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Whereas Jonathan Mitchell would in all probability favor to file most of his litigation from contained in the American uteri with which he's obsessed, the GOP’s high anti-abortion lawyer appears to be all over the place else nowadays, too. The architect of Texas’ “bounty hunter” abortion ban has recently been noticed making an attempt to ban library books, ensuring homophobic and transphobic employers don’t have to supply insurance coverage that covers HIV prevention medicine, and hovering over the shoulder of a Texas man suing his ex-wife’s buddies for allegedly serving to her buy treatment abortion.
Now he’s arrange store in New Mexican mailboxes, although his final goal is the Supreme Court docket. Mitchell’s newest lawsuit, filed Monday, makes an attempt to override the state’s abortion protections by utilizing a 150-year-old federal legislation to criminalize the distribution by mail of “obscene” supplies — together with supplies used to finish being pregnant. Whereas the 1873 Comstock Act hasn’t been struck down totally, components have been repealed, and the meat of the legislation has broadly been thought-about defunct for many years. Nonetheless, Mitchell’s go well with stems from one small city — Eunice, New Mexico — designating itself as a “sanctuary metropolis” the place abortion is outlawed not by an outright ban, however in deference to Comstock’s federal prohibition on the distribution of abortion materials.
Mitchell is establishing a face-off between federal and state statute, regardless of how out of date the federal legislation or how democratically sound the state legislation. And abortion protections in New Mexico have huge help. Latest rulings from the state's Supreme Court docket and payments handed defending reproductive and gender-affirming care have affirmed the state’s position as an important entry level for abortion within the Southwest. It’s exactly due to New Mexicans’ help for abortion rights that Mitchell has chosen the city of Eunice because the stage for his newest anti-abortion stunt.
The Comstock gambit itself isn’t new for Mitchell, who has labored with a Texas-based outfit behind quite a few anti-abortion “sanctuary metropolis” ordinances that started proliferating in earnest throughout the state in 2019. Whereas different municipalities in Illinois and New Mexico had handed “sanctuary metropolis” designations in years prior, Mitchell’s intervention was to introduce a novel enforcement mechanism mirroring the “bounty hunter” provision underpinning Texas’ statewide abortion ban, and to undergird “sanctuary metropolis” ordinances by citing the Comstock Act. That’s precisely what Mitchell is as much as with this newest go well with out of Eunice, and it’s no accident that the submitting comes on the heels of one other Comstock-rooted abortion case beating a hotfooted path to the U.S. Supreme Court docket.
That case, intentionally introduced earlier than a Donald Trump-appointed anti-abortion decide, seeks to strike down FDA approval of the abortion treatment mifepristone, paving the way in which for federally designated fetal personhood. In early April, Choose Matthew Kacsmaryk did what he was educated to do by the right-wing Federalist Society, citing Comstock in a (now quickly stayed) ruling that partially rolled again FDA-approved protocols for mifepristone.
After that ruling, Mitchell put his different authorized shenanigans on ice to echo Kacsmaryk’s Comstock reasoning by submitting go well with on behalf of Eunice. Whereas Mitchell’s identify isn’t on the Texas mifepristone case, his strategic fingerprints are throughout it. Nothing was stopping Mitchell from submitting go well with in New Mexico earlier than Kacsmaryk’s ruling. Certainly, nothing was stopping Mitchell or any member of his cohort from pursuing Comstock-based “sanctuary metropolis” circumstances in Texas, the place the state’s anti-abortion management and abortion-hostile courts would virtually assure a win. However Mitchell and his allies usually are not gunning for wins. They’re gunning for losses, as a result of dropping means getting Comstock’s abortion prohibitions in entrance of the GOP’s bought-and-paid-for anti-abortion Supreme Court docket majority — the final word objective of America’s right-wing lawyering confederacy.
I exploit the time period confederacy intentionally. Mitchell is engineering a form of civil conflict through the courtroom system that flips historic left-versus-right roles on “states’ rights” within the service of implementing a nationwide abortion ban. Legislating a ban to the identical impact could be wildly unpopular, if not not possible. However Republicans are already mobilizing to dam state-level poll initiatives defending abortion rights; reactivating Comstock is each an insurance coverage coverage towards these efforts’ failures and one other pricey, time-consuming impediment for abortion supporters to surmount if state protections for abortion prevail.
Conveniently, this comes at a time when Republican donors and politicians are attempting to distance themselves from hard-line abortion stances. Mitchell’s technique permits the GOP to depend on courts to shore up their mission of compelled being pregnant, and it could very nicely work. Even the strict authorized solvency of Mitchell’s finagling is virtually irrelevant with a judiciary stacked with anti-abortion ideologues. If he doesn't achieve New Mexico, be assured he’ll discover one other venue wherein to problem the democratic rule of legislation. If there’s anyplace Jonathan Mitchell desires to be, it’s wherever he can do essentially the most hurt.