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A top GOP lawyer is laying the groundwork for a Supreme Court abortion ban

A lawsuit out of New Mexico sets up a showdown between the obsolete Comstock Act and the state's abortion protections.

While Jonathan Mitchell would probably prefer to file most of his litigation from inside the American uteri with which he is obsessed, the GOP’s top anti-abortion lawyer seems to be everywhere else these days, too. The architect of Texas’ “bounty hunter” abortion ban has lately been spotted trying to ban library books, making sure homophobic and transphobic employers don’t have to offer insurance that covers HIV prevention drugs, and hovering over the shoulder of a Texas man suing his ex-wife’s friends for allegedly helping her purchase medication abortion.

Now he’s set up shop in New Mexican mailboxes, though his ultimate target is the Supreme Court. Mitchell’s latest lawsuit, filed Monday, attempts to override the state’s abortion protections by using a 150-year-old federal law to criminalize the distribution by mail of “obscene” materials — including materials used to end pregnancy. While the 1873 Comstock Act hasn’t been struck down entirely, parts have been repealed, and the meat of the law has broadly been considered defunct for decades. Nevertheless, Mitchell’s suit stems from one small town — Eunice, New Mexico — designating itself as a “sanctuary city” where abortion is outlawed not by an outright ban, but in deference to Comstock’s federal prohibition on the distribution of abortion material.

Mitchell and his allies are not gunning for wins. They’re gunning for losses

Mitchell is setting up a face-off between federal and state statute, no matter how obsolete the federal law or how democratically sound the state law. And abortion protections in New Mexico have wide support. Recent rulings from the state's Supreme Court and bills passed protecting reproductive and gender-affirming care have affirmed the state’s role as an essential access point for abortion in the Southwest. It’s precisely because of New Mexicans’ support for abortion rights that Mitchell has chosen the town of Eunice as the stage for his latest anti-abortion stunt.   

The Comstock gambit itself isn’t new for Mitchell, who has worked with a Texas-based outfit behind a number of anti-abortion “sanctuary city” ordinances that began proliferating in earnest across the state in 2019. While other municipalities in Illinois and New Mexico had passed “sanctuary city” designations in years prior, Mitchell’s intervention was to introduce a novel enforcement mechanism mirroring the “bounty hunter” provision underpinning Texas’ statewide abortion ban, and to undergird “sanctuary city” ordinances by citing the Comstock Act. That’s exactly what Mitchell is up to with this latest suit out of Eunice, and it’s no accident that the filing comes on the heels of another Comstock-rooted abortion case beating a hotfooted path to the U.S. Supreme Court. 

That case, deliberately brought before a Donald Trump-appointed anti-abortion judge, seeks to strike down FDA approval of the abortion medication mifepristone, paving the way for federally designated fetal personhood. In early April, Judge Matthew Kacsmaryk did what he was trained to do by the right-wing Federalist Society, citing Comstock in a (now temporarily stayed) ruling that partially rolled back FDA-approved protocols for mifepristone. 

After that ruling, Mitchell put his other legal shenanigans on ice to echo Kacsmaryk’s Comstock reasoning by filing suit on behalf of Eunice. While Mitchell’s name isn’t on the Texas mifepristone case, his strategic fingerprints are all over it. Nothing was stopping Mitchell from filing suit in New Mexico before Kacsmaryk’s ruling. Indeed, nothing was stopping Mitchell or any member of his cohort from pursuing Comstock-based “sanctuary city” cases in Texas, where the state’s anti-abortion leadership and abortion-hostile courts would practically guarantee a win. But Mitchell and his allies are not gunning for wins. They’re gunning for losses, because losing means getting Comstock’s abortion prohibitions in front of the GOP’s bought-and-paid-for anti-abortion Supreme Court majority — the ultimate goal of America’s right-wing lawyering confederacy.

Mitchell is engineering a sort of civil war via the court system.

I use the term confederacy deliberately. Mitchell is engineering a sort of civil war via the court system that flips historic left-versus-right roles on “states’ rights” in the service of implementing a nationwide abortion ban. Legislating a ban to the same effect would be wildly unpopular, if not impossible. But Republicans are already mobilizing to block state-level ballot initiatives protecting abortion rights; reactivating Comstock is both an insurance policy against those efforts’ failures and another costly, time-consuming obstacle for abortion supporters to surmount if state protections for abortion prevail. 

Conveniently, this comes at a time when Republican donors and politicians are trying to distance themselves from hard-line abortion stances. Mitchell’s strategy allows the GOP to rely on courts to shore up their project of forced pregnancy, and it may very well work. Even the strict legal solvency of Mitchell’s finagling is practically irrelevant with a judiciary stacked with anti-abortion ideologues. If he does not succeed in New Mexico, be assured he’ll find another venue in which to challenge the democratic rule of law. If there’s anywhere Jonathan Mitchell wants to be, it’s wherever he can do the most harm.