(Bloomberg) -- The lawyer who helped craft Texas’ ban on most abortions said the law’s controversial design -- 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, was crafted to complicate efforts by the federal government to challenge it in court, Jonathan F. Mitchell said in a brief filed Thursday with the U.S. appeals court in New Orleans.
Mitchell represents a group of anti-abortion-rights activists in the U.S. Justice Department’s lawsuit against Texas to block the law. Texas and Mitchell both argue that the state can’t be sued because it doesn’t enforce the ban. Instead, the law empowers members of the public in any state to file lawsuits against anyone in Texas who performs or aids in an abortion and to seek bounties of at least $10,000 per illegal procedure.
The U.S. has argued that allowing such a tactic to succeed would put every constitutional right at risk of being overturned by a state legislature.
“No state has attempted to run this play before,” Mitchell, the former solicitor general of Texas, said in his filing. The tactic is justified, he argued, because the Supreme Court’s landmark ruling in Roe v. Wade, which guarantees access to abortions, “has no textual support in the Constitution.”
Roe “is the most controversial decision that the Supreme Court has issued in the past 50 years,” he said.
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Texas Attorney General Ken Paxton also weighed in on Thursday, saying in a separate brief that the Justice Department’s argument that similar tactics could be used in other states to undermine other constitutional rights is “ahistorical nonsense.”
The law bans abortion when fetal cardiac activity is detected -- around six weeks, before many women know they’re pregnant.
No Deference for Roe
Mitchell claims 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.
The appeals court last week temporarily put a lower court’s temporary 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.
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Mitchell represents a trio of private citizens who intervened in the U.S. challenge to the law, urging the court to protect their right to pursue abortion providers and enablers under S.B. 8. He also represents some of the most prominent foes of abortion rights in Texas in other challenges related to the ban.
His 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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