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Texas lawsuits against abortion doctor could hasten new statute's downfall

Irritating the courts is a good way to prejudice them against the law causing the irritation.

On Monday, two plaintiffs filed what are believed to be the first lawsuits against a Texas doctor who admitted that he performed an abortion apparently in violation of the state’s new abortion law. San Antonio physician Alan Braid revealed in an opinion piece in The Washington Post that he had performed an abortion on a woman later in her pregnancy than is allowed under the recently minted statute, which bans abortions after cardiac activity is detected, usually at about six weeks’ gestation.

A statute’s infirmities stand out in even starker relief whenever there are wacky plaintiffs, pleadings or factual scenarios.

The Texas law is unique in that it’s not enforced by state officials. Rather, it allows members of the public to file lawsuits for an award of $10,000 against abortion providers or others who have helped a woman obtain an abortion, such as someone who provides a ride to a clinic. The law is also so broad that those bringing suits need not even reside in Texas, and indeed, neither of these two plaintiffs does.

Arkansas plaintiff Oscar Stilley is a self-described “disbarred and disgraced” lawyer. Illinois plaintiff Felipe N. Gomez, pointedly (and unnecessarily) calls himself a “pro-choice plaintiff” in his complaint and appears ideologically aligned with the doctor he’s suing.

These cases by outlandish plaintiffs, far removed from the scene of the incident at hand, could ironically help Braid and pro-choice advocates. These pro se litigants, or plaintiffs who are representing themselves in the suits, constitute a real-time “worst-case scenario” of what the Texas law does. This kind of litigation chaos right out of the gate will give a reviewing court an unspoken incentive to curb this law, helping to keep it one of a kind.

Often an important consideration in cases is the “slippery slope” argument: essentially, that the law at issue could lead to dangerous, extreme outcomes if not reined in. In these suits, however, Braid doesn’t need to make the slippery slope argument. He doesn’t need to point out that if this law survives, it will lead to out-of-state pro se plaintiffs filing bizarre complaints — because that’s happened. The first cases are squarely on the slope. And it’s already slippery.

Those realities could well persuade a Texas court that the Legislature overstepped its authority in deputizing citizens of other states to enforce Texas law. Or a federal court might determine that the Texas law burdens interstate commerce in a way that runs afoul of the U.S. Constitution’s commerce clause. A statute’s infirmities stand out in even starker relief whenever there are wacky plaintiffs, pleadings or factual scenarios.

To start, before courts can address the merits of any case, that court must have jurisdiction over the case. In Texas, that means the plaintiff must have “standing” and that there is a “live controversy between the parties.” If not, the court lacks “subject matter jurisdiction” and must dismiss the case.

The “standing” doctrine derives from the state constitutional rule that Texas courts may only decide an actual controversy between the parties. If the case doesn’t have one, a Texas court can’t hear it.

In Gomez’s case, he admits he’s on the same side as the defendant. He calls himself a “pro-choice plaintiff” and Braid a “pro-choice defendant.” As the nearby 7th Circuit Court of Appeals wondered aloud in a 1998 case involving a nonprofit anti-abortion organization: “How can a suit present a ‘case or controversy’ when all litigants are on the same side?”

In fact, Gomez’s complaint is hardly a complaint at all. The Texas law appears to allow any person to sue those involved in providing unlawful abortions for money damages. But the only relief Gomez seeks in his four-paragraph complaint is for “the Court to declare that the Act is Unconstitutional, and in violation of Roe v Wade,” the U.S. Supreme Court case that legalized abortion. A Texas court may conclude the law only allows an out-of-state plaintiff to make demands for money rather than any challenge to the law.

That’s why Stilley’s lawsuit has a better chance to go the distance. That’s not because his complaint is more artfully drafted. It’s not. At all. But Stilley is clear that he wants the money. He’s demanding $100,000 but will take the amount of $10,000 actually laid out by the law. And he likely meets the threshold requirement of standing.

But standing just gives his suit the ability to proceed; it has little to do with the ultimate merits of the lawsuit. And Stilley’s complaint is — to use a legal term — bonkers. Stilley was a lawyer at some point, so his pleading has the formatting of someone who is familiar with filing documents with the court. Beyond that, though, it takes several detours away from normalcy.

The complaint devotes considerable space to railing against his “15 year federal sentence on utterly fraudulent federal charges of ‘tax evasion’ and ‘conspiracy.’” He complains that prosecutors’ charges against him “repeatedly changed and morphed away from the purported grand jury indictment, to whatever new theory the government chose to espouse at a given time.”

Stilley has a point, in that federal defendants frequently complain about the government changing its theory during trial to convict on a broader basis than what was originally charged. But that point has absolutely nothing, zero-point-zero, to do with a complaint against Braid pursuant to the Texas abortion law.

Meanwhile, the defendant can only benefit from this chaos. These plaintiffs acting on their own behalf highlight the potential abuse of this law by millions of would-be lawyer-less plaintiffs. Pro se litigants are, at the same time, the glory and the bane of the legal system. In theory, pro se plaintiffs embody hallowed American notions of independence and self-determination. In practice, in the courtroom, they are generally a train wreck.

The civil complaints of both Gomez and Stilley are shining examples. A complaint is only the very first of many documents to be filed in a lawsuit. These pro se complaints will start the litigation off with procedural issues, just because of the way they drafted their pleadings. For instance, pleadings that spin off into allegations about “Elohim … ‘mighty ones,’ AKA ‘God’” as Stilley’s does, are not exactly a “statement in plain and concise language of the plaintiff’s cause of action” as is required by the Texas Rules of Civil Procedure.

Now all any would-be plaintiffs need is a computer, and they can draft pleadings that will logjam the Texas courts overnight. Irritating the courts is a good way to prejudice them against the law causing the irritation. At least for the first two lawsuits, Braid couldn’t have asked for better plaintiffs to sue him.