LUBBOCK, Texas (CN) — A few years back, Jonathan Mitchell thought he'd discovered a loophole in the way courts review laws. A former solicitor general of Texas, he outlined his theory in a 2018 article for the Virginia Law Review.
Courts can stop officials from enforcing a law, but they can't "strike down" a law with "veto-like power," he wrote. The law remains on the books — even if officials can't enforce it.
Mitchell theorized that non-officials could enforce such laws. "Private enforcement through civil lawsuits" could be a "powerful" alternative to typical law enforcement, he wrote.
Even if a law clearly violated federal law or the U.S. Constitution, it would be "practically impossible to bring a pre-enforcement challenge" to laws enforced by citizens, he argued. That's because "the litigants who will enforce the statute are hard to identify until they actually bring suit."
More than just legal philosophy, this theory is at the foundation of a coordinated, years-long and very effective effort to undermine abortion access.
It has had a profound impact on abortion rights in the United States — and yet unlike the Supreme Court's reversal of Roe v. Wade, very few Americans have heard of Mitchell or his ideas.
Months before the fall of Roe, Texas was using these theories to prevent abortions all across the state. Years before that, cities in Texas were helping test them out at the local level.
Going forward, the loophole provides a possible pathway for local governments to ban abortions even in states that offer strong protections for women's reproductive rights. John Seago, president of Texas Right to Life, said he'd like to see New Mexico cities try it.
The strategy started in earnest in Lubbock, a West Texas city that in early 2021 became the first place to successfully use Mitchell's theories to stop abortion.
Lubbock was "proof of concept," Seago said in an interview.
Samantha Fields, a former organizer for Planned Parenthood in Lubbock, agrees — even though she has very different views on the issue.
Lubbock was a "guinea pig," she said in an interview. "I absolutely see it as a warning sign."
The roots of this strategy stretch back years before Lubbock, to the small town of Waskom on the other side of the Lone Star State.
It all started with a rumor. Around 2019, some residents became worried that a reproductive clinic might move across the Louisiana border into Waksom. Anti-abortion activists in the region were determined to stop it. They reached out to Bryan Hughes, an anti-abortion state senator. He connected them with Mitchell.
Because Roe was still law of the land, Waskom couldn't outright ban abortions. However, Mitchell wrote in his 2018 article, sometimes "the prospect of enforcement" is all that is needed to "induce compliance."
In 2019, with Mitchell's help, Waskom passed an unusual anti-abortion ordinance. Rather than banning abortion outright, the measure allowed citizens to sue anyone accused of "aiding or abetting" one.
This language has turned up repeatedly in ant-abortion laws since then, including the one in Lubbock. It took a starring role in Senate Bill 8, the state law that effectively banned the procedure in Texas.
Every time these laws are challenged, the outcome goes exactly as Mitchell predicted. Because officials aren't enforcing the law, courts find that abortion advocates can't sue officials to challenge them.
Mitchell declined to be interviewed by phone for this story but did agree to answer questions via email. In a written statement, he described the loophole he helped create as a "crack in the edifice of the Roe regime."