Sunday, August 14, 2022 | Back issues
Courthouse News Service Courthouse News Service

The legal loophole that helped end abortion rights

More than a year before the end of Roe v. Wade, a Texas city found a roundabout way to ban abortions. Advocates for abortion rights say it was a warning sign.

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.

Before the Supreme Court's ruling in June, states beyond Texas were already trying out this same loophole. Oklahoma also used it to ban abortions. Missouri considered it.

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.

Women protest against Texas' six-week abortion ban at the state Capitol in Austin on Sept. 1, 2021. (Jay Janner/Austin American-Statesman via AP)

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."

ADVERTISEMENT

When Lubbock used his theories to end abortions within city limits, it was "the first time an abortion ban had survived court challenge since Roe v. Wade," he noted. "How could the Court continue to assert that abortion is a constitutionally protected right after Texas had found a way to ban abortion?"

Back in 2020, as versions of Waskom's model ordinance cropped up in towns across Texas, the ACLU tried to stop them.

They sued Waskom and several other cities, arguing the ordinances violated the First Amendment by ostensibly limiting the ability of abortion advocates to associate.

The ACLU dropped the case a couple months later, after Waskom and other cities agreed to clarify that people still had "the right to perform abortion-related advocacy work," the group said in a statement. Still, at the time, Mitchell's theory had not yet been fully tested in court.

Later that year, Planned Parenthood opened a clinic in Lubbock and announced it would start providing abortion services. The group had operated in the city until 2013, when a previous state law forced it to close.

Lubbock is a conservative city, and some residents were outraged Planned Parenthood was reopening. They urged city officials to ban abortions using the same aiding and abetting language that Waskom had used.

The Lubbock City Council declined to do so, after an outside firm hired by the city said the ordinance was unconstitutional and conflicted with state law. Undeterred, activists gathered signatures and got the measure on the ballot. Last year, it passed with 62% of the vote.

In the ensuing confusion, Planned Parenthood paused providing abortions in the city. It sued Lubbock later that month, seeking clarity from the courts on what exactly the law was.

The case was the first real test of Mitchell's theories. U.S. District Judge James Hendrix, a Trump appointee, quickly tossed it out.

Planned Parenthood wanted to prevent citizens from suing, but those citizens hadn’t sued yet and Lubbock had no control over them. The group's lawyers “admit that even if the court gave them everything they wanted, the court’s ruling would not bar private citizens from bringing suit,” Hendrix wrote.

Mitchell's theories had won in court — and Lubbock had found a way to stop abortions without exactly banning them. The strategy was adopted by Texas lawmakers, who used the same aiding and abetting language to end abortion statewide.

Both the U.S. and Texas supreme courts declined to hear challenges to that law, allowing it to remain in effect. Just like Judge Hendrix, both courts found that advocates couldn't sue Texas officials to stop the law because Texas officials weren't the ones enforcing it.

Critics have accused SB 8 of promoting vigilantism. Those arguments miss the point, supporters of the law say.

"We didn't want bounty hunters filing lawsuits under SB 8," Mitchell said in an email. "A bounty-hunter lawsuit would have provided an opportunity for a court to declare the statute unconstitutional."

"The entire point of SB 8," he added, "was to prevent the judiciary from ruling on the constitutionality of the statute.” In other words, the loophole isn't effective because it leads to lawsuits but because it creates the threat of them. "No one wanted to take the risk."

In his 2018 article, Mitchell compared his theories to qui tam, a legal concept that goes back hundreds of years and allows private citizens to act something like prosecutors.

Like the aiding and abetting loophole, qui tam allows citizens to sue for legal violations and receive a reward for doing so. It's been used in, for example, the False Claims Act, a 1863 federal law that rewards people for reporting fraud in federal government programs.

Mitchell's article outlines ways the loophole could be used by left-leaning lawmakers, too. The 2010 Supreme Court decision Citizens United v. FEC, he noted, allowed unlimited political spending by corporations without undoing a previous law against it.

"Today corporations and individuals violate this criminal prohibition with impunity, because they know the courts have their back," he wrote. "The politicians who oppose Citizens United can do more than simply call for its overruling: They can threaten to prosecute anyone who violates" the still-existing law.

To critics, threatening to arrest political opponents for non-crimes might sound like banana-republic stuff. In Mitchell's view, it's about reining in courts that have become too powerful.

"The Supreme Court is subject to checks and balances, just like the other institutions of our government," he said in an email. "There is nothing wrong with a state enacting a law to evade judicial review."

Still, for abortion providers and patients caught in this loophole, it's felt like a sneaky and underhanded way to undo abortion rights. After all, one goal of the loophole is to create fear and confusion about what exactly the law is.

As Texas has shown, this fear and confusion can be enough to change behavior.

"Doctors are humans too," Kate Peaslee, the volunteer chair of the Planned Parenthood Lubbock Community Board, said in an interview. "They're subject to confusion and self-preservation."

Early last year, as citizens in Lubbock debated the proposed anti-abortion ordinance, Peaslee helped with fundraising calls for Planned Parenthood. She needed to convince supporters outside Lubbock why the ordinance was worth fighting.

"Don't think this is a Lubbock or West Texas issue," she remembers saying. "This is a testing ground." Indeed, under Mitchell's loophole, more patients, providers and advocates could soon find themselves in the same position.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.

Loading
Loading...