Persevering lawyer behind Texas abortion law
Jonathan F. Mitchell grew increasingly dismayed as he read the Supreme Court’s decision in June 2016 striking down major portions of a Texas anti-abortion bill he had helped write.
Not only had the court gutted the legislation, which 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 Breyer wrote in the majority’s opinion.
For 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 former President Donald 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 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 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.
“Jonathan could have given up, but instead it galvanized him and directly led to the more radical concepts we see” in the new Texas law, said Adam Mortara, a conservative legal activist who is one of Mitchell’s closest friends.
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, 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 — 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.
“It grinds my gears when people say what’s been done here is genius, novel or particularly clever; it was only successful because it had a receptive audience in the Supreme Court and 5th Circuit,” said Khiara M. Bridges, a professor of law at the University of California, Berkeley, referring to the conservative-leaning federal appeals court that also weighed in on the Texas law.
“If you want to overturn Roe v. Wade, you create a law that is inconsistent with the Supreme Court’s precedent, and someone will challenge it,” and you work through the federal courts, she said. “You don’t create a law that is designed to evade judicial review.”