The Man Defending the Texas Abortion Law at the Supreme Court Is Truly Awful

The architect of SB8, lawyer Jonathan Mitchell, also dislikes LGBTQ people, birth control, and affirmative action.

The Man Defending the Texas Abortion Law at the Supreme Court Is Truly Awful
Screenshot:Stanford Law School/YouTube (Fair Use)

On Monday, the Supreme Court will hear arguments in two challenges to Texas’ 6-week abortion ban, which deputizes private citizens to sue abortion providers and anyone who aids and abets an abortion in the state after the detection of embryonic cardiac activity. (There is a different Supreme Court abortion case out of Mississippi being heard on December 1.)

Lawyer Jonathan Mitchell concocted the bounty-hunter scheme as a way to prevent courts from blocking the law, and he has mostly been successful so far: The Texas law has been in effect for all but two brief days since September 1. The Supreme Court will decide whether a group of providers and abortion funds, and separately, the US Department of Justice, can sue to get the law blocked. In the latter challenge, Mitchell himself will defend his evil creation in front of the nine Justices.

Mitchell, who clerked for archconservative former Justice Antonin Scalia and was once the solicitor general for Texas, is quite a piece of work. He’s a member of the right-wing legal group the Federalist Society, helped write the Texas abortion law the Supreme Court struck down in 2016, tried and failed to get two different Senate-confirmed jobs in the Trump administration, has done “religious freedom” work for Alliance Defending Freedom, a legal organization that the Southern Poverty Law Center designates as a hate group for its anti-LGBTQ advocacy, and seemingly hates unions. But wait, there’s more!

Here is a non-exhaustive list of Mitchell’s retrograde view to keep in mind when reading coverage of the Supreme Court arguments.

Mitchell Hates Birth Control and Non-procreative Sex

He argued in an official Supreme Court brief in the separate Mississippi case that the landmark abortion decisions Roe v. Wade and Planned Parenthood v. Casey “invent[ed] and impose[d] constitutional rights that have no basis in constitutional text or history” and should be overruled. In a March 2020 class action lawsuit challenging the Obamacare birth control coverage requirement, Mitchell said birth control isn’t preventive care because it’s not needed to prevent pregnancy when women can just close their legs instead:

“Contraception and sterilization are simply devices that enable women who do not wish to become pregnant—but who are unwilling to refrain from sexual intercourse—to engage in sexual intercourse while greatly reducing their risk of pregnancy.”

If the Court does as he wishes and overturns Roe, he reiterated his view that women who don’t want children can simply stop boning: “Women can ‘control their reproductive lives’ without access to abortion; they can do so by refraining from sexual intercourse.” Please note the total erasure of the impregnating parties from this picture.

Mitchell Hates LGBTQ rights

Not a fan! In his brief in the Mississippi case, he claimed that sex with a same-sex partner (Lawrence v. Texas, 2003) and marriage equality (Obergefell v. Hodges, 2015) are court-invented rights that are just “as lawless as Roe” and invited the court to overturn them alongside Roe. He has referred to LGBTQ people as engaging in “homosexual behavior” and “homosexual conduct” and during a 2018 Federalist Society forum, he called transgender people “transgendered,” a term that GLAAD says artificially separates trans from lesbian, gay, bisexual, and queer. They note that you wouldn’t call Elton John “gayed.” Also in 2018, he represented a group seeking exemptions to anti-discrimination rules so they could refuse to hire LGBTQ people it if counters their religious beliefs.

Mitchell Hates Diversity Standards

Discrimination, actually! In 2018, Mitchell represented a group of people who objected to the Harvard Law Review’s use of “race and sex preferences” to select its members and the articles it publishes, rather than just academic merit as it had in the past. Mitchell argued that in HLR’s effort to have more representation of women and people of color, the law journal was discriminating against people who are white or male. He extended the reverse discrimination argument to sexual orientation as well and said at a Federalist Society event: “Harvard’s policy that gives preferences to homosexuals is illegal under Title IX.” Mitchell even did a full racism by claiming that the law review injures people who submit articles because its race and sex policies “dilut[e] the quality of the students” running the journal:

Because the Harvard Law Review has subordinated academic merit to diversity considerations when selecting its members and editors, the articles that FASORP members submit to the Law Review are judged by less capable students—and these are the students who will ultimately make the career-altering decision of whether a professor’s article gets accepted for publication or rejected.

Jonathan Mitchell, everyone. What a guy!

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