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Texas abortion law architect now looking to overturn same-sex marriage ruling

He argued in an amicus brief to the Supreme Court that key LGBTQ+ rights decisions "have no basis in constitutional text or historical practice."

Texas abortion law architect now looking to overturn same-sex marriage ruling
Representative Cover Image Source: Getty Images/Javier Zayas Photography

Jonathan Mitchell, the former Texas solicitor general who is considered the architect of the state's radical 'heartbeat' law, has invited the U.S. Supreme Court to overturn key LGBTQ+ rights decisions. According to The Guardian, in an amicus brief to the Supreme Court ahead of its ruling on a Mississippi case limiting abortion to 15 weeks, Mitchell took aim at decisions that legalized same-sex relations and same-sex marriages in all 50 states. In the brief, Mitchell and co-counsel Adam Mortara called for the landmark Roe v Wade to be overturned while acknowledging that doing so could open the door for other "lawless" rights and protections to be reversed, including the right to have gay sex and the right to same-sex marriage.


Mitchell and Mortara argued that landmark LGBTQ victories — including Lawrence v. Texas, the 2003 decision that banned states from criminalizing private, consensual gay sex, and Obergefell v. Hodges, the 2015 decision that legalized marriage equality in all 50 states — "have no basis in constitutional text or historical practice" and that they "preserve the court-invented rights to homosexual behavior and same-sex marriage." They added that there isn't a "fundamental right to marry" in U.S. legal tradition and instead only a "right to marry an opposite-sex spouse" that must be protected.


"This is not to say that the Court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe and Casey in this case," Mitchell concluded. "But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe." The brief, which was filed on 29 July — about four weeks before Texas's abortion ban went into effect — on behalf of the rightwing organization Texas Right to Life, recently caught the attention of Melissa Murray, who teaches at New York University's School of Law.


"FYI: In the SCOTUS challenge to MS's 15-week abortion ban, Jonathan Mitchell, the architect of TX's SB 8, has filed an amicus brief on behalf of TX Right to Life," she tweeted. "The brief invites the Court to overrule Roe & Casey AND Lawrence & Obergefell, 2 major LGBTQ equality decisions. Lawrence v. Texas is the 2003 decision that decriminalized same-sex sex. Obergefell v. Hodges is the 2015 decision that legalized marriage equality across the country. So the focus here is on Roe & Casey... for now. The long-term plan is to overturn all of these decisions."




Mitchell also argued in the brief that women would still be able to terminate pregnancies if Roe was overturned by traveling to "wealthy pro-abortion" states like California and New York with the help of taxpayer subsidies. "Women can 'control their reproductive lives' without access to abortion; they can do so by refraining from sexual intercourse," he wrote in the brief. "One can imagine a scenario in which a woman has chosen to engage in unprotected (or insufficiently protected) sexual intercourse on the assumption that an abortion will be available to her later. But when this court announces the overruling of Roe, that individual can simply change their behavior in response to the court's decision if she no longer wants to take the risk of an unwanted pregnancy."


Mitchell was profiled in a recent article from The New York Times, which described him as a critical face in the newest phase of the anti-abortion movement. "Mr. Mitchell represents a new iteration of the anti-abortion campaign," it states. "Instead of focusing on stacking the courts with anti-abortion judges, trying to change public opinion or pass largely symbolic bills in state legislatures, Mr. Mitchell has spent the last seven years honing a largely below-the-radar strategy of writing laws deliberately devised to make it much more difficult for the judicial system — particularly the Supreme Court — to thwart them, according to interviews."

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