Despite not having a high profile in the anti-abortion movement, Jonathan Mitchell developed and promoted the legal approach of the Texas abortion law. A few years earlier he helped write major portions of the Texas abortion bill that was rejected by the Supreme Court in 2016. Mitchell who was the Texas state government’s top appeals court lawyer was called out then for his attempt to structure the law in a way that would prevent judicial action to block it. Last month a new Texas legislation that practically bans abortion in the state was allowed to go into effect by the Supreme Court’s majority. Notable the Court’s decision did not address the law’s constitutionality.
The legislative structure that Mr. Mitchell has conceived here is built around deputizing ordinary citizens to enforce it rather than the state. Critics say that Mr. Mitchell is gaming the judicial system through a legislative procedure since the law is deliberately devised to make it much more difficult for the courts to stop it by evading judicial review. The new Texas law represents a new iteration of the anti-abortion campaign, one that’s not based on principles, according to reports.
Mr. Mitchell briefly addressed his work in a statement. “The political branches have been too willing to cede control of constitutional interpretation to the federal judiciary, but there are ways to counter the judiciary’s constitutional pronouncements, and Texas has shown that the states need not adopt a posture of learned helplessness in response to questionable or unconstitutional court rulings.” Mitchell has written a law review article pointing at the legal vulnerabilities at the state level resulting in challenges in the court. This article set out the approach that he would go on to use in the municipal ordinances across Texas and then in the 2021 state law: helping states protect themselves from judicial review by delegating enforcement authority to private citizens. In a largely procedural ruling last month, the Supreme Court declined to block the Texas law, emphasizing that it was not ruling on its constitutionality.
The Texas abortion law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in the state. It prohibits most abortions after about six weeks of pregnancy and makes no exceptions for pregnancies resulting from incest or rape. Citizens, not the state, will enforce the law. The law effectively deputizes ordinary citizens — including those from outside Texas — allowing them to sue clinics, health providers, doctors, staff and even a patient’s driver to become potential defendants for violating the law. It awards them at least $10,000 per illegal abortion if they are successful.
The persistence of the anti-abortion movement has shifted from focusing on stacking the courts with anti-abortion judges to a willingness to embrace unconventional approaches to further erode the right to abortion. The novel approach conceptualized by Mitchell hinges on civil enforcement while the state itself is being prohibited from enforcing it purposely structured to largely evade liability which was the intention from the start of the legislation’s adoptions in municipalities across Texas.
Mr. Mitchell runs a one-person law firm since 2018 after efforts by the Trump administration to bring him onboard proved unsuccessful.
News Report Summary by Rafaela Prifti
