How low can we go? That’s the question we have been asking ourselves since the U.S. Supreme Court decided earlier this month to allow our ignominious abortion vigilante law to go into effect. The law itself — which violates nearly a half century of Supreme Court precedents and essentially bans abortions in Texas — was bad enough, but state Rep. Briscoe Cain, one of the many sponsors, took the state’s ignominy even lower when he gleefully tweeted out that he now considers himself a “baby-murder bounty hunter.”
Cue the reality TV series.
Cain is referring to a basic provision of the law, known as Senate Bill 8, that essentially deputizes ordinary citizens — in Texas or outside the state — to sue anyone they suspect has engaged in “conduct that aids or abets the performance or inducement of an abortion.” If successful in court, the vigilante — er, plaintiff — will be awarded at least $10,000 per illegal abortion. Presumably, that bounty will be paid by the defendant, in addition to court costs and attorneys’ fees.
Cain, the baby-faced Deer Park Republican, arguably the most inept lawmaker in the Texas Legislature, favors cowboy hats and boots and no doubt envisions himself as a squinty-eyed Man with No Name, a young and relentless Clint Eastwood on the vigilante trail of abortion providers and staff, friends and family, Uber drivers and anyone else who might offer assistance to a woman facing one of the most serious decisions of her life. (SB 8 makes no mention of the father.)
Now, Cain has company. The first abortion vigilante to step up and take action under the blatantly unconstitutional Texas law is an Arkansas man named Oscar Stilley, who describes himself as a “disbarred and disgraced” attorney.
Stilley told the New York Times that he served a decade in prison after being convicted in federal court of tax evasion and conspiracy and is now under house arrest. According to a U.S. Justice Department press release, he hasn’t paid federal taxes since 2010.
Stilley said he decided to file suit after reading an op-ed in the Washington Post last Saturday by Dr. Alan Braid, a San Antonio physician who wrote that on the morning of September 6 he had “provided an abortion to a woman who, though still in her first trimester, was beyond the state’s new limit. I acted because I had a duty of care to this patient, as I do for all patients, and because she has a fundamental right to receive this care.”
Braid also mentioned that several times a month women come to his clinic because they have been raped. Some go to the police, but usually they do not, he wrote. Cain’s law makes no exception for pregnancy resulting from rape or incest. (Of course, Gov. Greg Abbott has said that he will be eliminating all rape in Texas, so perhaps we don’t need to worry about that omission.)
“I have daughters, granddaughters and nieces. I believe abortion is an essential part of health care,” Braid concluded. “I have spent the past 50 years treating and helping patients. I can’t just sit back and watch us return to 1972.”
To add to the absurdity, Stilley told the Times he wasn’t interested in preventing Braid from performing abortions, since he is pro-choice. He sued, he said, for the money. “I’m going to get an answer either way,” he said. “If this is a free-for-all, and it’s $10,000, I want my $10,000. And yes, I do aim to collect.”
Another disbarred attorney, this one in Illinois, also has sued Braid. State Rep. Cain and these cynical disbarred men deserve each other, but Cain’s fellow Texans — particularly Texas women — deserve so much more. They certainly deserved a more judicious ruling from the U.S. Supreme Court, as Chief Justice John Roberts argued in a rebuke of his five colleagues who voted to let the law stand based on procedure, not a judgment of its constitutionality.
“The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place,” Roberts wrote in his dissent. “I would grant preliminary relief to preserve the status quo ante — before the law went into effect — so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”
Justice Sonia Sotomayor, another of the four dissenters, was more pointed: “The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation.”
In light of the high court’s dereliction, Dr. Braid in San Antonio deserves credit for at least forcing the issue — no doubt at some cost to himself — although given what appears to be the anti-choice views of five Supreme Court justices, it’s increasingly obvious that a woman’s constitutional right to an abortion is in danger, even if the Texas law is struck down. In a few weeks the court will hear a Mississippi case that offers them an opportunity to eviscerate most of Roe v. Wade.
Meanwhile, Democrats in the U.S. House of Representatives advanced a bill earlier this week that would protect the right to abortion, as well as annul several restrictions passed by Republican-controlled state governments. The so-called “Women’s Health Protection Act” is likely to pass the House, only to die in the Senate, where at least 10 Republicans would have to join every Democrat to reach the 60-vote threshold required to pass most legislation. That won’t happen.
A federal judge in Austin has set an October 1 hearing date to consider the Justice Department’s request for an emergency order that, in effect, would nullify SB 8. If the legal challenges fail, look for the “baby-murder bounty hunter” to be flying to Arkansas with a symbolic over-sized Sweepstakes-style check in hand, made out to one Oscar Stilley for $10,000.
Cain will have to go to Stilley’s Cedarville house, of course, since the fellow doesn’t get out these days. We can see both of them on the front porch, posing with the check for photographers. That, fellow Texans, is how low we can go.
