• Law - Practice of law - Legal professions - Lawyers - Attorneys at law - Jonathan Mitchell
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• This is the main entry for "Jonathan F. Mitchell" (Jonathan Mitchell).
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• curation date: 2022-09-14
• Jonathan F. Mitchell (born 1976-09-02) is an American attorney and former government official.
From 2010 to 2015, he was the Solicitor General of Texas.
He has argued five cases before the Supreme Court of the United States and authored more than one hundred briefs.
Mitchell has helped to author anti-abortion bills.
In 2021, the U.S. Supreme Court issued an order declining to block a Texas anti-abortion bill, which effectively banned abortion in the state, from going into effect pending the resolution of constitutional challenges against the law.
Jonathan Mitchell He has served on the faculties of Stanford Law School, the University of Texas School of Law, the George Mason University School of Law, and the University of Chicago Law School.
In 2018, he opened a private solo legal practice in Austin, Texas.
Mitchell is credited with devising the novel enforcement mechanism in the Texas Heartbeat Act, also known as Senate Bill 8 (or SB 8), which outlaws abortion after cardiac activity is detected and avoids judicial review by prohibiting government officials from enforcing the statute and empowering private citizens to bring lawsuits against those who violate it.
On September 1, 2021, the Supreme Court of the United States refused to enjoin the enforcement of SB 8, marking the first time that a state had successfully imposed a pre-viability abortion ban since Roe v. Wade.
• https://en.wikipedia.org/wiki/Jonathan_F._Mitchell
• see also: Law - Practice of law - Legal professions - Lawyers - American lawyers - Jonathan Mitchell
• Nature - Earth - Countries - United States - Government - Law - United States federal judges - Reed O'Connor
• Politics - Political philosophy - Political theories - Political ideologies - Conservatism - Social conservatism - Anti-abortion movements - United States - Strategies - Heartbeat bills
• Society - Social issues - Discrimination - Conscientious objection - Healthcare - Conscience clause in medicine in the United States
• Society - Social issues - Discrimination - Conscientious objection - Healthcare - Conscientious objection to abortion
• Society - Social issues - Discrimination - Conscientious objection - Religious objection - Religious Freedom Restoration Act
• (2022-03-26, https://khn.org/news/article/lawsuit-targets-health-law-no-charge-coverage-of-preventive-exams-like-mammograms/) "'Incredibly Concerning' Lawsuit Threatens No-Charge Preventive Care for Millions." "With a challenge to the Affordable Care Act still pending at the Supreme Court, conservatives are continuing to launch legal attacks on the law, including a case in which a Texas federal judge seems open to ending the requirement that most Americans must receive preventive services like mammograms free of charge. ... The plaintiffs cite religious and free-market objections to the ACA requirement in their class action suit against the government seeking to halt enforcement of the requirement. ... The attorney representing the plaintiffs, Jonathan Mitchell of Austin (a former Texas solicitor general) declined to speak on the record about the case. ...
• (2022-09-14, https://www.npr.org/sections/health-shots/2022/09/14/1122789505/aca-preventive-health-screenings) "How a Texas court decision threatens Affordable Care Act protections." " ... a federal judge's 2022-09-07 ruling in a Texas lawsuit filed by conservative groups claiming that the ACA's mandate that health plans pay the full cost of preventive services is unconstitutional.
U.S. District Judge Reed O'Connor agreed with them.
He ruled that the members of one of the three groups that make coverage recommendations, the U.S. Preventive Services Task Force, were not lawfully appointed under the Constitution because they were not nominated by the president and confirmed by the Senate. ... In the same ruling last week, O'Connor held that requiring the plaintiffs to pay for HIV prevention drugs violates the Religious Freedom Restoration Act of 1993.
Reed O'Connor's also considering throwing out the mandate for first-dollar coverage for contraceptives, which the plaintiffs also challenged under that statute.
Reed O'Connor postponed ruling on that and legal remedies until after he receives additional briefs from the parties to the lawsuit on 2022-09-16. ... Experts fear that cost sharing for preventive services would hurt growing efforts to reduce health disparities. ... One service of particular concern is preexposure prophylaxis for HIV, or PrEP, a highly effective drug regimen that prevents high-risk people from acquiring HIV.
The plaintiffs in the lawsuit in Texas claimed that having to pay for PrEP forces them to subsidize 'homosexual behavior' to which they have religious objections.
..."
• (2022-09-22, https://rewirenewsgroup.com/2022/09/22/conservatives-dont-want-lgbtq-folks-to-have-safe-sex/) "Conservatives Don't Want LGBTQ Folks to Have Safe Sex.
Federal judge's ruling on PrEP coverage opens door for conservatives to crush LGBTQ health care." U.S. District Judge Reed O'Connor's twin obsessions - dismantling the Affordable Care Act and over-regulating the sexual behavior of people he doesn't like - came together in his latest decision this month (2022-09).
Reed O'Connor ruled that requiring insurers to cover pre-exposure prophylaxis, or PrEP, runs afoul of (conservative Christian) religious freedoms.
Never mind that PrEP is a life-saving medication that's effective at preventing and transmitting HIV.
Reed O'Connor is no stranger to issuing sweeping rulings that impose a narrow set of religious beliefs on the country.
Reed O'Connor gets the opportunity to do these things largely because Texas keeps bringing lawsuits to enforce its worldview - one that looks to eradicate LGBTQ people in the name of religious freedom.
In 2016-08 Reed O'Connor blocked the Obama administration from enforcing a rule that would have allowed transgender students to use the bathrooms and locker rooms that conform with their gender identity.
Around four months later, Reed O'Connor issued a nationwide injunction preventing the federal government from enforcing a requirement that health-care providers cannot discriminate against someone because they are trans.
Reed O'Connor held that such a regulation would violate the religious freedoms of conservative providers who either do not wish to treat trans people at all or wish to discriminate in that treatment.
For his most recent performance, Reed O'Connor teamed up with Jonathan Mitchell, best known as the architect of Texas SB 8, the six-week ban with a bounty hunter-style private enforcement mechanism allowing private citizens to sue anyone who aids or abets an abortion.
Under the Affordable Care Act, PrEP usage is considered "preventive" health care and therefore must be included in all insurance coverage.
When it comes to preventing HIV, PrEP is a superstar.
The Centers for Disease Control and Prevention estimate that PrEP can reduce the chance of getting HIV from sex by 99 percent and 74 percent from the use of intravenous drugs.
Jonathan Mitchell represented a group of conservative business owners who did not wish to provide any such coverage because it runs afoul of their religious beliefs.
In the lawsuit, the plaintiffs contended that PrEP "facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman." That idea is grounded in the long-debunked notion that only gay men get HIV.
In reality, cisgender women who have sex with men represent 19 percent of new HIV infections per year but remain much less aware of the medication than men who have sex with men.
But, as Reed O'Connor explains in his ruling, facts don't actually matter - that Braidwood and the other conservative business owners are not obliged to prove, or even remotely explore, that PrEP facilitates men having sex with men, people having extramarital sex, and IV drug use. ... But what really matters, Reed O'Connor writes, is that the plaintiffs sincerely believe these notions - not whether they are actually true.
Regrettably, in this instance, Reed O'Connor is only following existing Supreme Court precedent: When plaintiffs bring a claim under the Religious Freedom and Restoration Act, as plaintiffs did here, the government must uncritically "accept the sincerely held complicity-based objections of religious entities." There's no test to prove those religious beliefs are sincere, nor does it matter when scientific facts fly in the face of those beliefs, such as Hobby Lobby's incorrect belief that IUDs and Plan B cause abortions.
Indeed, the decision in favor of Jonathan Mitchell's conservative religious clients was almost inevitable in light of Burwell v. Hobby Lobby.
In the 2014 decision, the Supreme Court agreed with a conservative religious business that it could control their employees' health-care access, which opened the door for businesses to simply refuse covering anything they found morally objectionable.
Jonathan Mitchell's - and Reed O'Connor's - behavior isn't just that of conservative Christians seeking to impose their theistic worldview on everyone.
It's also a distinct refusal to acknowledge that the federal government - if that federal government happens to be controlled by Democrats - is allowed to issue regulations and pass laws.
Notably, Jonathan Mitchell's clients didn't just want to block insurance coverage for things they deemed morally questionable.
They also initially wanted the right to impose copays and deductibles for preventive care, which flies in the face of the ACA's core values and goals.
As long as Texas is controlled by people like Governor Greg Abbott and Attorney General Ken Paxton, the state will continue to bring these lawsuits.
As long as there are judges like Reed O'Connor, the state will continue to win.
And, as long as that continues to be the case, conservatives will inflict a narrow, cramped set of religious beliefs on the rest of us.
• (2023-03-30, https://www.motherjones.com/politics/2023/03/obamacare-preventative-care-reed-oconnor/) "A Federal Judge Just Struck Down Obamacare's Prevention Treatments.
Access to cancer screenings, HIV drugs, and prenatal services could become a lot more expensive." A federal district court judge in Texas has gutted a core healthcare protection that Americans have enjoyed for more than a decade: a government mandate guaranteeing cost-free preventative services.
Under the ruling, cancer screenings, pre-exposure prophylaxis (PrEP) for preventing HIV, and care for pregnant people may soon become a lot more expensive. ... Judge Reed O'Connor - a George W. Bush appointee - ruled Thursday (2023-03-30) that the preventative care mandate is unconstitutional.
Under the decision, the list of services that could become out of reach for many people is long, and, aside from the latest recommendations on life-saving cancer screenings, HIV prevention, and prenatal care, also includes physical therapy for the elderly, Type 2 diabetes screening, smoking cessation, childhood vision tests, among other medical interventions.
Reed O'Connor's opinion finds that the task force that decides which services and medications fall under the preventative care requirement violates the Constitution.
He also found that employers have a religious right to deny their employees coverage of PrEP if it violates their religious beliefs.
In this case, plaintiff and GOP megadonor Steven Hotze wants to deny his employees the drugs because he believes that protecting them from HIV encourages sexual interactions he doesn't like.
Several other plaintiffs are individuals who want to purchase insurance that does not cover contraception or PrEP drugs. ... Lawyer Jonathan Mitchell - the architect of Texas' bounty hunter-enforced abortion ban - brought this case.
Jonathan Mitchell also brought a case before Reed O'Connor in which the judge green lit LGBTQ discrimination by private businesses, using the same plaintiff - the company owned by Steven Hotze - in that case as in today (2023-03-30)'s Obamacare case.
Jonathan Mitchell also appears to have used a repeat plaintiff - Ashley Maxwell of Hood County, Texas - in the Obamacare case, after using her in a case that sought to enforce his abortion ban.
In both today (2023-03-30)'s case and his abortion ban case, Jonathan Mitchell teamed up with America First Legal Foundation - a group run by former Trump administration adviser Stephen Miller.
The nexus illustrates the tactics the modern conservative legal project is using to accomplish its longstanding goals of stripping rights from disadvantaged communities and forcing pregnant people to give birth.
By waging war on Obamacare, it is, at the same time, cruelly stripping away resources that help ensure pregnancies are healthy and affordable.
• (2023-05-08, https://www.npr.org/2023/05/08/1174552727/jonathan-mitchell-abortion-texas-sb8-roe-v-wade-dobbs) "He helped craft the 'bounty hunter' abortion law in Texas.
Jonathan Mitchell is just getting started." In person, Jonathan Mitchell is polite and even soft-spoken.
But Jonathan Mitchell is also relentless - even when he knows he's about to exasperate a federal judge.
"Are you a Texan?" U.S. Magistrate Judge Mark Lane asked from the bench, on a recent morning in late 2023-04, after Jonathan Mitchell's clients had failed to show up for a scheduled deposition.
"What part of courteous lawyering is this?" Jonathan Mitchell was inside a federal courtroom in Austin, Texas for a discovery hearing in a book-banning case from tiny Llano, Texas.
Jonathan Mitchell is defending local officials who've been sued over the removal of public library books after conservative activists deemed them offensive.
Local library patrons are challenging the removal on First Amendment grounds.
Judge Mark Lane asked why Jonathan Mitchell's clients hadn't shown up.
Jonathan Mitchell - who grew up in Pennsylvania, and whose law firm is based in Austin, Texas - said he believed the other side hadn't followed all the rules, and he was simply acting in his clients' best interest by advising them not to appear.
Mark Lane told Jonathan Mitchell the whole thing had been a waste of the court's time, before adjourning the hearing.
"I can understand his frustration," Jonathan Mitchell said in an interview later that day.
"But I also hope he understands where I'm coming from." Katherine Chiarello, a lawyer representing the library patrons in Llano in their lawsuit challenging the books' removal, described the judge's interaction with Jonathan Mitchell as "unprecedented." "I have never been yelled at by a judge like that," Katherine Chiarello said.
"So this was a very big deal that Jonathan Mitchell got such a dressing down." Jonathan Mitchell was unmoved.
"I've seen far worse," Jonathan Mitchell said.
"Maybe she (Katherine Chiarello) has been fortunate in terms of what judges have said and the types of hearings she's been involved in." AN EXPERT AT FINDING LEGAL LOOPHOLES.
On matters large and small, Jonathan Mitchell has become an expert at finding tiny openings in the law and leveraging them on behalf of his conservative clients and their causes.
A former Texas solicitor general, Jonathan Mitchell said his legal work now focuses on helping conservative lawmakers draft legislation "in a way that will make them not only effective, but also able to withstand a court challenge if one arises." Jonathan Mitchell also represents individuals and government entities involved in litigation like the library case.
Two days before the hearing in Austin, Texas Jonathan Mitchell had been the elephant not in the room during a public hearing in the small town of Edgewood, New Mexico.
Residents in Edgewood, New Mexico spent hours debating a local anti-abortion ordinance Jonathan Mitchell helped draft as part of a nationwide effort by a Texas-based group to pass local restrictions on abortion.
Before voting 4-to-1 to approve the proposal, Edgewood commissioners went behind closed doors to consult with Jonathan Mitchell over Zoom about the legal risks they might face for doing so.
The ordinance appears to directly contradict a New Mexico Supreme Court order and a new state law taking effect in 2023-06 - both of which prohibit local municipalities from restricting abortion access.
In drafting the ordinance, which allows private citizens to sue each other to enforce the rules, Jonathan Mitchell took a page from the playbook he used to help Texas lawmakers draft the now-famous near-total abortion ban, S.B. 8 (Society - Social concepts - Rights - Human rights - Civil rights and liberties - Reproductive rights - Abortion - Abortion in the United States - Texas Heartbeat Act of 2021).
That legislation - sometimes called the "bounty hunter law" - pioneered the idea of allowing private citizens to file lawsuits worth tens of thousands of dollars against anyone they suspect of being involved in abortion.
During the Edgewood, New Mexico commission meeting on 2023-04-25, Linda Burke was among many residents from Edgewood and beyond who lined up to speak.
"It's a little disconcerting to see our tiny little town become the center of this issue," Linda Burke said.
"It is a hot-button issue.
I just really hate to see it turn neighbor against neighbor." Asked about that concern, Jonathan Mitchell said, it "depends on your view of abortion ... If you are opposed to abortion, if you think it should be outlawed and criminalized, then the question becomes, how do you have an effective prohibition on abortion?" When Jonathan Mitchell is asked for his own view on abortion, he is difficult to pin down.
"Very little of this has been my own philosophy of abortion that I'm trying to impose.
All this has been done in the context of representing clients," Jonathan Mitchell insists.
But, Jonathan Mitchell acknowledged, "I wouldn't take cases if I thought that what I was doing was legally indefensible or grossly immoral." SHAKEN FAITH IN THE NATION'S HIGHEST COURT.
Jonathan Mitchell, 46, is also guarded about his personal life and religious background.
Jonathan Mitchell studied at Wheaton College - often described as the United States' flagship evangelical undergraduate institution - before graduating from the University of Chicago Law School in 2001.
Jonathan Mitchell is reserved about discussing his faith.
"It's very personal," Jonathan Mitchell said.
"I certainly am a churchgoer.
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." After law school, Jonathan Mitchell clerked for a federal judge and then U.S. Supreme Court Justice Antonin Scalia - an experience that Jonathan Mitchell said made him skeptical of the court as an institution.
"You sort of get to see how the sausage gets made when you're behind the scenes," Jonathan Mitchell said.
"The decision-making was more politicized and more results-oriented than I would have expected." As a lawyer working with conservative activists and lawmakers, Jonathan Mitchell has appeared laser-focused on getting results.
Jonathan Mitchell's former law professor, Richard Epstein, describes Jonathan Mitchell as one of the brightest legal minds ever to sit in his classrooms over Richard Epstein's more than five decades of teaching at the University of Chicago and New York University (NYU).
"He (Jonathan Mitchell) is kind of a technical magician," Richard Epstein said.
"You give him 10 cases and five statutes and all this stuff and Jonathan Mitchell can figure out the way to cut through this mess better than virtually anybody else you could meet." Jonathan Mitchell employed that technical acumen when he worked with Texas Republican State Senator Bryan Hughes, who sponsored S.B. 8 (Texas Heartbeat Act of 2021), to craft the bill.
During an interview inside Bryan Hughes' office at the Austin statehouse, Jonathan Mitchell said 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 (2022-06).
"We were thinking a lot over the years about tactics to try to make our laws just more immune from court challenge," Jonathan Mitchell said.
Jonathan Mitchell thought letting private citizens file civil lawsuits could be a way to get around Roe v. Wade.
And in 2021 - with three justices appointed by former President Donald Trump on the bench - the U.S. Supreme Court allowed Texaz S.B. 8 (Texas Heartbeat Act of 2021) to take effect - to the surprise of some legal observers.
"It sort of came out like a bolt from the blue," Jonathan Mitchell said.
"I don't think people realized 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." COMPLEX THEORIES WITH REAL-WORLD IMPACT.
But for many patients in Texas who wanted and could no longer get abortions, S.B. 8 (Texas Heartbeat Act of 2021) has forced difficult and sometimes dangerous choices.
Anna Zargarian is among a group of Texas women who were denied abortions for medical emergencies and are now suing the state.
Anna Zargarian spoke during a 2023-03 press conference announcing the lawsuit outside the statehouse in Austin, Texas.
"I begged my doctors to give me the care I needed.
They said they wanted to help but couldn't under Texas law," Anna Zargarian said.
"Where else in medicine do we do nothing and just wait and see how sick a patient becomes before acting?" In 2021-12 - just months after S.B. 8 (Texas Heartbeat Act of 2021) took effect - Anna Zargarian says she went into labor around 19 weeks, too early for the pregnancy to survive.
On the advice of her doctors, Anna Zargarian traveled to Colorado for an emergency abortion that doctors recommended, but said they could not provide under the law.
Asked about that case, Jonathan Mitchell expressed surprise that the law he helped draft would be interpreted to prohibit medically-necessary abortions.
"It concerns me, yeah, because the statute was never intended to restrict access to medically-necessary abortions," Jonathan Mitchell said.
"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 S.B. 8 (Texas Heartbeat Act of 2021)." Whatever Jonathan Mitchell may have intended, the impact of S.B. 8 (Texas Heartbeat Act of 2021) and other abortion laws in Texas has been to shut down virtually all abortions in the state.
Doctors say the laws are too vague and they fear lawsuits or prosecution.
FROM FRINGE TO THE MAINSTREAM.
Amy Hagstrom Miller - the CEO of Whole Woman's Health, which used to provide abortions in Texas - has followed Jonathan Mitchell's career closely, including his time as Texas solicitor general and his work with state lawmakers.
Amy Hagstrom Miller's organization Whole Woman's Health has sued the state of Texas "no less than 11 times in the 20 years that we were operational in Texas," Amy Hagstrom Miller said.
"So we have had quite a bit of back and forth over the years." Whole Woman's Health unsuccessfully challenged S.B. 8 (Texas Heartbeat Act of 2021) in court in 2021.
"My experience with Jonathan Mitchell is that he has a very driven strategy to ban abortion by any means necessary," Amy Hagstrom Miller said.
"Oftentimes he (Jonathan Mitchell) is described as being very radical, very extreme and kind of fringe.
Yet at the same point, Jonathan Mitchell has kind of become mainstream." More recently, Amy Hagstrom Miller noted, Jonathan Mitchell has been working to "dust off the Comstock Act" (Comstock laws: https://en.wikipedia.org/wiki/Comstock_laws) - a largely forgotten anti-obscenity law from 1873, that prohibits transporting abortion-related materials across state lines.
Jonathan Mitchell thinks the Comstock laws could be used to ban abortion nationwide.
Jonathan Mitchell has cited the Comstock Act (Comstock laws) in anti-abortion ordinances in New Mexico and Illinois, and Jonathan Mitchell hopes court challenges to those ordinances will provoke the U.S. Supreme Court to weigh in on whether the Comstock Act (Comstock laws) still applies to mailing abortion pills, or any other medical supplies related to abortion.
"Now that Roe v. Wade has been overruled, the Comstock Law can be enforced as written," Jonathan Mitchell said.
"The Biden administration is choosing not to enforce it, which is their prerogative, but a future Republican administration might." Attorneys for anti-abortion groups have made a similar argument based on the Comstock laws in an ongoing federal court case challenging access to the abortion pill mifepristone.
Jonathan 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.
Jonathan Mitchell acknowledged that the Comstock laws are "exceedingly broad" and would restrict abortion even more deeply than most abortion-rights opponents would like.
It includes no exceptions for medical emergencies, and punishments include prison time.
But Jonathan Mitchell said the U.S. Congress, not the courts, should amend the statute (the Comstock laws).
"If you don't like it, change it," Jonathan Mitchell said.
"And you can change it." WINNING IN COURT, BUT LOSING ELSEWHERE?
But Jonathan Mitchell's approach could carry political risks for his ideological allies, said Mary Ziegler - a law professor at the University of California, Davis who has written about Jonathan Mitchell's Comstock Act (Comstock laws) Comstock strategy.
"It's the chess match in the courts: 'What can I get the courts to sign off on?'" Mary Ziegler said.
"He (Jonathan Mitchell) is not concerned about whether voters hate it or it will backfire on the anti-abortion movement later." Polls indicate a majority of American voters generally support abortion rights, and that support has grown in the months since Roe v. Wade was overturned (in 2022-06).
But Jonathan Mitchell said his primary concern is winning for his clients.
"The politics are things I can't really control," Jonathan Mitchell said.
"I let them take care of themselves." And some of Jonathan Mitchell's ideological rivals are taking note of his strategies and inverting them - what Richard Epstein, his former law professor, describes as "reverse engineering." So far, abortion rights advocates in Delaware and New Mexico have passed abortion protections that include enforcement using private rights of action.
And in California, lawmakers passed a gun-control measure last year (2022) that relies on a similar mechanism modeled after S.B. 8 (Texas Heartbeat Act of 2021).
"If Jonathan Mitchell can do it in Texas, then California Governor Gavin Newsom can do it with something else, with climate change or something else, in the state of California," Richard Epstein said.
"So I'm not in favor of it - and I told Jonathan that." Jonathan 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.
Jonathan Mitchell has promised to defend Edgewood, New Mexico - and any municipality that adopts one of his ordinances - at no cost.
Jonathan Mitchell would not say who's paying him for that legal work, only that it wouldn't be the taxpayers.