Texas Abortion Bounty Dispute Gets Argument 1,000 Miles Away

Dr. Alan Braid knew he might get sued.

He said as much in the Washington Post, which published his op-ed announcing he’d performed an abortion in Texas just days after the state started allowing nearly anyone to take him to court for doing so.

“I fully understood that there could be legal consequences—but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested,” the September 2021 piece said.

But he may not have foreseen where the suits landed: in front of a federal appellate court 1,000 miles away, hinging on a procedure more commonly used for insurance cases.

At oral arguments Tuesday at the US Court of Appeals for the Seventh Circuit, Braid’s attorneys will argue the Texas state court claims should be resolved in federal court in Chicago.

The Texas statute, SB 8, gives anyone the right to sue someone who provides an abortion after cardiac activity can be detected in the embryo—which generally occurs around six weeks’ gestation. Multiple people can sue, but only one can win a judgment of at least $10,000.

Within days of Braid’s op-ed, three people in three different states sued him. Not long after that, Braid filed an action in the Northern District of Illinois under federal interpleader—a mechanism to address disputes between claimants in multiple states who want the same property.

“It’s not the classic ‘oh, this is a piece of property people are disputing,’” said University of Texas School of Law professor Theodore Rave; he is one of three civil procedure professors who filed an amicus brief supporting Braid’s position. “But it fits in that mold, because you have lots and lots of potential claimants who are competing over just one pot of $10,000.”

In September 2022, the Chicago federal judge hearing the interpleader claim dismissed it altogether. Judge Jorge Alonso found that the language of SB 8 provided him with no guidance on how to choose between the three claimants, and so the matter could only be addressed in Texas state court.

Braid appealed to the Seventh Circuit, which will hear arguments at the University of Illinois Urbana-Champaign College of Law.

Tough to Defend

SB 8 was written to make lawsuits “uniquely difficult to defend such that a filed action is all but assured to lead to multiple ruinous and vexatious suits,” Braid’s attorneys wrote in their brief, calling interpleader “the only means of securely protecting Texas abortion providers’ federal rights.”

The interpleader defendants—the three who initially sued Braid—have been representing themselves. Oscar Stilley, a disbarred Arkansas lawyer currently in custody for violating the terms of his release on a tax evasion sentence, wasn’t given time to argue before the court and said he may not be granted permission to listen to Tuesday’s arguments.

In a phone interview from an Oklahoma prison, Stilley said he sued Braid in an attempt to have a court declare whether SB 8 is legal.

The whole structure of the Texas law “is designed to chill access to the courts,” he said. “And if you don’t have access to the courts, you’ve basically lost anything that has any meaning to you.”

The other claimants, one in Illinois and another in Texas, also weren’t granted time to argue.

Instead, the court appointed independent attorney Brian Paul of Faegre Drinker Biddle & Reath as an amicus to defend Alonso’s decision.

Paul argued that Alonso never had proper jurisdiction in the first place. Interpleader is intended for disputes over a fund that is “limited and finite, not inchoate or uncertain,” and while SB 8 defines minimum damages of $10,000, it doesn’t impose an upper limit.

There’s no good reason that the matter couldn’t be resolved in Texas state court, Paul wrote, noting that the whole dispute only exists because Braid chose to publicize his actions in a national newspaper.

Interpleader isn’t meant to be “a vehicle for forum-shopping in an effort to adjudicate rival claims that the interpleader himself invited,” the brief states.

Meanwhile, the legal landscape has shifted significantly since Braid’s op-ed; Texas criminalized nearly all abortions after the US Supreme Court’s 2022 Dobbs decision.

“The stakes of the case are lower than they were before Dobbs, but they still exist,” Rave said. “Any SB 8 defendant faces the potential for multiple vexatious lawsuits and potential inconsistent judgments and a system that’s rigged to make it hard to defend these suits.”

Braid is represented by Massey & Gail, Susman Godfrey, and Center for Reproductive Rights. The amici professors are represented by Jenner & Block.

The case is Braid v. Stilley, 7th Cir., No. 22-2815, argument scheduled 4/1/25.