The legal architect of the Texas abortion ban argued in a Supreme Court brief that overturning Roe v Wade, the landmark ruling that guarantees abortion rights in the United States, could get women to abstain from sex. as a way to “control their reproductive life”.
Former Texas solicitor general Jonathan Mitchell, who played a central role in shaping the legal framework for the state’s near-total abortion ban, also argued on behalf of the anti-abortion group Texas Right to Life that women would still be able to terminate a pregnancy if Roe was toppled by traveling to “wealthy pro-abortion” states like California and New York with the help of “taxpayer grants”.
“Women can ‘control their reproductive life’ without having access to abortion; they can do it by abstaining from sex, ”Mitchell wrote in the brief. “You can imagine a scenario where a woman has chosen to have unprotected (or insufficiently protected) sex on the assumption that an abortion will be available to her later. But when that court announces Roe’s annulment, that person can simply change their behavior in response to the court’s decision if they no longer want to risk an unwanted pregnancy.
The Supreme Court is due to hear a Mississippi case that term which experts say could lead to the Roe ruling being overturned by the court’s conservative majority. The argument was made in an amicus, or “friend of the court,” a brief in which outside parties can make submissions on cases in court. The case was filed on July 29, about four weeks before the Texas abortion ban went into effect.
In the same brief, which calls for Roe to be overturned, Mitchell and co-counsel Adam Mortara, an anti-abortion activist and lawyer who worked for Supreme Court Justice Clarence Thomas, said such a decision could open the door to others “without law” rights and protections to be overturned, including the right to have same-sex sex and the right to same-sex marriage.
The lawyers argued that while it was not necessary for the High Court to immediately overturn legal cases that enshrine these rights, “the court should also not hesitate to write an opinion that leaves these decisions in abeyance.”
These cases (Lawrence, which outlawed criminal sanctions against people having same-sex sex, and Obergefell, which legalized same-sex marriage) were “much less dangerous to human life,” they said, but just as “lawless. than Roe ”.
It’s common for high-profile cases like the Mississippi abortion case to spark amicus briefs by activists and lawyers seeking to influence the legal debate.
But Mitchell and Mortara’s brief is important because the High Court conservatives recently ruled in a controversial 5-4 decision to allow a Texas law designed by Mitchell and actually banning abortions after about six weeks, before most people know they are Pregnant.
While the majority of the judges stressed that they had yet to rule on the constitutionality of the Texas law itself, the ruling showed that the majority was receptive to Mitchell’s legal strategy.
The abortion case that the Supreme Court will hear this term focuses on the legality of a Mississippi law that can ban abortion at 15 weeks gestation. Roe gives pregnant women the right to an abortion for up to about 24 weeks, or the point at which a fetus can live outside the womb.
Court decision to hear case alarmed reproductive rights activists because he blatantly violates the standard set by Roe. Today, in the wake of the near-total ban on abortion in Texas, the possibility that the court could overturn the constitutional right to abortion has become evident. Such a move could come despite polls showing most Americans believe abortion should be legal in most circumstances.
At the heart of Mitchell and Mortara’s argument in the Mississippi case is the view that Roe’s cancellation would not ban all abortions in the United States, but would “simply” return the matter to individual states, who could individually decide to prohibit or restrict interruptions. More than half of American states are hostile to the right to abortion.
“But women who reside in those states can travel to pro-abortion states to have an abortion – and ‘abortion funds’ are plentiful across the country, eager to pay for travel and related costs. abortion for needy women seeking to abort their pregnancy, ”they said.
Mitchell has been the subject of media attention since it became clear that he helped design Texas law, which allows private citizens to sue anyone who “helps or encourages” a pregnant woman to do so. abort after about six weeks.
This structure, which one legal expert described as a “fig leaf” for the state, led to the Supreme Court’s refusal to block the law, with a 6-3 majority describing the law as presenting “procedural issues. complex antecedents ”that needed to be argued.
Mitchell has been described in some media accounts as an outsider in the conservative justice network that has spearheaded the campaign to sit as anti-abortion judges and judges for decades. But a review of Mitchell’s case revealed that the former clerk of Antonin Scalia, the late Conservative Supreme Court justice, has ties to groups and organizations that are at the heart of the Tory movement. These organizations, in turn, have direct links with conservative members of the court.
In 2016, in emails published after a Freedom of Information Act request, Mitchell’s name was mentioned by Henry Butler, then Dean of George Mason Law School, as a person he and Leonard Leo , the head of the conservative Federalist Society, would consider hiring.
Leo, who is known to have selected a short list of potential Supreme Court candidates for Donald Trump when he took office, has been credited by Tories for building a tribunal that would one day overthrow Roe.
Mitchell’s friends and colleagues say Mitchell and Leo don’t have a particularly close relationship.
In 2019, the powerful conservative religious law group Alliance Defending Freedom (ADF) began paying Mitchell’s private law firm for services listed as “religious freedom.” The payment of over $ 36,517 came as Mitchell simultaneously built case law on his unusual legal theory, the same provision that would define Texas’ six-week abortion ban called SB8.
In an email, Mitchell declined to answer questions from The Guardian about the nature of his work for ADF.
ADF was in the spotlight in 2020 after it emerged that Trump’s last candidate to sit on the court, Amy Coney Barrett, was a paid speaker for an ADF-run program, which was created to inspire a “vision. of the distinctly Christian world in all areas of law. ”. The head of the organization, Michael Farris, attended the infamous Rose Garden event in which Barrett was appointed to replace Ruth Bader Ginsberg. The event would later become a super-broadcast event in which several individuals, possibly including Trump, contracted Covid-19.