Texas Lawyer Behind Abortion Ban Says Copycat Fears Are Overblown
Texas Lawyer Behind Abortion Ban Says Copycat Fears Are Overblown
(Bloomberg) -- The lawyer who helped craft Texas’ ban on most abortions said the law’s controversial design -- intended to evade review by the courts -- won’t be used by lawmakers to circumvent U.S. Supreme Court decisions that are “better-reasoned” than Roe v. Wade.
The law, known as S.B. 8, can’t be challenged by the federal government because it’s enforced by private citizens rather than the state, Jonathan F. Mitchell said in a brief filed Thursday with the U.S. appeals court in New Orleans.
“No state has attempted to run this play before,” said Mitchell, the former solicitor general of Texas. He called the landmark Roe ruling the “most controversial decision that the Supreme Court has issued in the past 50 years.”
After the U.S. Justice Department sued Texas to overturn the law, Mitchell won permission to intervene in the case on behalf of people who may want to enforce it. He helped craft a provision of the law that allows members of the public to sue anyone in Texas who aids in an illegal abortion and seek bounties of at least $10,000 per procedure.
The law bans abortions in Texas after about six weeks of pregnancy -- before many women know they’re pregnant -- and has no exception for rape or incest. The U.S. argues that letting Texas dodge a suit over such a restrictive law would put every constitutional right at risk of being overturned.
Mitchell argues that states have always had the right to deputize private citizens to enforce state laws and were simply restrained by their respect for the high court’s previous decisions. He said Roe deserves no such deference.
“A state does not violate the Constitution by undermining a ‘right’ that is nowhere to be found in the document, and that exists only as a concoction of judges who want to impose their ideology on the nation,” Mitchell said.
‘Ahistorical Nonsense’
Texas Attorney General Ken Paxton also weighed in Thursday, saying in a separate brief that the U.S. claim that similar tactics could be used in other states to undermine other constitutional rights is “ahistorical nonsense.”
The appeals court last week temporarily put a lower court’s injunction against the ban on hold. It is now accepting legal arguments from both sides of the dispute as it considers whether to issue a longer-lasting stay on the injunction while the lawsuit proceeds in the lower court.
Mitchell’s co-counsel on the case is Gene Hamilton, a former Justice Department lawyer who’s now a top attorney at America First Legal, a conservative nonprofit group founded by former Donald Trump aide Stephen Miller and other officials from the Trump administration.
The case is U.S. v. Texas, 21-cv-00796, U.S. District Court, Western District of Texas (Austin).
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