The Texas Heartbeat Act and the Dobbs Decision

In recent years, the attorney Jonathan Mitchell has become a crucial figure in the anti-abortion movement. Advising a Texas state senator, Mitchell developed Texas’s S.B. 8 legislation, which allows for civil lawsuits against individuals who have helped facilitate an abortion—acts like driving a patient to an appointment. The law was crafted to evade review by the Supreme Court in the period before Dobbs ended the precedent of Roe v. Wade. Opponents of the law have called it state-sponsored vigilantism. Mitchell is now representing a man seeking millions of dollars in civil damages from friends of his ex-wife—who helped her access abortion medication—in a wrongful death lawsuit. And yet, despite his conservative politics, Mitchell has something in common with some legal thinkers on the left: a critique of the Supreme Court and its extraordinary power. As an opponent of the belief in judicial supremacy, Mitchell asks, “Why should it be the Supreme Court and not Congress?” to have the last word on what the Constitution means. “Why should it be the Supreme Court and not a state legislature that might have a different view?” Mitchell rarely gives interviews, but he agreed to speak with The New Yorker’s contributor, Jeannie Suk Gersen, a professor at Harvard Law School who clerked for the former Supreme Court Justice David Souter.