’s shifting electoral landscape. The large population of military families has long lent a conservative cast to local politics, but last year the city voted for a Democratic presidential candidate, Mr. Biden, for the first time since Lyndon B. Johnson. Representative Elaine Luria, a Democrat and former Navy commander whose congressional district includes Virginia Beach, is among Republicans’ top targets for 2022.The city stretches from saltwater taffy shops on the touristy Atlantic beaches to quiet streets of brick homes that lace around the area’s many bays. Outdoor conversations are interrupted by earsplitting military jets, which rarely draw a glance skyward.Ellen Robinson, a retired nurse, who identifies as a political independent, was “horrified” by the Texas law and said that if the court overturned Roe, “I think it would be the beginning of fascism in this country.”Kathleen Moran, a technical editor in the engineering field, who favors Democrats, said the Supreme Court’s decision on the Texas law “scared” her.“I have boys who will be dating women,” she said. “I have nieces. This goes back to the whole ‘white men get to make all the decisions about everything.’”Ms. Moran said she was more intent on voting after the court declined to halt the Texas law, which the Biden administration is trying to block.“We are in a really dangerous situation,” she said. “Obviously for abortion, we don’t want to become Texas, but on a lot of issues we could lose what is now a blue state.”While many Republican women across Virginia would most likely support stricter abortion laws, few conservative-leaning women in suburban Virginia Beach expressed support for a six-week abortion law or a reversal of Roe v. Wade. Overall, while these women didn’t always embrace the “pro-choice” label, they agreed that women should be able to make their own reproductive decisions.Glenn Youngkin, the Republican candidate for governor in Virginia, dodged a question at a debate about whether he would sign a six-week abortion ban with exceptions for rape and incest.Carlos Bernate for The New York Times“I know Republicans have been against abortion forever, but as a woman, I think I ought to be able to choose myself,” said Janis Cohen, 73, a retired government employee. Her lawn featured a parade of signs for G.O.P. candidates. When it was pointed out that one of them, Winsome Sears, who is running for lieutenant governor, has said she would support a six-week abortion ban, Ms. Cohen fired back that the current governor, the Democrat Ralph Northam, was what she considered an abortion extremist.In 2019 the governor, a pediatric neurologist, seemed to suggest that a delivered baby could be left to die if the mother requested an abortion while in labor with a deformed fetus unlikely to survive. Republicans across the country seized on the comments as sanctioning “infanticide.” Mr. Northam’s office called the accusations a bad-faith distortion of his views.Polls of the Virginia governor’s race have generally forecast a close race, including one by Emerson College last week with the candidates within the margin of error.Nancy Guy, a Democratic state delegate who flipped a Republican-held seat in Virginia Beach by just 27 votes in 2019, said that before abortion rose as an issue in recent weeks, “most people were complacent and not paying attention.”Ms. Guy’s opponent has pledged that if elected, he will donate his salary to a so-called crisis pregnancy center that steers pregnant women away from abortions. The contrast could not be more clear to voters who follow the issues. Still, Ms. Guy said, with the news constantly churning, it is difficult to know what will drive voters nearly two months from now to cast ballots.Nancy Guy, a Democratic state delegate, said that before abortion rose as an issue in recent weeks, “most people were complacent and not paying attention.”Carlos Bernate for The New York TimesDemocrats in Virginia made huge strides during Mr. Trump’s divisive leadership, culminating in 2019, when the party took control of both the State Senate and House of Delegates. But Democrats’ majorities are slim, and Republicans believe they have an anti-incumbent wind at their backs this year. Three statewide positions are on the ballot on Nov. 2 — governor, lieutenant governor and attorney general — along with all 100 seats in the House.The field director for Planned Parenthood Advocates of Virginia said that on average, 10 to 15 volunteers were on door-knocking shifts, compared with 25 to 40 two years ago, a worrying sign for supporters of abortion rights.Han Jones, Planned Parenthood’s political director in Virginia, added: “People are exhausted with elections and exhausted with Donald Trump’s rhetoric and feel like they can take a break. We could easily go red in this election alone if Democratic voters who are not feeling as passionate or leaned in don’t turn out to vote.”A team of Planned Parenthood canvassers who visited a neighborhood of attached town homes recently encountered general support for Democrats, but not much awareness of the election or enthusiasm for it.One voter, Carly White, said abortion was a touchy subject in her household. “I’m for Planned Parenthood but my husband is not,” she said, stepping outside a home with a small, precisely trimmed lawn. “I think the issue is, he’s a man. He’s never grown a baby. I just can’t — I don’t like somebody telling me what I can do with my own body.” More