Architect of “Bounty-Hunter” Abortion Ban Wants List of Abortion Seekers
It’s a scare tactic, abortion funds say
By Maggie Q. Thompson,
7:05PM, Fri. Sep. 29, 2023
Jonathan Mitchell – who helped write Texas’ vigilante abortion ban SB 8 – now wants to get his hands on lists of people who have sought nonprofit support to get abortions, along with people who donated to those nonprofits.
In 2022, after A.G. Ken Paxton and Texas district attorneys threatened to prosecute abortion funds that help people travel out of state for abortions, Fund Texas Choice and other funds sued to stop them. They argued that Paxton and others were suppressing Texans’ constitutional rights to interstate travel and free speech.
Ahead of a trial, Mitchell seems to be hoping he can use the discovery process to get lists of people who have ever donated to or received support from a Texas abortion fund. Earlier this month, Mitchell served discovery requests on nine Texas abortion funds and Texas physician Dr. Ghazaleh Moayedi seeking that information. “The guy behind this wants data so he and his clients can sue people under S.B. 8,” said Lilith Fund, one of the targeted abortion funds, in an X post Wednesday.
But Texas abortion bans penalize people who assist in abortions, not those who receive them, so what would be the point in asking for client and patient information, specifically? “To discourage them from seeking support from us,” a spokesperson for Fund Texas Choice told the Chronicle. “If someone has to worry about their name getting involved in the legal system, they are way less likely to reach out. They can't punish abortion seekers directly, but they can scare them.”
Fund Texas Choice says it’s unlikely Mitchell will get the records he’s asking for. The First Amendment protects the information he’s seeking, as the plaintiffs argue in a protective order request filed Tuesday. But Mitchell, solicitor general of Texas from 2010-15, is no stranger to skirting constitutional rights. He’s dedicated the last few years to devising ways to sue people for exercising them. He helped design the vigilante framework for SB 8, which allowed any Texan to sue any other Texan they suspect of “aiding and abetting” an abortion, even though abortion was still protected by the Constitution when SB 8 went into effect.
The Supreme Court’s refusal to strike down that law opened up a whole can of unconstitutional worms – when SB 8 went before the Supreme Court, a gun rights group argued that the model could be used to suppress the right to bear arms, for example, but the court let SB 8 take effect anyway. Now Mitchell is pushing for a similar bounty-hunter law to chill the right to interstate travel. Counties and cities across Texas have adopted local laws to block travel on highways for the purpose of leaving the state for an abortion, and Jezebel reports that Mitchell and activist Mark Lee Dickson are pushing for a statewide version using the vigilante lawsuit strategy.
Mitchell doesn’t just help devise these devious laws – he represents people taking advantage of them to win $10,000 in court. He notoriously represents a man who is suing his ex-wife’s friends for allegedly helping her get an abortion. (His case will be strengthened by the close surveillance he was conducting on his ex, and a countersuit called that plaintiff a “serial emotional abuser.”) Now, it seems Mitchell is looking for some people to sue under the new travel bans, as his discovery requests include information about which counties abortion-seekers traveled through to leave the state. Those travel bans might not be enforceable for, you know, rights-related reasons, but, as Fund Texas Choice told us, “They want to scare people from driving on roads without knowing whether or not they could potentially be sued.”