Following last week’s leak of Supreme Court justice Samuel Alito’s draft majority opinion overturning Roe v. Wade and Planned Parenthood v. Casey, one frequently cited source has received a lot of attention—and not the good kind. Many critics have pointed out that Sir Matthew Hale, a famous seventeenth-century jurist whom Alito calls “eminent” and “great,” was one of the most influential misogynists in legal history—a man who, among other things, considered marital rape an oxymoron and sentenced “witches” to death.
But an arguably more important, and less remarked upon, source of inspiration for many of Alito’s key arguments is very much alive: Jonathan F. Mitchell, a 45-year-old Austin-based attorney who was the legal brain behind Texas’s Senate Bill 8. That so-called Heartbeat Act, passed by the Legislature last year, allowed private citizens to sue anyone involved with helping women obtain abortions after embryonic cardiac activity can be detected, which usually happens at about six weeks of gestation. In effect, it banned most abortions in Texas, nearly a year before the Supreme Court’s anticipated overturning of Roe and Casey. As such, it was a kind of capstone to Mitchell’s many innovative attempts through the years to take away Texas women’s right to safe, legal abortions.
The fact that Alito frequently echoes an amicus brief Mitchell coauthored in the current case at hand, Dobbs v. Jackson Women’s Health Organization, is notable. Mitchell, as I wrote last year, has long been a little-known but powerful force behind right-wing politics in Texas and beyond.
While pro–abortion rights supporters have often stereotyped their opponents as yahoos parading outside abortion clinics and brandishing posters depicting fetuses, Mitchell is nothing of the sort. Baby-faced and blessed with a righteous confidence, he is a devout Catholic and University of Chicago Law School graduate (with honors) and a former clerk for the late Justice Antonin Scalia. As Texas’s solicitor general under then–attorney general Greg Abbott from 2010 to 2015, Mitchell was instrumental in making it difficult for low-income women to receive health-care services. In Planned Parenthood v. Abbott, he wrote the appellate brief that sought to impose severe restrictions on physicians and clinics—and which, despite the Texas law ultimately being struck down by the U.S. Supreme Court in 2016, led to the closures of more than half of the state’s abortion clinics while the case was being litigated. Mitchell also successfully defended the 2011 state law requiring ultrasounds—in some cases transvaginal—for women seeking abortions. Last year, he was victorious as the attorney for the statewide anti-abortion group Texas Right to Life in its effort to ban abortion clinics in Lubbock, making it a “sanctuary city for the unborn.”
A careful side by side reading of Alito’s leaked draft and Mitchell’s brief, filed on behalf of Texas Right to Life and coauthored with his colleague Adam K. Mortara, reveals many close similarities. For starters, Alito and Mitchell make no effort to hide their contempt for the precedents the Supreme Court is likely to overturn in the coming weeks; while Alito calls Roe a “scheme,” Mitchell calls Casey “a fabrication atop a fabrication.”
Crucially, they also make similar assertions that stare decisis, the upholding of precedents, does not apply when it comes to abortion rights. Where Mitchell writes that “stare decisis must never be used to elevate the concoctions of previous courts over the Constitution itself,” Alito puts it this way: “Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of Judicial authority.” (This was not a sentiment Alito held during his confirmation hearings back in 2006, when he declared that stare decisis was important because it “limits the power of the judiciary” and “reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.”)
One of Alito’s central arguments is that Roe and Casey should be overturned because “the Constitution makes no mention of abortion.” Here again, this chimes with the words of Mitchell, who writes that “there is no language in the Constitution that even remotely suggests such a right.” Alito and Mitchell are equally pugnacious when they take on what are known as “reliance interests” in the legal world. Reliance suggests that overturning long-established precedents amounts to something like a breach of contract—in this case, the fact that the populace has had decades to adjust to the availability of legal abortion and has come to depend on it when other methods of birth control fail. For instance, the majority in Casey concluded that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
But Alito declares flatly that there’s an “absence of concrete reliance” in this case, while Mitchell asserts that “there are no reliance interests that warrant the retention of Roe and Casey, and there is no argument that has been advanced that shows otherwise.” He goes on to claim that the relationship between women’s reproductive rights and economic and social betterment as stated in Casey is “one of the most specious and ill-considered passages in the history of constitutional law.”
Like Alito, Mitchell emphasizes that a Supreme Court reversal wouldn’t ban abortion nationwide, but would simply return decisions about its availability to the states. “It is time to heed the Constitution,” Alito writes, “and return the issue of abortion to the people’s elected representatives.” Mitchell concurs, taking a knife to reliance interests in the process: “To be sure, there will . . . be states that outlaw or severely restrict the procedure,” he argues, “but women who reside in those states can travel to pro-abortion states to get their abortions.” Plenty of “abortion funds,” he says, will willingly chip in. Abortion will still be available, just “more inconvenient.”
Both men wave away inevitable arguments about the loss of women’s autonomy inherent in overturning Roe. “Our decision . . . allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office,” Alito writes. “Women are not without electoral or political power.” Mitchell agrees, but takes it a step further: “Women can ‘control their reproductive lives’ without access to abortion; they can do so by refraining from sexual intercourse.” The notion that women—and men, he generously adds—“should have the right to freely engage to [sic] sexual intercourse while having abortion as a fallback method of birth control” amounts to “an ideological assertion that the cause of sexual liberation should take priority over the lives of unborn human beings.”
Both Mitchell and Alito display a coy, “own the libs” class consciousness when they discuss the inevitable public fallout from overturning Roe. Mitchell asserts that the Supreme Court’s institutional credibility comes “from its adherence to the constitution and the laws,” and “not from whether its decisions find approval from newspaper editorialists or the managerial class.” Alito concurs, writing in high-minded style: “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.” He adds on behalf of the majority: “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
Since the draft opinion leaked, one prominent part of the “public’s reaction” has been a legitimate worry that this decision could open a Pandora’s box—that other rights could be taken away on similar grounds. As law professors Melissa Murray and Leah Litman write in The Washington Post, Alito takes “an aggressively maximalist position, not only giving states extraordinary leeway to prohibit abortion but also implicitly inviting a flurry of challenges to other precedents, including cases protecting contraception and LGBTQ civil rights.”
Alito claims that overturning Roe would have no such trickle-down effect—for instance, laying the groundwork for dispensing with Lawrence v. Texas, which ended so-called “sodomy laws,” or Obergefell v. Hodges, which gave same-sex couples the right to marry. The majority’s likely decision “should not be understood to cast doubt on precedents that do not concern abortion,” Alito writes. But his argument (and Mitchell’s) that Roe can be overturned because there is no mention of abortion in the Constitution also holds true not only for same-sex marriage, but also for interracial marriage and the right to use contraception.
Here again, free of the need to sound judicious, Mitchell appears to speak the quiet parts out loud. While he acknowledges that interracial marriage—another right that could be threatened—is absent from the Constitution, he asserts that the Supreme Court’s 1967 Loving v. Virginia decision, which established this particular right, “is defensible without any need to resort to court-invented substantive-due-process rights.” However, he continues, “The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage. . . . These ‘rights,’ like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence.”
Mitchell goes on, in a passage worth quoting in full: “This is not to say that the Court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe and Casey in this case. But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe.”
Alito’s draft opinion, despite his denials, does leave other rights “hanging by a thread.” And in Texas, where right-wing legislators frequently take guidance and find inspiration from Mitchell, those opposed to further limitations on their private lives and constitutional rights will clearly have their work cut out for them.
“I do fear this is not the end, it’s the beginning,” said Cecile Richards, the former president of the Planned Parenthood Federation of America and now the lead national fundraiser for Democratic gubernatorial candidate Beto O’Rourke, when I spoke with her last week. “We collectively have to do a better job of demonstrating the human cost of what’s happening. The vast majority of people never thought this day was coming.”
Except, perhaps, for Jonathan Mitchell.
