The architect of what is now Texas law, Governor Greg Abbott‘s “heartbeat” legislation that bans all abortion after six weeks, attacked the constitutional rights of same-sex couples to marriage, and sex between persons of the same sex, in a brief filed with the U.S. Supreme Court this past summer. In that brief he also called same-sex marriage a “judicial concoction,” and argued that women should merely abstain from sexual intercourse as a method to “control their reproductive lives.”
Former Texas solicitor general and Federalist Society member Jonathan Mitchell, The Guardian reports, “who played a pivotal role in designing the legal framework of the state’s near-total abortion ban, also argued on behalf of anti-abortion group Texas Right to Life that women would still be able to terminate pregnancies if Roe was overturned by traveling to ‘wealthy pro-abortion’ states like California and New York with the help of ‘taxpayer subsidies.'”
“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, which calls for Roe to be overturned,” The Guardian adds, “Mitchell and co-counsel Adam Mortara, an anti-abortion activist and lawyer who clerked for the supreme court justice Clarence Thomas, said such a decision could open the door for other ‘lawless’ rights and protections to be reversed, including the right to have gay sex and the right to same-sex marriage.”
In their July, 2021 Supreme Court amicus brief, Mitchell and Mortara also call “interracial marriage” one of several “supposed constitutional ‘rights’ that have no basis in constitutional text or historical practice.” Among them, “court-imposed ‘substantive due process’ rights whose textual and historical provenance are equally dubious.”
On same-sex marriage and sex their opinion was devastatingly ruthless.
“The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage,” the amicus brief reads. “These ‘rights,’ like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence.”