What We Know About the Conservative Lawyer Behind S.B. 8
Jonathan Mitchell, the architect of Texas' six-week abortion ban, hit on a legal loophole when he was drafting "pro-life" city ordinancesAbortionPolitics
According to a New York Times report, the origins of S.B. 8—the six-week abortion ban that has been in effect in Texas for well over a week—can be traced back to a Chick-fil-A.
In spring 2019, Mark Lee Dickson, the director of the anti-abortion group East Texas Right to Life, was sitting in one of the fast food restaurant’s local franchises, struggling to draft a piece of legislation that would help the city of Waskom, Texas, ban abortion. In need of some advice, he texted a Republican state senator who referred him to Jonathan Mitchell, a former law clerk of the late Supreme Court Justice Antonin Scalia who was running a one-man law practice. According to the Times, Dickson called Mitchell and the state Senate Republican from his car in the parking lot. During the three-way call, Mitchell suggested Dickson write in a provision that would prohibit the government from enforcing the abortion ban and instead empower private citizens to enforce the ban through civil lawsuits. (This is probably starting to sound familiar!) Though he’d proposed the idea in a 2018 law review article, he had not yet realized it through legislation.
Not long after their conversation, Waskom became the first city in Texas to declare itself a “sanctuary city for the unborn; the ordinance was passed unanimously by an all-male city council. Within months similar ordinances were implemented across Texas—usually in small, rural cities that didn’t have any abortion clinics to begin with. But soon enough the legal loophole at the heart of the ordinances—that is, the private enforcement mechanism—succeeded in getting a Planned Parenthood in Lubbock, Texas to stop providing abortions. The so-called “sanctuary cities” ordinances served as the theoretical and practical precedent for S.B. 8: They proved that it was legally possible to put into an effect a blatantly unconstitutional law, and that the threat of financial ruin (via lawsuits) could force abortion providers to comply.
Mitchell—who had failed to secure a job in the Trump administration in 2016, as he’d hoped—is described by the Times as someone who “struggled to find employment,” partly because he had “no interest in the subtleties of politics.” But he had an apparent interest in the subtleties of the law: After his success with the Texas city ordinances, Mitchell caught wind of Texas legislators’ intentions to reintroduce a six-week “heartbeat” ban, legislation that had failed in Texas and across the country many times. According to the Times, Mitchell told a Texas lawmaker: “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.”
Mitchell said there was no guarantee that the provision he had used for the anti-abortion “sanctuary cities” would work, but he said it would give the law “a fighting chance.”
The Times’s reporting is illuminating, but only because it confirms what those of us who have been paying close attention to the steady erosion of abortion access know so well: that the anti-abortion camp is crafty and dogged; that it is willing to deploy dubious tactics; that all of this is happening right before our eyes every day, if only we bothered to look. Many did not find it difficult to predict this exact scenario in Texas, though they hasten to add that Mitchell’s legal strategy would not be considered so shrewd if the courts were not already amenable to it.
“I’m not really interested in promoting S.B. 8,” Amy Hagstrom Miller, the president and CEO of Whole Woman’s Health, which has four Texas clinics, told Jezebel in an interview before the law went into effect. “There’s been a fetishization of this ‘new innovative’ legal strategy, but the strategy is really just ‘ban abortion by any means necessary.’ I’d rather talk about its impact.”