Justin Rex/AP Photo
People gather in front of the J. Marvin Jones Federal Building and Mary Lou Robinson U.S. Courthouse to protest a lawsuit to ban the abortion drug mifepristone, February 11, 2023, in Amarillo, Texas.
The state of Texas currently has one of the most aggressive and sweeping anti-abortion laws that’s ever been passed on its books, known as the Texas Heartbeat Act, or more colloquially, the abortion bounty hunter law.
The six-week abortion ban leaves enforcement up to everyday Texans, and was enacted well before the U.S. Supreme Court revoked Roe v. Wade and a woman’s rights to reproductive health care, in a brazen end run around then-existing law.
Yet abortion is still on the ballot in Texas this November.
Residents in the Texas Panhandle city of Amarillo will vote on November 5 on a ballot measure to enact what abortion opponents call an “abortion trafficking ban,” which would bar the use of the city’s roads to seek the procedure out of state, among other far-reaching provisions. Interstate 40, which cuts through Amarillo, is one of the gateways into New Mexico, the nearest state to Texas where abortion remains legal. The direct vote on the proposals comes after a majority of the Amarillo City Council—self-described “pro-lifers” in the deep-red Texas Panhandle—voted 4-1, twice, to reject the new proposed policies in June.
By now, many Amarillo voters are probably aware that grassroots anti-abortion activist Mark Lee Dickson has played an outsize role in the long-running efforts to enact extremist abortion restrictions in their region. Emails obtained via public records requests show that Dickson and Jonathan Mitchell, the far-right legal activist and former Texas solicitor general, “dictated terms and pressured officials in [nearby] New Mexico municipalities to pass ordinances restricting [abortion] clinics,” for example, and even required Mitchell’s personal approval before any proposed changes could be made, according to a March 4 report by The Texas Tribune.
Yet the fact that the proposed local ordinances in Amarillo actually originated as part of a larger scheme by far-right activists to ban medication abortion nationwide, and to criminalize drug companies, doctors, nurses, and anyone else who offers any aid to a person seeking even a legal abortion, likely remains obscure to most Amarillo voters.
Dickson himself told me that Mitchell, who also serves as his attorney, “is the co-author of the [Amarillo] ordinance.” But Mitchell and other abortion rights opponents didn’t just encourage the city to pass the proposed policy in 2023, according to city officials and a previously undisclosed email from Mitchell to those elected representatives.
Mitchell also explicitly encouraged officials to enact the ordinance so that Amarillo could then try to intervene in Alliance for Hippocratic Medicine v. FDA, a major lawsuit seeking to ban mifepristone that was then pending in federal district court in Amarillo, and was widely expected to end up before the Supreme Court, which it did. Mitchell believed that Amarillo’s intervention would have cured perceived problems with AHM’s standing, or its right to sue—which was in fact the issue that ultimately caused the Supreme Court to rule against the anti-abortion group in June, temporarily preserving access to the abortion medication.
Amarillo residents will vote on November 5 on a ballot measure to enact what abortion opponents call an “abortion trafficking ban.”
“If Amarillo joins the lawsuit as an intervenor, it will obviate the FDA’s standing objections because Amarillo will indisputably have standing to sue and any problems with the Alliance for Hippocratic medicine’s standing will no longer matter,” Mitchell wrote in a letter to Amarillo Mayor Cole Stanley in October 2023.
“For this tactic [to] work, we need the ordinance enacted as soon as possible, preferably by the end of this month but no later than the end of this year,” he added. “If the city waits until the spring or decides to place the ordinance on the ballot for voters to decide, the Supreme Court will have already ruled and it will be too late to salvage the litigation in Alliance for Hippocratic Medicine.”
Mitchell didn’t respond to my requests for comment.
The Supreme Court decided on June 13 that AHM lacked standing because it couldn’t point to a recognizable harm suffered by any of its members due to the FDA’s approval of mifepristone in 2000, or the agency allowing the medication to be obtained via mail and telemedicine appointments after the onset of the COVID-19 pandemic.
Lawyers representing AHM and the government also didn’t respond to requests for comment.
The Supreme Court sent the case back down to the lower courts. It would be unusual at this point for the states to be allowed to pursue the case, although it’s not entirely clear how the lower courts will approach that issue.
MAYOR STANLEY CONFIRMED RECEIVING Mitchell’s inquiry last year. City council member Tom Scherlen, who has spoken out against the proposed city ordinances, told me on September 4 that he was also aware of the request to work toward intervening in the Supreme Court case. Scherlen added that the council didn’t seriously discuss the request amongst themselves or with voters, because they never even reached agreement over whether the sweeping proposals were sensible—or constitutional—in the first place.
Mitchell “was putting on a full-court press to get us to make a decision, the sooner the better, so he could have standing when a case made it to the Supreme Court. And we didn’t do that,” Scherlen said. The council ultimately rejected the proposed ordinance after months of debate; some members indicated that they believe the rules are possibly unconstitutional and would subject the city to lawsuits, and some said that issues with federal regulation are more appropriately dealt with at the state level. Scherlen added that the regulations amount to the sort of big-government overreach that conservatives are typically opposed to.
The communications further reveal how Mitchell and his allies in the conservative Christian legal movement manufacture legal disputes (and, sometimes, even the underlying facts) and then steer those cases to reliably partisan judges with a demonstrated willingness to accept radical or simply nonsense legal arguments in order to enact conservative policies nationwide. And it shows how central the tactic of judge-shopping is to those efforts, which have seen stunning successes in the courts since the election of former President Donald Trump.
Mitchell, who offered to represent Amarillo for free in “any intervention proceedings that might arise” in the case, seemed intent on keeping the issue before former anti-abortion activist Judge Matthew Kacsmaryk, even mentioning the judge with a degree of familiarity in his letter to Mayor Stanley. Kacsmaryk is the lone sitting judge and default option in the Amarillo federal courthouse, which has become the go-to forum for anti-abortion and other right-wing litigation.
“As a pro-life mayor, who sits on a pro-life council, we were trying to gain an understanding of how the municipality could join that lawsuit, and let’s just say the geography of our location was the only thing,” Stanley said.
In this instance, the “tactic” didn’t work—for now, at least. Dickson and other local activists have pivoted and worked to successfully put the ordinance to a public vote in November. And, of course, there can be little doubt that Mitchell and others in the conservative legal movement will seek to revive the challenge in the lower courts, or with a whole new plaintiff.
EVEN IN A WORLD WHERE AMARILLO HAD ACQUIESCED, Mitchell’s analysis of the standing issues is dubious, and the potential for Amarillo’s intervention to “salvage” the AHM case would remain a long shot. It’s hardly clear what specific harm any city with an “abortion trafficking ban” suffers as a direct result of the FDA’s decision that mifepristone is a safe drug with useful pharmaceutical applications, or that it’s also safe if prescribed via telemedicine and mailed to patients.
Still, and perhaps more importantly, it’s worth keeping in mind that Mitchell and his allies have seen stunning successes pushing unprecedented legal arguments, even when an overwhelming majority of legal experts reject those arguments as unconstitutional or even ridiculous. The bounty hunter provisions, or private enforcement mechanism, in the Texas Heartbeat Act, for example, were engineered by Mitchell.
More to the point, the Alliance for Hippocratic Medicine’s case was blessed by judges until it got all the way up to the highest court in the land, where the justices finally decided that AHM never had a right to sue in the first place. Some of the conservative justices even seemed inclined to overlook the obvious deficiencies in AHM’s standing, but they apparently made a strategic calculation to avoid issuing another major, 6-3 anti-abortion ruling shortly before a presidential election.
Moreover, although Amarillo didn’t bite, states like Idaho, Missouri, and Kansas have in fact tried to assert a right to intervene in the case (despite the fact that jurisdiction over their issues would more properly lie in federal courts located in … Idaho, Missouri, and Kansas). The federal government has argued that the states’ motion to intervene was made purely to overcome weaknesses in AHM’s standing—much like Mitchell’s plan for Amarillo.
Carrie Baker, a lawyer and professor of American studies, said she can’t see how intervention by a city with an abortion travel ban ordinance would enhance AHM’s standing. Baker chairs the Program for the Study of Women and Gender at Smith College.
“A local city doesn’t get to weigh in on what the FDA does nationally, and I just don’t see how Amarillo has a specific, actual injury that is traceable to the FDA’s approval of mifepristone or expanding that to telemedicine,” Baker said.
“That said, I do recognize that there has been abortion exceptionalism,” she added, saying she could imagine certain judges—and perhaps Supreme Court justices—reframing or manipulating standing doctrine in order to allow certain plaintiffs to challenge FDA action on abortion drugs specifically.
Indeed, Mitchell certainly seemed to believe or understand that some judges would accept the AHM’s lawsuit, or Amarillo’s intervention, even though many legal experts concluded it had no leg to stand on. And, of course, Mitchell’s record does demonstrate that some judges are in fact shockingly amenable to his often unprecedented arguments.
In retrospect, the conservative Christian legal movement was perhaps just two votes shy of achieving another major milestone in its efforts to restrict American women’s rights even further, barely a year after the Dobbs ruling; and those votes belonged to a couple of city councilmembers in the Texas Panhandle.
