Mon. Aug 8th, 2022

At the heart of the extreme Texas law banning almost all abortion care in the second largest state in the United States is a new legal provision that allows any private citizen to act as a guard and sue an abortion provider or anyone who “helps or supports” procedure. While a federal judge temporarily blocked Senate Proposition 8 on Wednesday, after 36 days of entry into force, the Fifth Court of Appeals temporarily restored the law late Friday.

In a lawsuit against the measure, the U.S. Department of Justice recently called Senate Bill 8 an “unprecedented scheme” designed with the specific purpose of avoiding judicial review of its constitution. But who devised this dangerous legal strategy?

The state’s largest anti-abortion group, Texas Right to Life, an influential organization that largely lobbied for SB8, says it was a “team effort” from within the state that included players like Republican State Senator Bryan Hughes. But a less obvious figure also worked behind the scenes: the organization confirmed that former Texas attorney general Jonathan F Mitchell was “complicit” in drafting the law.

Mitchell, a 45-year-old private lawyer affiliated with the conservative Federalist Society and Heritage Foundation, called a “brilliant legal mind” by a lawyer who worked with him in a union case, has a long history of defending cultural war and religious legal challenges, including abortion care, anti-LGBTQ rights, trade union litigation, and affirmation.

Based on legal documents, legal experts, and his own writings, Mitchell promotes a controversial and some say “dangerous” and “radical” legal strategy that seeks to counter judicial review and give Republican state lawmakers maximum power. With Roe v Wade at the crossroads — the U.S. Supreme Court is ready to hear a Mississippi case challenging a 15-week ban during this period — abortion rights seem to be an ideal test site to advance his legal ideology.

“It is clear that Mitchell and allies will ban abortion directly through their own legal system,” said Amanda Williams, CEO of Lilith Fund, which is among the groups fighting SB8.

A driving force

Mitchell, who graduated from the University of Chicago Law School in 2001, has a formidable resume that includes an expedition with late Judge Antonin Scalia, a visiting professor at Stanford Law School, time as an adjunct professor at the University of Texas School of Law and a role with the Department of Justice under George W. Bush. A character who was largely out of the public eye refused Mitchell to be interviewed for this story.

In 2016, Mitchell aimed to get a federal job under the Trump administration. Mitchell served as a volunteer lawyer for Trump’s presidential transition team, and the former president sought to appoint him president of the 2017 U.S. Administrative Conference.

Mitchell is no stranger to defending Texas abortion laws and the state’s ideologically driven reproductive health policies. As an attorney general from 2010 to 2015, he helped maintain a burdensome 24-hour law before the abortion sonogram; a decision to fire 50,000 low-income parent patients from a Medicaid program; and an omnibus 2013 Texas abortion law that actually closed half of the state’s clinics before it was struck down by the U.S. Supreme Court in 2016.

He went on to defend views against abortion after his tenure: in 2019, he represented a former councilor in Austin who sued the city to invest funds in logistical abortion care and activists in East Texas who wanted to consider abortion fund groups “criminal.” .

In recent years, Mitchell has spent considerable time defending the “sanctuary of the unborn” scheme – the plan for SB8. Without exception for rape or incest, municipal ordinances allow any “surviving relative of the aborted unborn child” to sue abortion providers or anyone who “helps or kills” abortion in civil court. Since 2019, the movement has grown to 37 cities, including cities in Ohio and Nebraska. Although largely symbolic (most cities had no abortion clinics to begin with), the movement successfully stopped abortion services in June in Lubbock, Texas, the largest city that adopted the regulation.

Mitchell also represents Mark Lee Dickson – leader of the “sanctuary of the unborn” movements – in both a defamation case by abortion advocacy groups fighting the ordinances and in the greater legal challenge that abortion providers have brought against SB8. He also represented, at no cost to taxpayers, the first seven East Texas cities to pass the Abortion Fund Groups Ordinance. In a phone interview with The Guardian, Dickson called Mitchell a “good guy” who did an “excellent job.”

But Mitchell’s legal battles are not limited to reproductive rights. A legal crusader against LGBTQ protection, Mitchell defended companies that wanted to fire employees based on sexual orientation and fought for local protection for LGBTQ residents in Texas.

Mitchell is also the “driving force” behind lawsuits against unions and has filed 21 class actions against unions over two years in several states. And he represents anti-affirmative action against Harvard and NYU Law Reviews claiming bias against white men. The publications deal with “race and gender discrimination” by preferring articles written by women or racial minorities, the suit reads.

The answer to who funded Mitchell’s legal work has been somewhat elusive. His funds appear to come in part from right-wing and conservative companies, including the Thomas More Society; Texas Alliance for Life; Texas Values; and the conservative think tank Hoover Institute, according to financial records that account for revenue from 2015 to 2017. In 2019, the powerful conservative religious group Alliance Defending Freedom began paying Mitchell’s law firm more than $ 36,000 for services listed as “religious freedom,” The Guardian previously reported.

‘Deeply nihilistic’

Mitchell’s work defending abortion laws in Texas provides insight into his legal ideology: in those cases, he argued that because Texas never officially repealed its statutes before Roe v Wade, which bans abortion, clients should be able to consider the laws largely enforceable. “The Supreme Court’s judgment in [Roe] did not cancel or formally revoke Texas abortion statutes, and the judiciary has no power to delete a statute that it believes is unconstitutional, ”he writes.

This is in line with Mitchell’s general belief that the judiciary has an overly strong – and misunderstood – role in the eyes of the public. He criticizes what he believes is the widespread public misunderstanding of the federal court’s powers, especially when the court “blocks” a law. “The legally rejected statute continues to exist as a law until it is repealed by the legislature that adopted it, even if it is not enforced” by the judiciary or the executive.

The latest abortion ban in Texas, SB8, can be seen as a “direct reflection” of Mitchell’s legal philosophy, says Mary Ziegler, a law professor at Florida State University and author of Abortion and Law in America: Roe v Wade to the Present. For example, the use of the term “complicity,” which is typically criminal language, rather than civil, signals that the Roe’s court ruling never invalidated Texas’ ban on abortion, which remains on the books – it simply meant they could not enforce it.

Mitchell seeks to encourage lawmakers to enact laws that can better protect against legal challenges. In his 2018 legal essay, Writ of Erasure Fallacy, he writes that lawmakers can “Provide private enforcement of the statute for authorization of civil proceedings […] These mechanisms are particularly powerful because they allow private lawsuits to enforce a statute, even after a federal district court has ordered the executive to enforce it. ”

In its lawsuit against Texas to stop SB8, the US DoJ cites Mitchell’s essay as evidence that the architect of the abortion law intended to curb judicial control.

Steve Vladeck, a professor at the University of Texas Law School who specializes in federal courts, says Mitchell’s legal views are “deeply nihilistic.” Although his attempt to illuminate the role of the judiciary is useful, he “exploits” the analysis to make constitutional rights “dependent on the whims of state law.”

Women's rights activists are participating in the nationwide Women's March, which was held after Texas over the weekend rolled out an almost total ban on abortion procedures and access to abortion-inducing drugs in Austin, Texas.
Women’s rights activists are participating in the nationwide Women’s March, which was held after Texas over the weekend rolled out an almost total ban on abortion in Austin, Texas. Photo: Evelyn Hockstein / Reuters

“It allows states to deprive their citizens of the most clearly established and inviolable rights,” Vladeck said. “It is incredibly dangerous – if our constitutional rights are only as good as the state legislature chooses to leave them, then they are not worth anything. It promotes tyranny of the majority. ”

Mitchell’s legal idea can be applied to everything from “campaign finance legislation, to a gun control measure … to an abortion regulation,” he writes. While states are increasingly overcoming burdensome abortion restrictions, and the U.S. Supreme Court appears to be getting rid of Roe during this period, abortion rights are weak and ripe for testing.

And Texas could be considered a perfect breeding ground: the Republican-dominated Texas lawmaker, who easily passed some of the most draconian abortion laws in the United States, finds an ally in the largely conservative Fifth District Court and a Supreme Court now stacked with abortion courts .

“Mitchell is using his intellectual ability to push for rather significant and radical changes in legal doctrine – and I do not see how that is not ideologically motivated,” Vladeck says. “Even though you feel so fair in a case, how do you reconcile the fact that you inflict so many injuries on so many?”

Ziegler knows Mitchell’s legal ideology. As a historian for the abortion rights movement, she regards him as a figure who “interestingly builds a bridge between the old school legal elite and populist elements that dominate the anti-abortion movement”. He deviates from the anti-abortion movement’s recent affiliation with the justice system, she says, making his approach different.

“SB8 is a radical extension of the abortion law,” she says. “In the past, states have been concerned about the costs and consequences of losing the fight for abortion. Now Texas has a ‘get your cake and eat it too’ approach with this law. ”

This legal arrangement appears to be spreading in the United States: given the success of the Texas-based approach, GOP officials in 11 other states, including Arkansas, Mississippi, Indiana, and North Dakota, have expressed interest in adopting similar measures. A Republican lawmaker in Florida recently introduced an SB8-like abortion ban that would put enforcement in the hands of private citizens.

“We are appalled to see Florida anti-election politicians follow in Texas’ footsteps, and there is no doubt that lawmakers hostile to reproductive freedom in other states will do the same,” said Adrienne Kimmell, acting president of Naral Pro-Choice America. “The damage done by these draconian attacks cannot be overstated, and they most acutely affect those who are already facing the biggest barriers to access to care.”

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