Deposition Requests from An Anti-Abortion Legal Activist Cause Fear but Yield No Answers

At least nine petitions have been filed by Jonathan Mitchell requesting information from women, physicians, and proponents of abortion. So yet, none have led to a deposition.

Anti-abortion Legal Crusader Jonathan Mitchell’s Legal Petitions:

In recent years, anti-abortion activist Jonathan Mitchell has filed at least seven court cases in Texas requesting the deposition of abortion practitioners, funders, and researchers. Although a court has not yet authorized any of these filings, they have caused anxiety and confusion.

Mitchell has now turned his attention to single ladies. He has filed at least two requests, one of which was approved by a court while an appeal is pending, to depose women he believes traveled out-of-state to end their pregnancies.

A person who ends a pregnancy is not subject to criminal or civil punishment under state law. Texas abortion laws govern in-state behavior, while the constitution heavily protects interstate travel. Just last week, a federal judge in Alabama affirmed the freedom to leave the state to seek medical care allowed in another state. A federal judge has already determined that cash used for abortions is probably protected from prosecution.

Legal experts think that all of this would make it difficult, if not impossible, to pursue legal action against someone who helped a Texan have an abortion outside of the state. However, Mitchell has created a reputation for himself by using this precise tactic of progressively losing court battles that take advantage of ambiguity in the law to establish long-shot legal theories as the nation’s supreme law.

Charles “Rocky” Rhodes, a professor at South Texas College of Law Houston, stated, “These… proceedings are just about scaring people into thinking they can’t help somebody going out of state to have an abortion, or they’re going to go after them with a lawsuit.” “It’s about instilling fear to compel compliance, not suing.”

Grant Rule 202 Petitions:

Most states and the federal judiciary permit a lawyer to depose a subject before filing a lawsuit to preserve witness testimony. It’s most frequently used when a lawsuit is not filed in time for a death.

On the other hand, Texas goes much further and permits attorneys to question an individual to look into a possible claim before bringing legal action. Lonny Hoffman of the University of Houston Law Center remarked that this provision was widely ignored and underutilized until the judiciary updated its rules in 2000 and paired it with the more common pre-suit deposition rule.

Hoffman said, “This animal is extremely unusual.” “We are permitting individuals to utilize the legal system, which is the state’s coercive authority, to force someone to testify before a lawsuit has been filed against them.”

Hoffman stated that conservative Texas courts are gradually using more stringent guidelines, often unfriendly to plaintiffs when deciding whether to approve Rule 202 petitions. The Texas Supreme Court said in 2011 that “forcible interrogations are not permitted” and that “It is important to treat seriously any interference into otherwise private concerns permitted by Rule 202 outside of court.”

According to Rhodes, Rule 202 petitions can reduce pointless lawsuits and save time when appropriately utilized.

“The regulation is in place for good policy reasons. He declared, “I think it’s a good rule.” Here, it’s just being misused. This is harassment, and it goes against the fundamental goals of the regulation.

The Two Petitions Filed against Women:

Mitchell has filed two identical petitions against women who are said to have flown out of state. Ex-boyfriends who claim they disapproved of their ex-partner’s choice to get an abortion filed both of the cases. According to the petitions, every lady was persuaded to undergo an abortion by her mother.

One secret petition was submitted last month and was first made public by The Washington Post. The Center for Reproductive Rights, the woman’s attorney, refuses to allow her to be interviewed.

Senior staff attorney Molly Duane stated, “I think anyone would agree that it’s pretty terrifying to be told that you might be sued for doing something entirely legal.” “The term murder is used 23 times throughout the petition. This paper should not be sent to anyone, and I believe it is intentionally provocative.

Duane restated that it is permissible to visit a state where abortion is still allowed to end a pregnancy.

According to Duane, “Jonathan Mitchell and other abortion extremists have been using intimidation tactics for years to try and get people to stop practicing their constitutional rights.”

The judge allowed the other petition earlier this year; it was not disclosed previously. Given that no lawsuit has been filed and the lady listed in the document has not been charged with a crime, The Texas Tribune is not naming either party or the jurisdiction in which it was filed. Her attorney opted not to respond.

In such instances, the deposition is pending the outcome of an appeal.

The woman’s attorneys contended in a brief that approving the petition would validate the petitioner’s “scheme to harass an ex-girlfriend who has moved on from her relationship with him,” which is “repugnant to the liberty interests that Texas fiercely protects.”

Both petitions seek to investigate potential violations of Senate Bill 8, sometimes known as the TX Heartbeat Act, which prohibits “aiding or abetting” an abortion after about six weeks of pregnancy. However, the law—which Mitchell helped draft—only covers abortions carried out by medical professionals with a Texas license. The matter is still pending in court after a state judge declared the statute illegal despite the U.S. Supreme Court upholding its constitutionality.

Rhodes stated, “It is better for them just to have this [Rule 202] threat than actually to litigate.” “Because the law would become completely meaningless if there was a real challenge and it was decided that someone could not file a lawsuit under SB 8.”

FutS.B.e wrongful death cases, which cannot be filed against the individual who ended their pregnancy, are also alluded to in the petitions. Mitchell had previously sued individuals in Texas for wrongful death after they allegedly assisted their buddy in getting drugs to halt a pregnancy. In Galveston, that lawsuit is still ongoing.

In an appeal, the attorneys for the plaintiffs in this case pointed out the danger judges would pose to women in the state should they approve Mitchell’s plan.

Even if a woman is not currently pregnant, she may be subject to a deposition and document request under Rule 202 by someone who wishes to get papers from her. Forced questioning might be used for any woman who experiences a miscarriage. The attorneys stated in their brief that “any rejected lover could harass or threaten their ex… for merely receiving a false-positive pregnancy test.”

They stated that “someone who has sex and then gains and loses weight may be required to present documentation demonstrating that she did not break SB 8 or an S.B.ongful death statute.” 

“The implications of granting this petition are staggering in terms of what it means for women to be free to live their lives in Texas without having to answer to any ideologue anywhere in the world.”

Other Petitions:

Before this, Mitchell’s Rule 202 petitions had only led to protracted court disputes. He has filed at least nine, three of which are against funding that supports out-of-state travel for abortions.

Two cases were identical: one was filed in Denton County against the Texas Equal Access Fund and the other in Jack County against the Lilith Fund. The funds countersued in each case, and Mitchell tried to have their actions dismissed.

In addition to the judges’ differing decisions in each instance (one granting the dismissal, the other refusing it), two three-judge panels from the same appeals court further complicated matters. It is expected that the Texas Supreme Court will hear both cases.

Meanwhile, Mitchell filed a Rule 202 petition in Hood County against the Buckle Bunnies Fund, which is situated in San Antonio. A court refused the fund’s move to dismiss. The 2nd Court of Appeals in Fort Worth, which released the opposing decisions in the Jack and Denton county cases, is hearing an appeal.

The appeals court unilaterally announced that it would consider this issue en banc before all seven judges on May 22 in an unusual action meant to rectify the differences in the decisions.

Mitchell filed two ongoing Rule 202 petitions against abortion providers who fled Texas following the overturning of Roe v. Wade. In addition, he has petitioned against an abortion researcher at the University of Texas at Austin and Sidley Austin. This law firm offered to pay for its workers in Texas to fly out of state for an abortion.

Not even depositions or lawsuits have come from any of these requests. However, they have caused a great deal of anxiety and uncertainty, which legal experts claim is the goal.

Hoffman remarked, “The brilliant thing about [Rule 202 petitions] is that they never have to sue.” “All they need to do to achieve the desired chilling effect is to threaten to put the woman in front of a court reporter and make her answer questions.”

Mitchell restated in a statement his assertion that employers and abortion funds that cover out-of-state abortions may be subject to legal and criminal penalties.

“Actions taken within Texas that obtain an abortion are illegal under the state’s pre-Roe abortion statute, regardless of whether the abortion takes place outside the state,” he stated, alluding to 19th-century legislation that existed before the 1973 Supreme Court decision in Roe v. Wade.

The courts have not yet thoroughly addressed the issue of whether such statutes still stand. However, a federal judge has determined that cash used for abortions is probably immune from prosecution.

However, Mitchell has built his career on operating on the edges of the law, taking advantage of openings and getting inside. He was instrumental in persuading the U.S. Supreme Court to consider resurrecting the Comstock Act. This zombie statute restricts the sending of abortion medications and hasn’t been enforced in over a century. He also effectively skirted the constitutional protection for abortion with SB 8.

“It’s not a new tactic; he’s been harassing the funds and abortion support networks for years,” the funds’ Dallas-based attorney, Elizabeth Myers, said. “However, despite their declaration that they would never target pregnant women, that aim has now grown to encompass them. They would always come here, and that is where we are today.