The stunning argument was presented by attorney Jonathan Mitchell in a friend-of-the-court brief this summer supporting a restrictive Mississippi law denying women the right to an abortion after 15 weeks of pregnancy. The brief also argued that Roe v. Wade should be overruled.
“Women can ‘control their reproductive lives’ without access to abortion; they can do so by refraining from sexual intercourse,” Mitchell, a former Texas solicitor general, lectured in the brief, which was first reported by The Guardian.
Mitchell and co-counsel Adam Mortara (a former clerk for conservative Justice Clarence Thomas), also noted in the brief that women have the option to travel to other states with different laws to obtain an abortion. “Indigent women” could avail themselves of “abortion funds” to help them with costs, the brief claimed.
As for women’s sexual behavior, “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,” the brief noted. “But when this court announces the overruling of Roe that individual can simply change their behavior ... if she no longer wants to take the risk of an unwanted pregnancy.”
The “only time abortion is needed to ensure women’s ability to ‘control their reproduction lives’ is when a pregnancy results from non-consensual behavior, as in cases of rape, or when a pregnancy is endangering her life,” Mitchell added. Texas Gov. Greg Abbott (R) vowed earlier this month that he would somehow “eliminate all rapists” from the streets of his state.
The amicus brief was filed on behalf of the right-wing evangelical Texas Right to Life group, a key proponent and expected enforcer of the new Texas law.
The law bans women from having an abortion — even in cases of rape and incest — after six weeks of pregnancy, when many women are not aware yet that they are pregnant. About 90% of abortions in Texas were obtained after six weeks of pregnancy before the law was signed. The Supreme Court voted Sept. 1 not to immediately block the law.
To enforce the law, Texas has set up a bounty system for vigilantes who can collect $10,000 if they win a lawsuit filed against anyone who “aids and abets” an abortion — from a doctor to a friend who drives someone to a clinic. Texas Right to Life set up a reporting form for wannabe enforcers but has been bounced from two internet service providers for violating privacy requirements.
CORRECTION: A previous version of this story misquoted the brief in several places. Those references have been removed.