Behind the Texas Abortion Law, a Persevering Conservative Lawyer
Jonathan Mitchell has never had a high profile in the anti-abortion movement, but he developed and promoted the legal approach that has flummoxed the courts and enraged abortion rights supporters.
Not only had the court gutted the legislation, which Mr. Mitchell had quietly worked on a few years earlier as the Texas state government’s top appeals court lawyer, but it also had called out his attempt to structure the law in a way that would prevent judicial action to block it, essentially saying: nice try.
“We reject Texas’ invitation to pave the way for legislatures to immunize their statutes” from a general review of their constitutionality, Justice Stephen G. Breyer wrote in the majority’s opinion.
For Mr. Mitchell, a onetime clerk to Justice Antonin Scalia, the decision was a stinging rebuke, and he vowed that if he ever had the chance to help develop another anti-abortion law, he would ensure it survived at the Supreme Court.
Last month, he got his chance. With its ideological balance recast by President Donald J. Trump, the court refrained from blocking a new law in Texas that all but bans abortion — a potential turning point in the long-running fight over the procedure. And it was the deeply religious Mr. Mitchell, a relative unknown outside of Texas in the anti-abortion movement and the conservative legal establishment, who was the conceptual force behind the legislation.
The court’s decision did not address the law’s constitutionality, and the legislation will no doubt face more substantive challenges. But already, the audacious legislative structure that Mr. Mitchell had conceived of — built around deputizing ordinary citizens to enforce it rather than the state — has flummoxed lower courts and sent the Biden administration and other supporters of abortion rights scrambling for some way to stop it. . .
Mr. Mitchell represents a new iteration of the anti-abortion campaign. Instead of focusing on stacking the courts with anti-abortion judges, trying to change public opinion or pass largely symbolic bills in state legislatures, Mr. Mitchell has spent the last seven years honing a largely below-the-radar strategy of writing laws deliberately devised to make it much more difficult for the judicial system — particularly the Supreme Court — to thwart them, according to interviews.
How he pulled it off is a story that brings to life the persistence of the anti-abortion movement and its willingness to embrace unconventional approaches based more on process than moral principle.
Never an especially prominent, popular or financially successful figure in the conservative legal world — he was best-known for litigation seeking to limit the power of unions — Mr. Mitchell, 45, is only now emerging as a pivotal player in one of the most high-profile examples yet of the erosion of the right to abortion.
As his role has started to become more widely known, he has drawn intense criticism from abortion rights supporters not just for restricting access to the procedure but also for what they see as gaming the judicial system through a legislative gimmick they say will not withstand scrutiny. . . \
> 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,” he said. “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.”
. . .Drawing from an idea that he had first floated in a 2018 law review article, Mr. Mitchell said that there was a provision that could be added to the ordinance outlawing abortion in Waskom while stripping the town government of authority for enforcing the ban. Instead enforcement power would be given to ordinary citizens, who could bring lawsuits themselves to uphold the ban. . .
> Concluding that writing provocative and novel legal analysis would attract the attention of the top law schools, Mr. Mitchell wrote a law review article based on his experience in Texas, where he saw up close how the vulnerabilities in laws produced by the State Legislature were being used to challenge them in court.
Understand the Texas Abortion Law
The most restrictive in the country. 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 preganancy and makes no exceptions for pregnancies resulting from incest or rape.
That article, “The Writ-of-Erasure Fallacy,” published in 2018, would 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. . .
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