Origin story of Texas law that could upset Roe v. Wade


The road to a Texas law that bans most abortions in the state, for the time being bypassing the landmark 1973 Supreme Court decision in Roe v. Wade, started in a town called Waskom, with a population of 1,600.

The Supreme Court’s decision last week not to interfere with the state’s strict abortion law sparked outrage from liberals and cheers from many conservatives. President Joe Biden attacked him. But the ruling also amazed many that Texas could essentially defeat the Supreme Court’s precedent over women’s constitutional abortion rights.

Texas abortion law SB 8 follows a model first used in Waskom to ban abortion within its limits in 2019. The new legal approach used by the city on the Texas border with Louisiana is the one envisioned by a former prominent state attorney.

Right to Life East Texas director Mark Lee Dixon, 36, a Southern Baptist pastor, has defended the abortion ban in Waskom. Through his State Senator, Bryan Hughes, he met Jonathan F. Mitchell, a former prominent Texas State lawyer. Mitchell became his lawyer and advised him on the drafting of the order, Dixon said in an interview.

The order protects Waskom from prosecution by saying that city officials cannot enforce the abortion ban. Instead, private citizens can sue anyone who performs an abortion in the city or helps someone get one. The law was largely symbolic, however, as the city did not have a clinic performing abortions.

Almost three dozen other cities across the state have followed Waskom’s lead. Among them is Lubbock, where a Planned Parenthood clinic stopped performing abortions this year as a result.

Mitchell declined interviews, but Dixon called him a “brilliant guy” and said he was “extremely grateful” for his help. Hughes, who later became the author of the Texas law, echoed these sentiments. The two have known each other for years.

While Hughes would not give credit for Texas’ one-person approach, claiming that many attorneys and law professors have advised the legislation, ultimately SB 8 followed the Waskom model in terms of enforcing the law. law.

The law, signed by Republican Gov. Greg Abbott in May, bans abortions once medical professionals can detect heart activity, typically around six weeks and before many women know they are pregnant. At least 12 other states have enacted early pregnancy bans, but all have been prevented from coming into force.

Unlike the laws of other states, however, Texas law is unique in that it prohibits state officials from enforcing the ban. Instead, he created a so-called private right of action allowing anyone – even outside of Texas – to sue abortion providers and anyone else who assists someone with an abortion. Under the law, anyone who successfully sues another person would be entitled to at least $ 10,000.

The loophole in private right of action envisioned by Mitchell has so far prevented challenges to the law from succeeding.

Mitchell, 45, has spent the past 15 years moving back and forth between working in government and teaching at law schools such as Stanford and the University of Texas at Austin. A graduate of Wheaton College and the University of Chicago Law School, he served as law clerk to the late Conservative Supreme Court Justice Antonin Scalia.

And he was then Solicitor General of Texas from 2010 to 2015. He was a volunteer lawyer on former President Donald Trump’s transition team and was unsuccessfully appointed by Trump to head an agency tasked with improving the functioning of the government. government.

University of Chicago law professor William Baude called him a “born,” creative and knowledgeable law professor.

A law review article Mitchell wrote and published in 2018 gave advice to lawmakers worried the courts were blocking their laws. He said lawmakers could protect their legislation by including a private right of action. He said the strategy could apply to a wide range of laws such as campaign finance, gun control and abortion.

“It is practically impossible to challenge before application the laws which establish private rights of action, because the litigants who will apply the law are difficult to identify as long as they have not actually brought an action”, he said. – he writes in a footnote.

In the case of Texas law, things turned out as he predicted.

Yet even some conservatives have questioned Texas’ approach. Disagreeing with the High Court’s decision not to intervene last week, Chief Justice John Roberts called the Texas law “not only unusual, but unprecedented.”

“The legislature imposed a ban on abortions after about six weeks, then essentially delegated enforcement of that ban to the general population,” he wrote. “The desired consequence appears to be to remove the state from responsibility for the implementation and enforcement of the regulatory regime. “

Liberal judge Sonia Sotomayor was direct. “It cannot be true that a state can escape federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizens,” she wrote.

However, the High Court’s action is unlikely to be the last word on the law. Further legal challenges now that the law is in force are likely.

GOP lawmakers and abortion opponents in at least five other Republican-controlled states – Arkansas, Florida, Indiana, North Dakota and South Dakota – have said they plan to pass similar bills to Texas law and its provision to citizens enforcing it.


Gresko reported from Washington and Weber from Austin, Texas.

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