Jonathan Mitchell devised a Texas abortion ban that relies on civil lawsuits : NPR
In person, Jonathan Mitchell is polite and even soft-spoken. But he’s also relentless — even when he knows he’s about to exasperate a federal judge.
“Are you a Texan?” U.S. Magistrate Judge Mark Lane asked from the bench, on a recent morning in late April, after Mitchell’s clients had failed to show up for a scheduled deposition. “What part of courteous lawyering is this?”
Mitchell was inside a federal courtroom in Austin for a discovery hearing in a book-banning case from tiny Llano, Texas. He is defending local officials who’ve been sued over the removal of public library books after conservative activists deemed them offensive. Local library patrons are challenging the removal on First Amendment grounds.
Judge Lane asked why Mitchell’s clients hadn’t shown up. Mitchell, who grew up in Pennsylvania and whose law firm is based in Austin, said he believed the other side hadn’t followed all the rules, and he was simply acting in his clients’ best interest by advising them not to appear.
Lane told Mitchell the whole thing had been a waste of the court’s time, before adjourning the hearing.
“I can understand his frustration,” Mitchell said in an interview later that day. “But I also hope he understands where I’m coming from.”
Katherine Chiarello, a lawyer representing the library patrons in Llano in their lawsuit challenging the books’ removal, described the judge’s interaction with Mitchell as “unprecedented.”
“I have never been yelled at by a judge like that,” Chiarello said. “So this was a very big deal that Mr. Mitchell got such a dressing down.”
Mitchell was unmoved.
“I’ve seen far worse,” he said. “Maybe she’s been fortunate in terms of what judges have said and the types of hearings she’s been involved in.”
An expert at finding legal loopholes
On matters large and small, Mitchell has become an expert at finding tiny openings in the law and leveraging them on behalf of his conservative clients and their causes.
A former Texas solicitor general, Mitchell said his legal work now focuses on helping conservative lawmakers draft legislation “in a way that will make them not only effective, but also able to withstand a court challenge if one arises.” He also represents individuals and government entities involved in litigation like the library case.
Two days before the hearing in Austin, Mitchell had been the elephant not in the room during a public hearing in the small town of Edgewood, New Mexico. Residents spent hours debating a local anti-abortion ordinance he helped draft as part of a nationwide effort by a Texas-based group to pass local restrictions on abortion.
Before voting 4-to-1 to approve the proposal, Edgewood commissioners went behind closed doors to consult with Mitchell over Zoom about the legal risks they might face for doing so. The ordinance appears to directly contradict a New Mexico Supreme Court order and a new state law taking effect in June, both of which prohibit local municipalities from restricting abortion access.
In drafting the ordinance, which allows private citizens to sue each other to enforce the rules, Mitchell took a page from the playbook he used to help Texas lawmakers draft the now-famous near-total abortion ban, S.B. 8. That legislation — sometimes called the “bounty hunter law” — pioneered the idea of allowing private citizens to file lawsuits worth tens of thousands of dollars against anyone they suspect of being involved in abortion.
During the town commission meeting on April 25, Linda Burke was among many residents from Edgewood and beyond who lined up to speak.
“It’s a little disconcerting to see our tiny little town become the center of this issue,” Burke said. “It is a hot-button issue. I just really hate to see it turn neighbor against neighbor.”
Asked about that concern, Mitchell said, it “depends on your view of abortion … If you are opposed to abortion, if you think it should be outlawed and criminalized, then the question becomes, how do you have an effective prohibition on abortion?”
When Mitchell is asked for his own view on abortion, he is difficult to pin down.
“Very little of this has been my own philosophy of abortion that I’m trying to impose. All this has been done in the context of representing clients,” he insists.
But, he acknowledged, “I wouldn’t take cases if I thought that what I was doing was legally indefensible or grossly immoral.”
Shaken faith in the nation’s highest court
Mitchell, 46, is also guarded about his personal life and religious background. He studied at Wheaton College, often described as the nation’s flagship evangelical undergraduate institution, before graduating from the University of Chicago Law School in 2001.
He is reserved about discussing his faith.
“It’s very personal,” Mitchell said. “I certainly am a churchgoer. It doesn’t necessarily have to be a particular branch or an evangelical denomination, but we make those decisions and we do what’s best for our family.”
After law school, Mitchell clerked for a federal judge and then Supreme Court Justice Antonin Scalia, an experience that he said made him skeptical of the court as an institution.
“You sort of get to see how the sausage gets made when you’re behind the scenes,” Mitchell said. “The decision-making was more politicized and more results-oriented than I would have expected.”
As a lawyer working with conservative activists and lawmakers, Mitchell has appeared laser-focused on getting results.
His former law professor, Richard Epstein, describes Mitchell as one of the brightest legal minds ever to sit in his classrooms over Epstein’s more than five decades of teaching at the University of Chicago and NYU.
“He’s kind of a technical magician,” Epstein said. “You give him 10 cases and five statutes and all this stuff and he can figure out the way to cut through this mess better than virtually anybody else you could meet.”
Mitchell employed that technical acumen when he worked with Republican State Sen. Bryan Hughes, who sponsored S.B. 8, to craft the bill. During an interview inside Hughes’s office at the Austin statehouse, Mitchell said the two men had known each other for years, and had seen state legislatures around the country pass abortion bans only to have them struck down under Roe v. Wade.
“We were thinking a lot over the years about tactics to try to make our laws just more immune from court challenge,” Mitchell said.
Mitchell thought letting private citizens file civil lawsuits could be a way to get around Roe. And in 2021, with three justices appointed by former President Donald Trump on the bench, the Supreme Court allowed S.B. 8 to take effect – to the surprise of some legal observers.
“It sort of came out like a bolt from the blue,” Mitchell said. “I don’t think people realized there were ways in which you could draft a statute that circumvents that entire process. It took a little bit of outside the box thinking.”
Complex theories with real-world impact
But for many patients in Texas who wanted and could no longer get abortions, S.B. 8 has forced difficult and sometimes dangerous choices.
Anna Zargarian is among a group of Texas women who were denied abortions for medical emergencies and are now suing the state. She spoke during a March press conference announcing the lawsuit outside the statehouse in Austin.
“I begged my doctors to give me the care I needed. They said they wanted to help but couldn’t under Texas law,” she said. “Where else in medicine do we do nothing and just wait and see how sick a patient becomes before acting?”
In December 2021, just months after S.B. 8 took effect, Zargarian says she went into labor around 19 weeks, too early for the pregnancy to survive. On the advice of her doctors, she traveled to Colorado for an emergency abortion that doctors recommended but said they could not provide under the law.
Asked about that case, Mitchell expressed surprise that the law he helped draft would be interpreted to prohibit medically-necessary abortions.
“It concerns me, yeah, because the statute was never intended to restrict access to medically-necessary abortions,” he said. “The statute was written to draw a clear distinction between abortions that are medically necessary and abortions that are purely elective. Only the purely elective abortions are unlawful under S.B. 8.”
Whatever Mitchell may have intended, the impact of S.B. 8 and other abortion laws in Texas has been to shut down virtually all abortions in the state. Doctors say the laws are too vague and they fear lawsuits or prosecution.
From fringe to the mainstream
As the CEO of Whole Woman’s Health, which used to provide abortions in Texas, Amy Hagstrom Miller has followed Mitchell’s career closely, including his time as Texas solicitor general and his work with state lawmakers.
Her organization has sued the state “no less than 11 times in the 20 years that we were operational in Texas,” she said. “So we have had quite a bit of back and forth over the years.”
Whole Woman’s Health unsuccessfully challenged S.B. 8 in court in 2021.
“My experience with [Mitchell] is that he has a very driven strategy to ban abortion by any means necessary,” she said. “Oftentimes he’s described as being very radical, very extreme and kind of fringe. Yet at the same point, he has kind of [become] mainstream.”
More recently, Miller noted, Mitchell has been working to “dust off the Comstock Act,” a largely forgotten anti-obscenity law from 1873 that prohibits transporting abortion-related materials across state lines.
Mitchell thinks it could be used to ban abortion nationwide. He’s cited Comstock in anti-abortion ordinances in New Mexico and Illinois, and he hopes court challenges to those ordinances will provoke the U.S. Supreme Court to weigh in on whether the law still applies to mailing abortion pills, or any other medical supplies related to abortion.
“Now that Roe‘s been overruled, the Comstock Law can be enforced as written,” Mitchell said. “The Biden administration is choosing not to enforce it, which is their prerogative, but a future Republican administration might.”
Attorneys for anti-abortion groups have made a similar argument based on Comstock in an ongoing federal court case challenging access to the abortion pill mifepristone. Mitchell also cites it in a lawsuit filed on behalf of a Texas man who’s accusing three women of helping his ex-wife obtain abortion pills to terminate her pregnancy.
Mitchell acknowledged that Comstock is “exceedingly broad” and would restrict abortion even more deeply than most abortion-rights opponents would like. It includes no exceptions for medical emergencies, and punishments include prison time. But Mitchell said Congress, not the courts, should amend the statute.
“If you don’t like it, change it,” he said. “And you can change it.”
Winning in court, but losing elsewhere?
But Mitchell’s approach could carry political risks for his ideological allies, said Mary Ziegler, a law professor at the University of California, Davis who has written about Mitchell’s Comstock strategy.
“It’s the chess match in the courts: ‘What can I get the courts to sign off on?'” Ziegler said. “He’s not concerned about whether voters hate it or it will backfire on the [anti-abortion] movement later.”
Polls indicate a majority of American voters generally support abortion rights, and that support has grown in the months since Roe was overturned.
But Mitchell said his primary concern is winning for his clients.
“The politics are things I can’t really control,” he said. “I let them take care of themselves.”
And some of his ideological rivals are taking note of his strategies and inverting them — what Epstein, his former law professor, describes as “reverse engineering.”
So far, abortion rights advocates in Delaware and New Mexico have passed abortion protections that include enforcement using private rights of action. And in California, lawmakers passed a gun-control measure last year that relies on a similar mechanism modeled after S.B. 8.
“If he can do it in Texas, Gov. [Gavin] Newsom can do it with something else, with climate change or something else, in the state of California,” Epstein said. “So I’m not in favor of it — and I told Jonathan that.”
Mitchell’s ideas could have other consequences.
Under New Mexico’s new law, the town of Edgewood could face expensive lawsuits for passing its anti-abortion ordinance. Mitchell has promised to defend Edgewood — and any municipality that adopts one of his ordinances — at no cost.
He would not say who’s paying him for that legal work, only that it wouldn’t be the taxpayers.
Tyler Bartlam produced this report. It was edited by William Troop and Catherine Laidlaw.