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After Texas abortion law, its key lawyer ponders re-criminalization of gay sex

Lawyer Jonathan Mitchell of Texas
Jonathan Mitchell, speaking in 2016 on the legacy of Antonin Scalia (Photo: C-Span)

A key lawyer involved with designing the legal challenge behind Texas’ controversial new abortion legislation has also got his sights set on reversing LGBTQ rights.

Jonathan Mitchell, the former Texas solicitor general, is described by The Guardian as the “architect” of the Texas law, which limits abortion to the first six weeks of pregnancy (before many people even realize they are pregnant).

It also allows anyone “aiding or abetting” a pregnant person in obtaining an abortion past six weeks to be sued.

It’s now emerged that Mitchell wrote an amicus brief to the US Supreme Court ahead of its ruling on another piece of abortion legislation.

SCOTUS is due to soon consider a Mississippi case (Dobbs v. Jackson Women’s Health) limiting abortion to 15 weeks. If it does, some believe it could lead to an overturning of Roe vs. Wade, the ruling which legalized abortion across the US.

Related: Tucker Carlson defends Texas abortion ban by attacking trans people in new low

It’s common for lawyers to write amicus briefs to the court ahead of such decisions, weighing in with their opinions. Much of Mitchell’s amicus brief, dated July 29, concerns abortion, and argues, among other things, that banning abortion still allows women to practice abstinence to avoid pregnancy.

However, the brief, also signed by Mitchell’s co-counsel Adam Mortara, also touches upon other “lawless” pieces of legislation.

It goes on to question the Lawrence v. Texas ruling, which legalized gay sex nationwide, and the Obergefell v. Hodges ruling, which did the same for same-sex marriage.

It says reversing Roe would not threaten interracial marriage, but “the news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage … These ‘rights,’ like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence.”

It further states, “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. 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.”

Related: Texas court throws out judge’s lawsuit after she refuses to wed same-sex couples

Should we be taking this seriously? The Guardian says what makes this letter significant is that justices on the Supreme Court recently backed, with a 5-4 decision, the Texas abortion law which was designed by Mitchell. This suggests its conservative members are sympathetic to his arguments.

Mitchell was a former clerk for Supreme Court Justice Antonin Scalia and has conducted work for the right-wing, conservative Alliance Defending Freedom and the Texas-based Right To Life. He served as solicitor general to Texas between 2010-2015 and now runs his own law firm.

Professor Melissa Murray, of the New York University School of Law, was among those to highlight Mitchell’s amicus brief and its arguments.

Some responders on Twitter said they couldn’t imagine SCOTUS ruling to overturn Obergefell or the Lawrence rulings, but Murray did not share their certainty.