To quote the inimitable Donald Rumsfeld: “You go to war with the army you have, not the army you might want or wish you had.”
That’s the predicament of the anti-abortion forces in Texas. Though they’re still basking in the glory of passing the harshest abortion law in the land (SB8 bans abortions, even in cases of rape and incest, after the sixth week of pregnancy), they seem chagrined about the inaugural plaintiffs asserting their rights under the Texas Heartbeat Act. (The law allows perfect strangers to sue abortion providers or those who help a woman get an abortion and collect at least $10,000.)
Instead of stalwarts of the pro-life movement, the plaintiffs are two random dudes—one a suspended lawyer, the other disbarred—with pro-choice views. The disbarred lawyer—Oscar Stilley—is also a convicted felon who’s now finishing up a 15-year sentence for tax evasion in home confinement in Arkansas. (Listen to my chat with him below.) The other is a suspended lawyer in Illinois—Felipe Gomez—who got into trouble for sending threatening messages to various officials.
Naturally, the Heartbeat Act’s proponents are running for the hills!
Listen to Vivia’s interview with Oscar Stilley here .
Stilley and Gomez each told me they’ve tried contacting Right to Life in Texas for assistance to no avail. “They won’t return my phone calls,” says Stilley. “I called them to ask them for their best arguments—which I’d argue for them vigorously—but all my messages went straight to their answering machine.”
Stilley and Gomez shouldn’t hold their breaths waiting for a reply. “They filed two self-serving complaints,” sniffs John Seago, the legislative director of Texas Right to Life. “One [Stilley] is focused on his own legal troubles, not asserting pro-life [values], and the other [Gomez] says he’s seeking to overturn the law.”
Seago points out that “no one in the pro life movement is suing under the Heartbeat Act,” adding that “it’s not clear that Dr. Braid broke the law.” (Dr. Alan Braid, whom Stilley and Gomez are suing, wrote in the Washington Post that he performed the abortion in defiance of the Texas law.) “He only said he performed the abortion outside of the legal limit,” which Seago calls “vague—too vague for us to challenge.” His verdict: “it’s all a legal stunt.”
So here’s the news flash: Fake abortion!
The reality is that Stilley and Gomez are throwing a monkey wrench at the righteous law, vivifying the absurdity of the whole process. The law made a mockery of the judicial system, and now two gadflies are mocking the master mockers. It’s Monty Python 2.0.
“These guys have legal backgrounds—at least enough to be dangerous!” says Khiara Bridges, a law professor at University of California, Berkeley. “I think the law was designed to cause chaos, and these plaintiffs are just participating in the chaos.”
Adds Melissa Murray, a professor at NYU School of Law: “They’re making the point that you don’t need to be on the ‘right’ side; they know they’re not perfect plaintiffs. It’s legal trolling.”
Stilley and Gomez have been portrayed in the media as two wild and crazy guys. But maybe they’re crazy like a fox. And who says they won’t make an impact?
Of the two, I’d put my money on Stilley as the bigger thorn in the side of the Texas law. For one thing, he really knows how to make satire out of the process. In his colorful complaint, he muses about Dr. Braid’s empathy for “bastards or social misfits” and rants about the unfairness of his own conviction, while constantly evoking the name of Elohim. (Stilley says he’s Messianic and that he often make religious allusions because “religion plays an outsize role in our society.”)
Stilley’s complaint is totally over the top, but I give him brownie points for creative flair. “I loved writing it. It was uncommonly fun to write,” says Stilley.
Gomez’s complaint is spartan in comparison, yet he was quite chatty when I got him on the phone. A Democrat who says he voted for Donald Trump, Gomez is nonetheless pro-choice: “Preach the Bible if you want but don’t tell people what they can do. I say, leave the ladies alone!” He also raged about a range of issues from sanctuary cities (“People think that because of my last name, I’m for them”) to mandatory vaccines (“I’m not anti-vaccine; I just hate getting shots”).
Both are eccentric, but Stilley also seems to have given the Texas law a fair amount of thought. “I’ve been watching this thing go down and reading about the architect of this genius law,” says Stilley. He calls the Heartbeat law, “slippery as an eel.” In his most recent filing, a motion to intervene in the case brought by the U.S. Department of Justice against Texas to stop SB8, Stilley notes that the Texas law allows judges to engage in de facto redrafting of the law to survive challenges—the very form of judicial activism that conservatives decry. (Stilley’s motion to intervene was just granted by the U.S. District Court for the Western District of Texas.)
Stilley might be a felon and prankster, but that doesn’t mean he doesn’t know what he’s doing. And he’s having fun basking in his 15 minutes of fame. (Stilley tells me that Trevor Noah’s Daily Show just sent a crew to Arkansas to interview him.) But where is it all going?
None of it might matter because the real challenge to Roe v. Wade is Dobbs v. Jackson Women’s Health Organization, a case that tests Mississippi’s right to ban abortions after the 15th week of pregnancy. The Supreme Court is scheduled to hear that pivotal case on Dec. 1.
“The question of Dobbs should have been foremost before SB8,” says NYU law professor Murray. “They could have stayed the Texas case until Dobbs was decided, which is what the Court does all the time when cases are on the docket.”
Heartbeat Act or not, none of this bodes well for pro-choice advocates. “It all leads to when Dobbs is handed down,” says UC Berkeley law professor Bridges, adding, “I don’t think Roe will survive in its present form at all.”
In other words, enjoy the comedy while you can. Because the next act won’t be funny.
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