How Justice Alito’s leaked abortion draft reads a lot like a prominent Texas lawyer’s take

Jonathan Mitchell filed an amicus brief on behalf of Texas Right to Life. Alito’s leaked opinion echoes much of Mitchell’s reasoning.

By Shelly BrisbinMay 17, 2022 2:26 pm, , ,

Following the leak of a draft opinion written by Supreme Court Justice Samuel Alito that would overturn Roe v. Wade, some observers believed they spotted a Texas connection. Arguments Alito makes in the draft resemble those offered in an amicus brief written by Jonathan Mitchell, architect of last year’s Senate Bill 8, Texas’ so-called “heartbeat” abortion bill.

Mitchell, a former state solicitor general, wrote the brief on behalf of Texas Right to Live. Mimi Swartz wrote for Texas Monthly about the arguments both men make for overturning Roe and returning abortion access decisions to the states. Listen to the interview above or read the transcript below.

This transcript has been edited lightly for clarity:

Texas Standard: Tell us about Jonathan Mitchell and his role in opposing abortion in Texas.

Mimi Swartz: Well, it is very interesting. Jonathan Mitchell was a former solicitor general under Greg Abbott, and he is an evangelical Christian. And he’s also extremely smart, has a really impressive resumé, went to the University of Chicago Law School and is a former clerk for Supreme Court Justice Antonin Scalia.

And what struck me about Mitchell all along is that I think our view of anti-abortion protesters has been these sort of fringe people. And, in fact, there’s a lot of legal might behind what’s been going on over the years. He has represented Texas Right to Life, for instance. And I think none of us really understand the kind of long game these people have been playing. And they’ve been very successful.

You make the connection between Justice Alito’s leaked Supreme Court draft and a brief Mitchell filed and Dobbs v. Jackson Women’s Health, the case the Alito draft addresses. Is the justice taking material directly from Mitchell’s work, or do they simply share a particular legal philosophy?

I think it’s a little of both. I think that they do share a legal philosophy, and I think they echo one another. But the similarities were just so striking to me in the sense that you’ve got to look at how far the court has moved to the right. In the old days, a Texas Right to Life amicus brief would not have been taken as seriously I think as we see today, where the language is the same and the attitudes are the same. And what interests me, and what struck me so profoundly was their attitude about women, and that women could unite and go up against this powerful Supreme Court decision by influencing the legislative process.

And then Alito says women are not without electoral or political power. And Mitchell goes even further to say that women can “control their reproductive lives without access to abortion. They can do so by refraining from sexual intercourse.”

And also this idea that that women use abortion as a fallback of birth control. As you know, these are really old ideas that have not been proven out. And to see them sort of hitting the mainstream is concerning.

One of the most significant assertions in the Alito draft is that stare decisis – relying on precedent when the court decides cases – does not apply to abortion decisions. Can you explain that reasoning?

They basically say there’s no mention of abortion in the Constitution. And so there’s no precedent, which is sort of nutty. What I was told by many legal sources is that’s a very slippery slope. They’re going down there because our legal system is supported by precedent. And to suddenly start saying this precedent doesn’t matter means, are we looking at gay marriage? Are we looking at marriage between a Black and a white person?

Here’s what Alito says: “Stare decisis, the doctrine on which [Planned Parenthood v.] Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority.” And he actually contradicted himself when, during his confirmation hearing in 2006, 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.” I think he’s sort of saying they can pick and choose what serves as a useful precedent and what doesn’t, which kind of threatens the entire legal system our country is based on.

Mitchell and Alito also write about something called reliance interests, saying that courts aren’t under an obligation to preserve abortion access in the way they have when it comes to other rights that have existed for many years. Can you talk about the role of reliance interests in abortion cases up to this point?

Reliance interests means essentially that overturning long-established precedents is something like a breach of contract. You’ve had generations of people who think of abortion as part of life here. I do not think that very many women actually rely on abortion as a form of birth control. But I think it’s been with us as a last resort. And they are saying we don’t need a reliance interest because there are all these other options for women. And then Alito also goes on to say that there’s an absence of concrete reliance in this case. So, again, I think there’s a problem with real-world connections here. How these two men see the world, I think, is very, very, very limited compared to the way that most women have to live their lives, and especially poor women.

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