The road to a Texas law that bans most abortions in the state, bypassing the landmark 1973 Supreme Court decision Roe v. Wade for now, began in a town called Waskom, which has a population of 1,600.
The Supreme Court’s decision last week not to interfere with the state’s strict abortion law has drawn outrage from liberals and cheers from many conservatives. President Joe Biden attacked him. But the ruling also surprised many that Texas could essentially thwart Supreme Court precedent on women’s constitutional right to abortion.
Texas abortion law SB 8 follows a model first used in Waskom to ban abortion within its boundaries in 2019. The new legal approach used by the city on the Texas border with Louisiana is one envisioned by a former top state attorney.
Right to Life East Texas director Mark Lee Dixon, 36, a Southern Baptist minister, defended Waskom’s abortion ban. Through his state senator, Bryan Hughes, he met Jonathan F. Mitchell, a former prominent Texas state attorney. Mitchell became his attorney and advised him on the crafting of the order, Dixon said in an interview.
The ordinance shields Waskom from lawsuits by saying city officials cannot enforce the abortion ban. Instead, private citizens can sue anyone who performs an abortion in the city or helps someone get one. The law was largely symbolic, however, as the city did not have a clinic performing abortions.
Nearly three dozen other towns in the state have followed Waskom’s lead. Among them is Lubbock, where a Planned Parenthood clinic stopped performing abortions this year.
Mitchell declined interviews, but Dixon called him a “brilliant guy” and said he was “tremendously grateful” for his help. Hughes, who later became the author of the Texas law, echoed those sentiments. The two have known each other for years.
Although Hughes does not attribute credit for Texas’ approach to any one person, saying that many lawyers and law professors advised the legislation, SB 8 ultimately followed the Waskom model in terms of enforcing the law. law.
The law, signed by Republican Gov. Greg Abbott in May, bans abortions once medical professionals can detect heart activity, usually about six weeks and before many women know they are pregnant. At least 12 other states have enacted early pregnancy bans, but all have been blocked from going into effect.
Unlike the laws of other states, however, Texas law is unique in that it prohibits state officials from enforcing the ban. Instead, he created a so-called private right of action allowing anyone — even someone outside of Texas — to sue abortion providers and anyone else who helps someone recover. abort. Under the law, anyone who successfully sues another person would be entitled to at least $10,000.
The private right of action wrinkle Mitchell envisioned has so far prevented challenges to the law from succeeding.
Mitchell, 45, has spent the past 15 years bouncing back and forth between government work and teaching at law schools such as Stanford and the University of Texas at Austin. A graduate of Wheaton College and the University of Chicago School of Law, he clerked for the late conservative Supreme Court Justice Antonin Scalia.
And he then served as Solicitor General of Texas from 2010 to 2015. He was a pro bono lawyer on former President Donald Trump’s transition team and was unsuccessfully appointed by Trump to lead an agency to improve the functioning of government.
William Baude, a law professor at the University of Chicago, called him a “born law professor”, “creative and competent”.
A law review article Mitchell wrote that was published in 2018 offered advice to lawmakers worried about the courts blocking their laws. He said lawmakers could protect their legislation by including a private right of action. He said the strategy could apply to a wide range of laws such as campaign finance, gun control and abortion.
“It is virtually impossible to challenge before the application of laws that establish private rights of action, because the litigants who will apply the law are difficult to identify until they have brought a lawsuit,” he said. he writes in a footnote.
In the case of the Texas law, things turned out just as he predicted.
Yet even some conservatives have questioned Texas’ approach. Disagreeing with the High Court’s decision not to intervene last week, Chief Justice John Roberts called the Texas law “not only unusual, but unprecedented”.
“The legislature imposed a ban on abortions after about six weeks, then essentially delegated the enforcement of that ban to the general population,” he wrote. “The desired consequence appears to be to insulate the state from responsibility for the implementation and enforcement of the regulatory regime.”
Liberal Justice Sonia Sotomayor was candid. “There is no way that a state can escape federal judicial review by outsourcing the enforcement of unconstitutional laws to its citizens,” she wrote.
However, the High Court action is unlikely to be the final word on the law. Further legal challenges now that the law is in effect are likely.
GOP lawmakers and abortion opponents in at least five other Republican-controlled states — Arkansas, Florida, Indiana, North Dakota and South Dakota — have said they are considering pass bills similar to Texas law and its citizen enforcement provision.