Lawyers

Meet the Authorized Strategist Behind the Texas Abortion Ban

If your picture of an anti-abortion warrior resembles Mark Lee Dickson, the bearded East Texas pastor who favors a backward baseball cap and carries around a plastic toy fetus, maybe, after recent events—that is, after abortion became essentially illegal in Texas—it’s time to think again. Yes, Dickson worked hard to achieve that goal, as did freshman lawmaker Shelby Slawson of Stephenville, who carried the bill in the House, and lawmaker Bryan Hughes of Mineola, who sponsored the legislation in the Senate. As did House Speaker Dade Phelan, who promised the Texas Young Republicans at a March banquet that Texas would be the first state in the Union to outlaw abortion. As did Lieutenant Governor Dan Patrick, who has long styled himself as both a protector of women and an enemy of abortion. “Once the lieutenant governor and the Speaker decide they want to pass a bill, it passes,” said a none-too-happy Drucilla Tigner, a strategist for the ACLU of Texas, who was fighting for reproductive rights long before the Supreme Court allowed the abortion ban, otherwise known as Senate Bill 8, to stand last week. Finally, there is Governor Greg Abbott, who signed the bill into law, making it one of the crowning achievements of a legislative session that, depending on which side you’re on, was either a cause for jubilation or a cause for alarm.

But one name has been missing from the list of those who gave life to the so-called Heartbeat Act, the one that bans abortions after six weeks of pregnancy, the moment when those who oppose abortion claim a fetus’s heartbeat can be heard. The man who crafted the unusual legal strategy that was upheld by the U.S. Supreme Court, at least for now, is one Jonathan Franklin Mitchell.

The aspect of the Texas law that has garnered the most attention is the way it gets around Roe v. Wade, which since 1973 has allowed women safe and legal abortions, up until the fetus could survive outside the womb—generally defined as 24 to 28 weeks after conception. Instead of allowing the government to decide who may or may not have an abortion, Texas’s new law essentially allows private citizens to sue anyone who performs the procedure after six weeks into a pregnancy, or anyone who helps a person get an abortion. As has frequently been reported, even Uber drivers could be prosecuted under the new law. A plaintiff who succeeds in ratting out a neighbor who tries to get an abortion can receive an award of $10,000, plus legal fees. What looks like some clever new vigilante evite is actually a shrewd way of getting around Roe, which by some interpretations limits only government enforcement of anti-abortion regulations, not enforcement by private citizens. The Supreme Court allowed the Texas law to stand while pro- and anti-choice groups duke out its legality, with the court citing “complex and novel antecedent procedural questions.”

Who would have the know-how to devise such an imaginative plan, you may wonder? A deeper reading of the new law suggests legal expertise beyond the capabilities of most right-to-lifers, even those from East Texas. In fact, longtime abortion rights advocates see Mitchell at work, even if very few Texans, and even few Texas lawyers, know who he is.

Unless you’re an inside player in conservative Texas politics, Mitchell’s name is not likely to ring a bell. He is a youthful 45 and still speaks in the accent of his native Pennsylvania and with the unshakable confidence endemic to notable legal scholars.  He was solicitor general of Texas from 2010 to 2015, following the likes of Ted Cruz, who had the job from 2003 to 2008. The solicitor general is the top appellate lawyer for the state which means he—and it’s pretty much always been a he—often can be found working before the Texas Supreme Court, the U.S. Fifth Circuit Court of Appeals, and the U.S. Supreme Court. When Abbott famously rose every morning to sue the Obama administration, his right-hand man was Mitchell.

Other highlights from his impressive résumé include study at the University of Chicago Law School, where he served as articles editor of the Law Review. He also worked from 2002 to 2003 as a law clerk to U.S. Supreme Court Justice Antonin Scalia, whose anti-abortion views were well-known. (Texans may recall that Scalia died in his sleep in 2016 at Cibolo Creek Ranch after a quail hunt.) Mitchell has argued four cases before the U.S. Supreme Court. He was a member of Donald Trump’s transition team from 2016 to 2017 and has served as a visiting professor at notable law schools, including the ones at the University of Chicago, George Mason University, Stanford University, and the University of Texas. He currently maintains his own practice, as well as a home in Austin; he also has a residence in Everett, Washington. Mitchell has been a member of the conservative Federalist Society and a visiting fellow at the equally conservative Hoover Institution, where, as the Washington Post reported, he worked on “making legislation more immune to court challenges.”

But despite his white-shoe résumé, Mitchell has been a ferocious fighter in the far-right trenches for some time. “Trump Nominee Is Mastermind of Anti-Union Legal Campaign” was a New York Times headline in 2018, when Mitchell, as lead counsel, was at the forefront of union busting against government workers in Washington state. He has a reputation for wonkiness—for finding those little cracks in the law that can turn into craters.

He hasn’t always been successful in that endeavor. In one of his more minor cases, Mitchell wrote a brief in support of the plaintiffs regarding the Sons of Confederate Veterans v. Vandergriff, a case about whether the Confederate battle flag can be put on specialty license plates. This case went all the way to the U.S. Supreme Court before the Sons were sent packing. Mitchell, with Texas Values attorney Jonathan Saenz, argued against the same-sex benefits provided to married gays by the City of Houston in a case known as Pidgeon v. Turner. They lost when the state trial court ruled in the city’s favor—after the case went all the way to the U.S. Supreme Court and back again.

Mitchell has been far more successful as a near-invisible standard bearer for Texas’s abortion fight. He has served as a contract attorney for the Texas Alliance for Life Trust Fund and for Texas Values, whose vision “is to stand for biblical, Judeo-Christian values by ensuring Texas is a state in which religious liberty flourishes, families prosper, and every human life is valued.” It promotes, among other things, “abstinence education, wherein marriage between one man and one woman is promoted as the expected context for sexual activity.” In a January 2012 blog post, Texas Values praised Mitchell for his work on the law that requires those infamous vaginal sonograms for women seeking abortions. “By the way, big thanks goes to Attorney General Greg Abbott and Texas Solicitor General Jonathan Mitchell for doing an excellent job defending the Texas Sonogram law!!”

As solicitor general, Mitchell and other state lawyers made it much harder for low-income Texas women to receive health-care services from Planned Parenthood. In 2012, they argued that Planned Parenthood’s mission was in opposition to Texas’s goal of reducing the number of abortions and therefore its state funding through the Women’s Health Program should be cut. (That  program  didn’t pay  for abortions; it only provided health care to the underserved.)

In Planned Parenthood v. Abbott, then–solicitor general Mitchell wrote the appellate brief that required physicians who performed abortions to have hospital admitting privileges, and that required drug-induced abortions to be performed in accordance with the FDA’s protocols. Even though Mitchell’s push was ultimately unsuccessful—the U.S. Supreme Court overruled the Fifth Circuit’s favorable ruling in 2016—more than half of Texas abortion clinics closed during the time the case was being litigated, and few have reopened.

More recently, Mitchell was involved on the legal side of Mark Lee Dickson’s “sanctuary cities for the unborn” movement that fights to stop abortion clinics in smaller Texas towns and cities. Mitchell worked closely with Dickson in Lubbock, for instance, addressing the city council and volunteering to defend the city government against any litigation should it decide to ban clinics. The city council didn’t pass a proposed sanctuary city ordinance, but anti-abortion supporters called for a referendum and won. The case is currently on appeal, more complicated now by what promises to be a bitter legal fight over SB 8.

Of course, it remains to be seen how this will resolve. Of great concern to pro-choice advocates is the shift against victims of rape and incest, who are now included in the ban. Mitchell’s version of SB 8 shows no such concern: “The plaintiffs cannot possibly show how an injunction of this sort will prevent the ‘irreparable injuries’ of which they complain,” he wrote in a response to the emergency injunction filed with the U.S. Supreme Court by several pro-choice groups. 

For a person who has left few fingerprints—he did not respond to calls or emails requesting an interview for this story—Mitchell may now find himself unable to avoid the spotlight. “The state of Texas has always been incredibly aggressive in the litigation we’ve [brought] against them,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said. “Jon was part of that then and is part of that now.”

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