Texas Abortion ‘Bounty Hunter’ Case Vexes Seventh Circuit Judges

Seventh Circuit judges on Tuesday wrestled with what Chief Judge Diane S. Sykes called “an unusual use” of a procedural mechanism: an attempt to have a Chicago federal judge decide a case involving a Texas law that allows citizens to sue abortion providers.

Sykes repeatedly referred to claimants who sue under the Texas statute as “bounty hunters,” and noted that the law’s $10,000 minimum payout functions as a fine—albeit one that would be paid to a private citizen.

“Texas public policy looms large” on the question of whether the Northern District of Illinois judge should have abstained from deciding the matter, Sykes said. “We have to be aware of the real gravamen of what’s going on here.”

Judges Michael Y. Scudder Jr. and Thomas L. Kirsch II , who sat alongside Sykes on the panel, appeared somewhat skeptical of claims that Dr. Alan Braid couldn’t get a fair hearing in Texas state court.

Braid was sued multiple times after he announced in a 2021 Washington Post op-ed that he had terminated a pregnancy after the Texas law, known as SB 8, took effect. In response, he filed under federal interpleader, a mechanism used to resolve matters in which claimants in multiple states are seeking the same property or pool of money.

The statute is more commonly used in insurance disputes, but Braid’s attorneys argue it should apply to his case. A US District Court for the Northern District of Illinois judge threw out the interpleader claim, saying the matter could only properly be resolved in Texas state court. Braid appealed that dismissal, bringing the case before the US Court of Appeals for the Seventh Circuit.

SB 8 was “intentionally designed to expose” defendants to “multiple duplicative adverse claims,” attorney David Franklin of Massey & Gail argued Tuesday. The statute stacks the deck against defendants and “in many ways confounds the normal process,” he said.

Not all the suits against Braid are still active, but attorneys acknowledged Tuesday that doesn’t resolve the interpleader matter. The original claimants weren’t given time to argue Tuesday. Instead, the court appointed Brian Paul of Faegre Drinker Biddle & Reath as amicus counsel to defend the district court judge’s decision.

Paul argued Tuesday that Texas courts are perfectly capable of hearing Braid’s cases, and said the matter doesn’t qualify for interpleader. The statute applies to cases involving a discrete amount of money or property, he said, and while Braid has deposited $10,000—the minimum he would have to pay if he lost an SB 8 case—there is no limit to the potential payout.

That statutory minimum is “the only thing that gives this claim the allure of interpleader,” Paul said. “All we have is a contingent, inchoate claim against Dr. Braid’s assets.”

Sykes said there was no reason to believe that anyone who won a suit against Braid would ever get more than the statutory minimum, given that they have no relationship or connection to the abortion in question, she noted.

“They’re just not going to get more than $10,000,” she said.

And Braid could win one suit in Texas and still be vulnerable to others making similar claims, Sykes noted. That victory would have “no preclusive effect on some other bounty hunter’s action.”

Paul noted that Texas has its own interpleader rules where Braid’s matters could potentially be resolved. This is a “matter of substantial policy consequence to Texans,” he said, arguing that Braid’s claims raise “significant federalism concerns.”

Franklin argued that unless and until Braid loses a lawsuit, anyone could continue to file claims against him.

“What we’re being told is the only way to avoid vexatious litigation is to pay up,” he said.

Braid is also represented by Susman Godfrey and Center for Reproductive Rights.

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