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Texas solicitor general to Supreme Court: Nix Roe v. Wade, LGBTQ rights while you're at it

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Photo by Tom Brenner / Reuters
Photo by Tom Brenner / Reuters

Texas Solicitor General Jonathan Mitchell has urged the US Supreme Court to overturn the landmark Roe v. Wade decision, which legalized reproductive choice, and to take the opportunity to also reverse key LGBTQ rights decisions — notably Obergefell v. Hodges and Lawrence v. Texas.

Mitchell filed the brief in connection with a case now pending before the high court, a challenge to Mississippi's restrictive new anti-abortion law. While plaintiffs in that case argue that the state law violates the Roe v. Wade ruling, Mitchell and other anti-choice activists want the court to toss the Roe decision altogether.

Mitchell is known as the legal mastermind behind Texas's own anti-choice law.

"Women can 'control their reproductive lives' without access to abortion; they can do so by refraining from sexual intercourse," Mitchell wrote in the brief.

"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. But when this court announces the overruling of Roe, that individual can simply change their behavior in response to the court's decision if she no longer wants to take the risk of an unwanted pregnancy."

In the same brief, Mitchell and co-counsel Adam Mortara, an anti-abortion activist and lawyer who clerked for the supreme court justice Clarence Thomas, said that a decision to reverse Roe v. Wade could be used by the high court's conservative majority to undo other precedents.

Among these other prior rulings, which Mitchell characterized as "lawless," he explicitly noted the right to have Gay sex and the right to same-sex marriage.

Mitchell's brief argues that although it's not necessary for the high court to immediately overrule the legal cases that enshrine those rights, "neither should the court hesitate to write an opinion that leaves those decisions hanging by a thread."

Those cases — Lawrence, which outlawed criminal sanctions against people who engaged in Gay sex; and Obergefell, which legalized same-sex marriage — were "far less hazardous to human life," Mitchell said but just "as lawless as Roe."

The abortion case the Supreme Court will hear this term centers on the legality of a Mississippi law that can ban abortion at 15 weeks' gestation. Roe gives pregnant women the right to an abortion up to roughly 24 weeks, or the point at which a fetus can live outside the womb.

The court's decision to hear the case has alarmed reproductive rights advocates because it blatantly violates the standard set by Roe. Now, in the wake of Texas's near-total abortion ban, the possibility that the court could overturn the constitutional right to abortion has come into sharp focus.

Such a ruling could come in spite of polls that show most Americans believe abortion should be legal in most circumstances.