Texas’s Abortion Law Defense to Get Boost from Private Citizens

Three Texas residents and a man who already filed a lawsuit against a physician who allegedly violated the state’s ban on abortions after six weeks will get a chance to argue in federal court why the law should remain in force.

Erick Graham, Jeff Tuley, Mistie Sharp, and Oscar Stilley won permission to present oral arguments Friday at a hearing on the U.S.'s motion for a preliminary injunction in a case contesting the validity of a law that gives private citizens the right to enforce it.

The case involves one of the most restrictive abortion laws in the country, as more than 85% of abortions in Texas take place after the six-week mark, providers say. Its chilling effect on providers unwilling to risk lawsuits that could end in a damages award of $10,000 per abortion has brought the procedure to a standstill in the state.

The U.S. District Court for the Western District of Texas allowed Graham, Tuley, Sharp, and Stilley into the case under the federal permissive intervention rule. This rule says courts can allow anyone who has a claim or defense that presents the same questions as the main case to join the action.

The court didn’t rule on the parties’ claims that they had a right to join the case.

Graham, Tuley, and Sharp asked the court to let them into the suit to protect their state-law right to bring private enforcement actions against people who violate the Texas law, also known as S.B. 8.

Stilley already sued Alan Braid in the Texas District Court for Bexar County and plans future litigation against other alleged S.B. 8 violators. A decision by the district court blocking the law’s enforcement would undermine his right to sue, he said.

The intervenors may only discuss facts and arguments not raised by Texas in defending the suit, Judge Robert Pitman said Tuesday. All four said the state won’t adequately represent their interests.

The U.S. sued the state to invalidate S.B. 8 in order to protect women’s constitutional right to end a pregnancy before viability. The law went into effect Sept. 1, after the U.S. Supreme Court denied an emergency order to block it while a lawsuit brought by a provider against several state officials proceeded.

The Oct. 1 arguments will be conducted by videoconference, the court confirmed in a separate order denying Texas’ motion for an in-person hearing.

Mitchell Law PLLC, America First Legal Foundation, and Hacker Stephens LLP represent Graham, Tuley, and Sharp. Stilley represents himself. The U.S. Department of Justice represents the U.S., and the Texas Attorney General’s Office represents the state.

The case is United States v. Texas, W.D. Tex., No. 21-cv-796, 9/28/21.