Jonathan Mitchell was a visiting professor at Stanford Law School and former fellow at the Hoover Institution when he theorized the legal mechanism which laid the groundwork for the controversial Texas abortion ban that went into effect last week. If states wanted to circumvent judicial review, Mitchell wrote in a 2018 law review article, they could delegate the power of enforcement to private citizens.
That is exactly what S.B. 8 does.
The law, which the Supreme Court refused to block last week, bans abortions once cardiac activity is detectable — at about six weeks of pregnancy, before many women are even aware they are pregnant. It makes no exceptions for rape or incest, and it gives enforcement power to private citizens across the country to sue abortion providers and anyone who “aids or abets” an illegal abortion in Texas for at least $10,000. The woman who receives the illegal abortion cannot be sued, and state officials are prohibited from enforcing the law. As Mitchell suggested, the law’s exclusion of public officials from enforcement makes it especially difficult to challenge in court — precisely because the question of whom to challenge remains open.
“It is practically impossible to bring a pre-enforcement challenge to statutes that establish private rights of action, because the litigants who will enforce the statute are hard to identify until they actually bring suit,” Mitchell wrote.
Using abortion restrictions as an example, Mitchell theorized that even if a federal district or circuit court were to block public officials from enforcing a certain statute, the court could not prevent private citizens from enforcing it. Only when the Supreme Court declared the statute unconstitutional could private citizens be blocked from enforcement, he wrote.
Mitchell, who has served as the Solicitor General of Texas and clerked for the late Supreme Court Justice Antonin Scalia, was a Hoover fellow from 2015 to 2016 and a visiting professor at SLS from 2015 to 2018. He also volunteered as an attorney for the Trump transition team and was unsuccessfully nominated by Trump to lead the Administrative Conference of the United States. Mitchell spoke at an SLS event as recently as October 2020.
“Federal courts can only hear suits that involve a ‘case or controversy’ between people (or parties) with a stake in them,” law professor Henry Greely, who specializes in health law and policy, wrote in an email to The Daily. “A federal court cannot just declare a statute unconstitutional but that has to be in connection with some particular defendant.”
Normally, Greely said, an individual can sue the government official responsible for enforcing a law and, if successful, get an injunction against them enforcing it. But in the case of Mitchell’s legal strategy, no such government official exists.
“A court can’t enjoin the whole world from trying to enforce this statute,” Greely wrote.
State Senator Bryan Hughes, a lead sponsor of S.B. 8, directly credited Mitchell’s legal strategies with helping shape the ban. But it wasn’t the first time Mitchell influenced a restrictive abortion law in Texas.
In 2019, Mitchell advised Mark Lee Dickson, the director of the anti-abortion group Right to Life East Texas, on developing an ordinance in the small town of Waskom, TX, that utilized the same legal framework as S.B. 8. Private citizens were granted enforcement power and the right to sue abortion providers and aiders or abettors — and as in S.B. 8, public officials were barred from enforcing the ban. Since then, Mitchell has provided legal support for Dickson’s “sanctuary cities for the unborn movement,” which seeks to prevent the operation of abortion clinics in small Texas cities.
In his role as Solicitor General of Texas, Mitchell also defended the constitutionality of restrictive abortion laws. He represented the state in Planned Parenthood v. Abbott and Whole Women’s Health v. Cole, both cases in which Texas abortion providers challenged a law that required doctors who perform abortions to have hospital-admitting privileges.
The Supreme Court refused to enjoin the enforcement of the Texas ban in a 5-4 decision last week, with the majority writing that they were not ruling on the constitutionality of the law, but rather wrestling with its “complex and novel” procedural questions.
Rachel Johnson-Farias, who serves as the Executive Director of the Center on Reproductive Rights and Justice at UC Berkeley School of Law, wrote in a statement to The Daily that she was “disappointed that the Supreme Court failed to act to protect the fundamental right to abortion.” She described the Texas law as “dangerous because it infringes on that fundamental right but effectively allows private citizens to act as bounty hunters with low-income birthing people as the bounty.”
“I say low-income birthing people because wealthy birthing people will usually be able to travel to seek an abortion,” Johnson-Farias wrote.
The passage of the law has already had major implications for abortion providers and patients in Texas. Abortion clinics across the state have closed down or stopped scheduling appointments for abortions after six weeks of pregnancy, citing fears of facing lawsuits from private citizens. And since the law went into effect on Sept. 1, abortion rights activists, politicians and abortion providers across the country have been denouncing S.B. 8 and Mitchell’s legal framework.
On Thursday, Attorney General Merrick Garland announced that the U.S. Department of Justice (DOJ) is suing Texas over the law, which he called “clearly unconstitutional under long-standing Supreme Court precedent.” The landmark Supreme Court case Roe v. Wade (1973) established a woman’s right to choose, and Planned Parenthood v. Casey (1992) reaffirmed that ruling.
Though the Supreme Court initially declined to rule on the constitutionality of S.B. 8, the DOJ lawsuit could force the court to consider this factor and, if the justices choose to follow precedent, ultimately block the law. But the future of that precedent is itself in limbo — the court is set to hear a case this fall regarding the constitutionality of a Mississippi law that could overturn Roe.
Garland described the legal framework devised by Mitchell as a “statutory scheme” intended to “prevent women from exercising their constitutional rights by thwarting judicial review.”
According to Greely, Mitchell’s legal framework could have far-reaching implications.
“It is clever but if it stands, states can avoid any advance review of any of their statutes,” he wrote.
But Johnson-Farias said that in the wake of the DOJ lawsuit, she is “cautiously optimistic that S.B. 8 will be struck down as it is clearly unconstitutional.”
“Because the current conservative Court majority has made its disdain for abortion clear, I hope that the DOJ is working in tandem with Congress to ensure that we grow beyond Roe and enshrine the untethered right to abortion and bodily autonomy as federal law,” she said.