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An expert discusses the chances of Texas anti-abortion lawsuits succeeding in court

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Two out-of-state attorneys have filed a lawsuit against a San Antonio doctor who became the first to publicly admit to performing an illegal abortion in violation of the new state ban. Do these cases, however, have a chance in court?

Martin Levy, a law professor at Texas Southern University, told the Chronicle that the new law has been a hot topic in his classes. He discusses how a lawsuit similar to the two filed against Dr Alan Braid would fare in federal and state court.

It wouldn’t stand a chance in federal court, he said, because the types of controversies that can be filed are limited. However, he believes it has a chance in state court.

The main reason for the disparity is the case or controversy requirement of Article III of the Constitution.

“Conceivably a state court could hear the case, decide it in favor of the statute, and the Supreme Court can hold it not a case of controversy,” Levy said.

“The type of controversy that’s required in federal court is a controversy where someone’s personally harmed and affected by the statute.”

In this case, he argues that simply believing a statute is unconstitutional is insufficient.

“(The law allows) private parties to sue and their only harm would be they don’t like the statute. And that has a problem being litigated. If you were dealing with your doctor, you can personalize that harm, not just general grievances. As part of that principle, the court won’t hear a controversy where there’s collusion.”

According to Levy and other experts, the doctor’s admission is likely a litmus test for whether the law can be upheld after the Supreme Court allowed it to go into effect.

“Being sued puts him in a position … that he will be able to defend the action against him by saying the law is unconstitutional,” Carol Sanger, a law professor at Columbia University in New York City, told the Associated Press.

And that’s exactly how Levy would defend it. 

“When Roe v. Wade was decided, the court kind of stayed away from viability like the plague,” he said.

“In the last trimester, they held that when a fetus was viable and could survive outside the womb, the state had a vested interest in protecting life. And really what that did was encourage regulations aimed politically at overruling the principles of Roe.”

Now, a new Texas statute aims to change the definition of when a baby in the womb is viable.

“The central issue with this statute is they’re arguing viability is when you can hear a heartbeat. And at 6 weeks there’s no beat, but there’s a rhythm to the cells. Is that viability? No. We aren’t capable of extracting those cells at that point of a womb in sustaining life. And there isn’t any science. We don’t even have a fetus at 6 weeks, we have cells.”

What will the court do about it?

According to Levy, it all depends on the judge.

“Denying that right is unconstitutional and could result in a woman’s death,” he said.

“That’s a question for the state. The criteria for a temporary injunction says you can’t enforce this yet until we reach a decision. The criteria is there at least a reasonable likelihood that you’ll be successful and if we don’t issue a stay could people be harmed? Couldn’t a pregnant woman die over this? That’s pretty irrefutable if it was determined to be unconstitutional.”

That’s the reason Braid, the subject of both lawsuits, took the risk at defying the law, he said in a weekend Washington Post opinion column.

“I understand that by providing an abortion beyond the new legal limit, I am taking a personal risk, but it’s something I believe in strongly,” he said in the op-ed. “I have daughters, granddaughters and nieces. I believe abortion is an essential part of health care. . . . I can’t just sit back and watch us return to 1972.”

Abortions are illegal once medical professionals detect cardiac activity, which is usually around six weeks and before some women even realise they are pregnant. The law expressly prohibits prosecutors from prosecuting people like Braid who aide, abet, or perform abortions, but private citizens can enforce the law and are entitled to at least $10,000 in damages if successful.

Braid practically dared opponents of the procedure’s near-total ban in the state to try to make an early example of him by filing a lawsuit.

Image Credit: Getty

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