Jonathan Mitchell, the legal mind behind the Texas abortion ban
SARAH MCCAMMON, HOST:
They are some of the most divisive issues today.
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UNIDENTIFIED REPORTER #1: Senate Bill 8, The Texas Heartbeat Act - abortions will be banned once a fetal heartbeat is detected.
UNIDENTIFIED REPORTER #2: The Llano County Library System removed 12 children's books due to their racial and LGBTQ content.
UNIDENTIFIED REPORTER #3: In a first of its kind lawsuit in Texas, the lawsuit is being brought by a man who alleges that three women helped his ex-wife get access to medication abortion.
MCCAMMON: Abortion access, book banning and people suing other people to enforce the rules - and there's one man who's been quietly choreographing the legal strategy behind fights being waged around the country.
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UNIDENTIFIED PERSON #1: Jonathan Mitchell.
UNIDENTIFIED PERSON #2: Mr. Mitchell.
UNIDENTIFIED PERSON #3: Jonathan Mitchell.
MCCAMMON: Jonathan Mitchell is a lawyer and former Texas solicitor general who now runs his own law firm based in Austin.
JONATHAN MITCHELL: Advising legislators on how to draft their statutes in a way that will make them not only effective, but also able to withstand a court challenge if one arises and then also litigation with representing private individuals or sometimes governmental entities that are facing lawsuits or bringing lawsuits.
MCCAMMON: Mitchell is the architect of SB 8, the Texas law that banned abortions after about six weeks of pregnancy and enabled private citizens to sue people they suspected of being involved in abortions. Some people call it the bounty hunter law. His former law professor, Richard Epstein, says Mitchell is among the brightest legal minds to ever sit in his classrooms.
RICHARD EPSTEIN: He's a kind of a technical magician.
AMY HAGSTROM MILLER: My experience with him is that he has very driven strategy to ban abortion by any means necessary.
MCCAMMON: And that's Amy Hagstrom Miller, who used to run abortion clinics in Texas before SB 8 and other laws shut them down.
HAGSTROM MILLER: And oftentimes, his legal strategies are seen by the people that I talk to as very extreme.
MCCAMMON: So I went to Texas to meet Jonathan Mitchell. In person, Mitchell is polite, mild-mannered, even soft-spoken. But he is relentless, even when he knows he's about to exasperate a federal judge. On the day I interviewed Mitchell, he'd just been taken to task by a judge because his clients had not shown up for a deposition in the Llano County Library case. Mitchell told the judge his clients didn't show up because he believed the other side hadn't followed all the rules.
MITCHELL: I can understand his frustration, but I also hope he understands where I'm coming from.
MCCAMMON: Are you a Texan? - the judge asked Mitchell. What part of courteous lawyering is this?
KATHERINE CHIARELLO: This is unprecedented.
MCCAMMON: Katherine Chiarello is a lawyer representing Llano Library patrons who sued county officials on First Amendment grounds. She spoke to me afterward.
CHIARELLO: I've never heard a judge yell at my opposing counsel like that. This was a very big deal that Mr. Mitchell got such a dressing down.
MITCHELL: Maybe she's been fortunate in terms of what judges have said and the types of hearings she's been involved, but I've seen far worse than that.
MCCAMMON: Mitchell has become an expert at finding tiny openings in the law and leveraging them on behalf of his clients and their causes. Just two days before I met him at that hearing in Austin, he'd been the elephant not in the room during a public hearing I attended in the small town of Edgewood, N.M., where residents spent hours debating a local anti-abortion ordinance that he had helped to draft.
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UNIDENTIFIED PERSON #4: Is Mr. Mitchell here tonight? I understood he was going to be here.
UNIDENTIFIED PERSON #5: He'll be on Zoom.
MCCAMMON: Before voting 4 to 1 to approve the proposal. Edgewood commissioners went behind closed doors to consult with Mitchell about the legal risks they might face for doing so. That's because the ordinance appears to directly contradict a New Mexico Supreme Court order and a new state law, both of which prohibit local municipalities from restricting abortion access.
LINDA BURKE: I'm Linda Burke. I'm a resident of Edgewood. We have a very friendly little town. It's a hot-button issue. I just really hate to see it turned neighbor against neighbor.
MCCAMMON: With the ordinance, Mitchell took a page from the playbook he'd used to help Texas lawmakers draft the now famous anti-abortion law, SB 8, that allows civil lawsuits. Later that week, when I met up with Mitchell in Austin, I asked him about Burke's point that it's harmful for people to be suing each other over something like abortion.
MITCHELL: It really depends on your view of abortion proper. If you are opposed to abortion and think it should be outlawed and criminalized, then the question becomes, how do you have an effective prohibition on abortion?
MCCAMMON: When you ask Mitchell for his view on abortion, he quickly changes the subject to the law itself.
MITCHELL: Very little of this has been my own philosophy of abortion that I'm trying to impose. All of this has been done in the context of representing clients.
MCCAMMON: I mean, you wouldn't take cases like this if you didn't care about them, I presume.
MITCHELL: I wouldn't take cases if I thought that what I was doing was legally indefensible or grossly immoral.
MCCAMMON: Mitchell, who's 46, is also guarded about his personal life and religious background. He studied at Wheaton, often described as the nation's flagship evangelical college, before graduating from the University of Chicago Law School in 2001. I asked him if he calls himself an evangelical Christian today.
MITCHELL: I mean, really, it depends what you mean by that. It's - yeah, it's very personal and, you know, it's - certainly I am a churchgoer and 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.
MCCAMMON: After law school, Mitchell clerked for a federal judge and then Supreme Court Justice Antonin Scalia, an experience he said made him skeptical of the court as an institution.
MITCHELL: I didn't have as much faith in the Supreme Court after the clerkship as I did before the clerkship.
MCCAMMON: What did you see? What shook your faith?
MITCHELL: The decision making was more politicized and more results-oriented than I would have expected.
MCCAMMON: 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 a brilliant student - one of the best in his more than five decades of teaching at both the University of Chicago and NYU.
EPSTEIN: He's a kind of a technical magician. You give him 10 cases and five statutes and all this stuff, and he can figure out a way to cut through this mess better than virtually anybody else you can meet.
MCCAMMON: SB 8 was arguably one of the best examples of Mitchell's creative use of the law. Republican State Senator Bryan Hughes sponsored the bill. Sitting inside Hughes' office at the Austin statehouse, Mitchell told me 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.
MITCHELL: And we were thinking a lot over the years about tactics to try to make our laws just more immune from court challenge.
MCCAMMON: 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 SB 8 to take effect.
MITCHELL: It sort of came out like a bolt from the blue. I don't think people realize 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.
MCCAMMON: But for people in Texas who wanted and could no longer get abortions, SB 8 has felt devastating. Anna Zargarian is among a group of Texas women who were denied abortions for medical emergencies and are suing the state. Here's Zargarian speaking outside the Austin statehouse earlier this year.
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ANNA ZARGARIAN: I begged my doctors to give me the care I needed. They said they wanted to help but couldn't under Texas law. Where else in medicine do we do nothing and just wait and see how sick a patient becomes before acting?
MCCAMMON: I first met Zargarian last year when she told me her story about going into labor at 19 weeks and deciding to travel to Colorado for an emergency abortion her doctors recommended but said they could not provide. Sitting across from Mitchell now, inside that same statehouse, I asked him what he might say to women like Anna.
MITCHELL: I do have a hard time understanding why SB 8 would have stopped medically necessary abortions because the statute specifically allows them at any point in the pregnancy, and it specifically exempts those abortions from any type of liability, civil or criminal.
MCCAMMON: Does it concern you that this happens?
MITCHELL: It concerns me, yeah, because the statute was never intended to restrict access to medically necessary abortions, and the statute specifically says that it's not restricting access to medically necessary abortions. So that shouldn't be happening. 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 SB 8.
MCCAMMON: Whatever Mitchell may have intended, the impact of SB 8 and other laws has been to shut down virtually all abortions in Texas. Doctors say the laws are too vague and they fear lawsuits or prosecution. Amy Hagstrom Miller is the CEO of Whole Woman's Health, which unsuccessfully challenged SB 8 in court.
HAGSTROM MILLER: My experience with him is that he, you know, has a very driven strategy to ban abortion by any means necessary. Like, you see the sort of bounty hunter part of SB 8, and here now you see him trying to dust off the Comstock Act from the 1800s.
MCCAMMON: She's talking about a widely ignored anti-obscenity law that prohibits transporting abortion-related materials across state lines. Mitchell thinks it could be used to ban abortion nationwide. He cited Comstock in the anti-abortion ordinances in New Mexico, and he's hoping court challenges to those ordinances will provoke the U.S. Supreme Court to weigh in and agree with him.
MITCHELL: Now that Roe's been overruled, the Comstock Law can be enforced as written. The Biden administration is choosing not to enforce it, which, again, is their prerogative. But a future Republican administration might.
MCCAMMON: 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. And 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. But Mary Ziegler, a law professor at the University of California, Davis who has written about Mitchell's Comstock strategy, warns there may be political risks for Republicans who embrace his approach.
MARY ZIEGLER: Like it's the chess match in the courts, right? What can I get the courts to sign off on? And he's not concerned about whether voters hate it or it will backfire on the movement later. I think he's trying to win in court. And if that means, you know, the federal courts are setting the terms of the debate in ways that hurt the Republican Party or maybe even hurt the movement in the short term, I don't think that really concerns him.
MCCAMMON: 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 the community at no cost. He wouldn't say who's paying him for all of his legal work. He just said it wouldn't be the town. Transcript provided by NPR, Copyright NPR.