September 12, 2021

The Conservative Lawyer Behind the Texas Abortion Law

The Conservative Lawyer Behind the 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 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.

“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 Mr. Mitchell’s closest friends.

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.

“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 Fifth Circuit,” said Khiara M. Bridges, a professor of law at the University of California at 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 it through the federal courts,” she said. “You don’t create a law that is designed to evade judicial review.”

This article is based on interviews with anti-abortion activists who worked with Mr. Mitchell, reproductive rights advocates, friends and legal experts, and a review of Mr. Mitchell’s writings.

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.”

Mark Lee Dickson, an anti-abortion activist, was sitting in a Chick-fil-A in eastern Texas in the late spring of 2019. Rumors were circulating that an abortion clinic in the nearby city of Shreveport, Louisiana, might relocate over the state line to the border town of Waskom, Texas.

The mayor of Waskom had asked Mr. Dickson to draft an ordinance that would outlaw abortion clinics in the town of 2,000 people.

But, Mr. Dickson recalled, he was concerned about giving the ordinance to the mayor, fearing that if the town enacted it, groups like the American Civil Liberties Union would quickly sue, saddling it with legal bills that would bankrupt it.

Mr. Dickson texted Bryan Hughes, a Republican Texas state senator who represented the area.

Mr. Hughes replied that he had the perfect lawyer for him: Jonathan Mitchell, who had left his role as Texas solicitor general in 2015 and was running a one-man law firm.

Credit…via Jonathan F. Mitchell

Mr. Hughes described Mr. Mitchell’s bona fides.

“He was a law clerk for Scalia and had been quoted by Alito and Thomas and was the former solicitor general of Texas — I automatically had respect for him because being in those positions, he was definitely the right person to talk to,” Mr. Dickson said.

Sitting in his 2008 white Ford F-150 pickup truck in the parking lot of the Chick-fil-A, Mr. Dickson had a conference call with Mr. Mitchell and Mr. Hughes, and Mr. Mitchell said that he had a solution.

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.

Mr. Mitchell’s explanation convinced Mr. Dickson that the provision would protect the town from being bankrupted. The two men worked together to have the provision added to the ordinance and in June 2019, the City Council, in a 5-to-0 vote, passed it.

All five votes for the ordinance were cast by men. At the time, the ordinance received little attention, even though it appeared to be the first time that a city in the United States had passed a law that outlawed abortion since the Roe v. Wade decision 46 years earlier.

In the end, it proved largely symbolic, since no abortion provider tried to move to Waskom.

But the passage of the ordinance galvanized Mr. Dickson and Mr. Mitchell. Throughout 2020, Mr. Dickson crisscrossed Texas, meeting with local officials — many who represented cities and towns that were unlikely to ever become home to an abortion clinic — to press them to enact similar ordinances.

With Mr. Mitchell helping with the legal wording needed in the ordinance, Mr. Dickson persuaded over 30 cities to adopt the law. Mr. Mitchell was so confident in the provision that he assured the towns he would represent them at no cost to taxpayers if they were sued.

Anti-abortion activists and legal experts closely watching the issue across the state — and the country — started taking notice.

“We would not have the Texas abortion law without Waskom” said Mary Ziegler, a law professor at Florida State University and legal historian.

“It was a super local story,” she said, “and something people ignored, but ended up changing the national conversation.”

The oldest of seven brothers, Mr. Mitchell was raised in a religious Christian home in Pennsylvania. He attended Wheaton College, a small school in Illinois that “prepares students to make an impact for Christ,” according to its website. Friends refrain from calling him on Sundays, as they know he spends at least several hours at church.

Despite his Supreme Court clerkship and having held jobs with the state of Texas and the Justice Department and in academia, he had struggled to find a consistent paying job in the years after he was replaced as solicitor general in Texas.

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.

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.

But his writings failed to win him a tenure track teaching offer, and efforts to land a job in Washington after Mr. Trump was elected president in 2016 also fizzled.

After losing out on jobs in the Justice Department and the Office of Management and Budget, he was nominated by Mr. Trump to lead the Administrative Conference of the United States, an obscure federal agency that tries to make the government more efficient.

But Senator Sheldon Whitehouse of Rhode Island, a top Democrat on the Judiciary Committee, demanded that Mr. Mitchell answer questions about whether he had taken money from donors to pursue cases that would help the far right, including his anti-union work, according to a copy of a letter Mr. Whitehouse sent him.

In response, Mr. Mitchell said that he had not received such funds. But the answers failed to satisfy Mr. Whitehouse, who essentially killed his nomination.

Colleagues say that one reason Mr. Mitchell struggled to find employment is that he shows no interest in the subtleties of politics. He is often so focused on the weedy legal issues of the day, they said, that he failed to pay attention to the world around him. During his tenure as a clerk on the Supreme Court, he ate lunch nearly every day at the same Mexican restaurant, but after a year of going there, he still did not know its name.

By the summer of 2018, Mr. Mitchell decided to open a one-person law firm. With Mr. Trump driving the Supreme Court rightward with his nominees, Mr. Mitchell calculated that the court would be more sympathetic to cases in areas like religious freedom, abortion, and affirmative action that big law firms would not take on because they were politically divisive.

To keep his one-man shop going, Mr. Mitchell reached an agreement with Juris Capital, a company that finances small law firms in exchange for a share of damages they win in litigation. Juris agreed to give him $18,000 a month to finance his firm’s operations.

Back at the Texas State Legislature in late 2020, Mr. Hughes was helping plot Republican plans for their legislative agenda. Mr. Hughes mentioned to Mr. Mitchell that he planned to introduce a so-called heartbeat bill, which would make it illegal to have an abortion after early fetal cardiac activity is detected roughly six weeks into pregnancy.

Mr. Mitchell told him that was a terrible idea. A pattern had emerged in which similar laws passed by state legislatures were thwarted by federal judges.

Mr. Hughes asked whether there was any way they could come up with a bill that would survive challenges in the court. Mr. Mitchell immediately cited the growing success of the municipal-level effort that had started in Waskom to alter the way anti-abortion laws would be enforced.

“It’s going to require outside-the-box thinking and you to persuade your colleagues of a different approach — it can be done; give me the pen and I’ll give you the language,” Mr. Mitchell told Mr. Hughes.

Mr. Mitchell wrote into the heartbeat bill the same provision that he had written about in the journal article and that served as the core of ordinances in dozens of cities across Texas.

Republican state senators remained skeptical. How could a law be enforced that the state itself was being prohibited from enforcing? Why was it not a criminal law — would that not make it toothless?

Mr. Hughes arranged a conference call between Mr. Mitchell and a dozen staff members and senators. Mr. Hughes listened as Mr. Mitchell walked his colleagues through his idea.

“No lawyer can guarantee it will work — I can’t guarantee it’s going to work, but it will have a fighting chance, and will have a better chance than a regular heartbeat law,” Mr. Mitchell said.

By the end of the call, nearly everyone was on board.

In May, when Gov. Greg Abbott signed the law, he did not thank or even mention Mr. Mitchell. Mr. Mitchell did not attend the ceremony.

Matthew Cullen contributed research.



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