The legal architect of the Texas abortion ban has argued in a Supreme Court writ that overturning Roe v. Wade, the decisive decision guaranteeing the right to abortion in the U.S., would force women to practice abortion. abstinence as a way to “control their reproductive life.” .
Former Texas Attorney General Jonathan Mitchell, who played a key role in designing the state’s almost total abortion ban legal framework, also argued on behalf of the Texas anti-abortion group Right to Life that women could still terminate pregnancies if Roe was canceled traveling to “pro-abortion-rich” states like California and New York with the help of “taxpayer subsidies”.
“Women can ‘control their reproductive life’ without access to abortion; they can do so by abstaining from sexual intercourse,” Mitchell wrote in the paper. “One can imagine a scenario in which a woman has chosen to have unprotected (or insufficiently protected) sex assuming that an abortion will be available to her later. But when that court announces Roe’s annulment, that individual can change his behavior in response to the court’s decision if he no longer wants to take the risk of an unwanted pregnancy. “
The Supreme Court will have to hear a Mississippi case this term that experts say could lead to Roe’s defeat by the conservative majority in court. The argument was made in a brief amicus, or “friend of the court,” in which outside parties can file arguments about cases in court. The document was filed on July 29, about four weeks before the Texas abortion ban went into effect.
In the same writ, which calls for Roe to be revoked, Mitchell and his counselor Adam Mortara, an anti-abortion activist and lawyer who served as Supreme Court Justice Clarence Thomas, said the decision could open the door. to other “illegals”. ” rights and protections are reversed, including the right to have homosexual intercourse and the right to same-sex marriage.
Lawyers argued that while it was not necessary for the high court to immediately overturn legal cases enshrining these rights, “neither should the court hesitate to write an opinion that leaves these decisions hanging by a thread.” .
These cases (Lawrence, which banned criminal sanctions against people who practiced gay sex, and Obergefell, which legalized same-sex marriage) were “much less dangerous to human life,” they said, but “as illegal as Roe “.
High-profile cases, such as the Mississippi abortion case, often provoke amicus writings by activists and lawyers who want to delve deeper into the legal debate.
But Mitchell and Mortara’s writing is significant because conservatives in the high court recently ruled a controversial 5-4 decision to allow a Texas law designed by Mitchell to be maintained and, in effect, prohibits abortions before most people know she is pregnant.
While most judges stressed that they had not yet ruled on the constitutionality of Texas law itself, the ruling showed that the majority was receptive to Mitchell’s legal strategy.
The next abortion case the Supreme Court will hear this term focuses on the legality of a Mississippi law that may prohibit abortion at 15 weeks of gestation. Roe gives pregnant women the right to have an abortion for up to about 24 weeks, or to the point where a fetus can live outside the womb.
The court’s decision to hear the case has alarmed proponents of reproductive rights because it blatantly violates the standard set by Roe. Now, in the wake of Texas ’near-total abortion ban, the possibility that the court could overturn the constitutional right to abortion has been highlighted. This ruling could come despite polls showing that 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 toppling Roe would not ban all abortions in the United States, but would “simply” return the issue to individual states, which could decide individually whether to ban or restrict terminations. More than half of U.S. states are hostile to abortion rights.
“But women residing in these states can travel to pro-abortion states to get their abortions, and there are no“ abortion funds ”across the country that want to pay for travel and related costs. with abortion for indigent women seeking to abort their pregnancies, ”they said.
Mitchell has been the subject of media attention since it became clear that he had helped devise Texas law, which allows private citizens to sue anyone who “helps or incites” a pregnant woman to get an abortion for about six weeks.
This structure, which a legal expert called the “fig leaf” for the state, provoked the Supreme Court’s refusal to block the law, with a 6-3 majority describing the law as “antecedent procedural issues. complexes ”that needed to be litigated. .
Mitchell has been portrayed in some media accounts as a stranger to the conservative judicial network that has driven the push to sit judges and judges against abortion in recent decades. But an examination of Mitchell’s case has shown that Antonin Scalia’s former secretary, the late Conservative Supreme Court judge, has links to groups and organizations that are at the center of the Conservative movement. These organizations, in turn, have direct links with conservative members of the court.
In 2016, in emails published following a request for the Freedom of Information Act, Mitchell’s name was raised by Henry Butler, the then dean of the 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 shortlist of potential Supreme Court candidates for Donald Trump when he took office, has been credited by the Conservatives for having built a court that would one day overturn Roe.
Mitchell’s friends and colleagues say that Mitchell and Leo do not have a particularly close relationship.
In 2019, the powerful and conservative religious law group Alliance Defending Freedom (ADF) began paying Mitchell’s private law firm for services listed as “religious freedom.” The payment of more than $ 36,517 came when Mitchell was simultaneously building jurisprudence on his unusual legal theory, the same provision that would go so far as to define a six-week abortion ban across the state of Texas, called SB8.
In an email, Mitchell declined to answer questions from the Guardian about the nature of his work for ADF.
The ADF was in the spotlight in 2020 after it was revealed that Trump’s final candidate for court, Amy Coney Barrett, was a paid speaker for an ADF-led program, which was created to inspire a “clearly Christian worldview in all areas of law.” The head of the organization, Michael Farris, attended the infamous Rose Garden event in which Barrett was nominated to replace Ruth Bader Ginsberg. Subsequently, the event would emerge as a super outreach event in which several people, including possibly Trump, hired Covid-19.