Anti-abortion crusader’s deposition requests generate fear, but no findings

Attorney Jonathan Mitchell speaks before the Texas Supreme Court on Oct. 28, 2021 (Supreme Court Of Texas Youtube Channel, Supreme Court Of Texas Youtube Channel)

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Anti-abortion legal crusader Jonathan Mitchell has filed at least seven legal petitions in Texas in recent years asking to depose abortion funds, providers and researchers. While these filings have created fear and confusion, none have yet to be approved by a judge.

Now, Mitchell has moved on to targeting individual women. He has filed at least two petitions seeking to depose women he claims traveled out-of-state to terminate their pregnancies, one of which a judge granted; that ruling is on hold while an appeal proceeds.

Under state law, the person who terminates a pregnancy cannot face criminal or civil penalties. Texas abortion laws govern in-state conduct, and there is broad constitutional protection for interstate travel. A federal judge has previously ruled abortion funds are likely safe from prosecution, and just this week, a federal judge in Alabama upheld the right to leave the state to seek medical care that is legal in another state.

All of this would make it difficult, if not impossible, to take action against someone who assisted a Texan in getting an out-of-state abortion, legal experts say. But Mitchell has made his name turning long-shot legal theories into the law of the land through exactly this strategy of incremental, often losing, legal battles that exploit confusion about the law.

“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,” said Charles “Rocky” Rhodes, a professor at South Texas College of Law Houston. “It’s not about a lawsuit, it’s about using fear to induce compliance.”

Rule 202 petitions

Most states, and the federal judiciary, allow a lawyer to depose someone before a lawsuit is filed to preserve their testimony. It’s most commonly invoked when someone may die before the lawsuit is filed.

Texas, however, goes much further, also allowing lawyers to depose someone for the purpose of investigating a potential claim before filing a lawsuit. This provision went largely unnoticed and unused before the judiciary revised its rules in 2000 and combined it with the more typical pre-suit deposition rule, said Lonny Hoffman, a professor at the University of Houston Law Center.

“This is a very unusual animal,” Hoffman said. “We're allowing people to use the court system, the coercive power of the state, to compel someone to give testimony before a lawsuit has been brought against them.”

Conservative Texas courts, typically not so friendly to plaintiffs, have slowly imposed stricter restrictions on when they agree to grant Rule 202 petitions, Hoffman said. In 2011, the Texas Supreme Court ruled that the “intrusion into otherwise private matters authorized by Rule 202 outside a lawsuit is not to be taken lightly,” and “is not a license for forced interrogations.”

When used correctly, Rule 202 petitions can diminish frivolous lawsuits and save time, Rhodes said.

“There are strong policy reasons for the rule. I think it’s a good rule,” he said. “It’s just being abused here. This is harassment, and contrary to the very purposes of the rule.”

Petitions filed against women

The two petitions Mitchell has filed against women who allegedly traveled out-of-state are similar. Both were filed by ex-boyfriends who say they disagreed with their former partner’s decision to get an abortion. The petitions assert each woman’s mother influenced her to have an abortion.

One petition, first reported by The Washington Post, was filed last month and is sealed. The woman is represented by the Center for Reproductive Rights, which declined to make her available for an interview.

“I think anyone would agree that it's pretty terrifying to be told that you might be sued for doing something that is entirely legal,” said senior staff attorney Molly Duane. “The petition uses the word murder 23 times. This is just not a normal document for anyone to receive and I think the inflammatory nature of it is by design.”

Duane reiterated that it is legal to travel to a state where abortion remains available to terminate a pregnancy.

“This is part of a yearslong campaign by Jonathan Mitchell and other abortion extremists to intimidate people into chilling their own constitutional activity,” Duane said.

The other petition, which has not been previously reported, was granted by a judge earlier this year. The Texas Tribune is not naming either party, or the jurisdiction in which it was filed, since no lawsuit has been filed and the woman named in the filing has not been accused of a crime. Her lawyer declined to comment.

The deposition in that case is on hold while an appeal proceeds.

In a brief, the woman’s lawyers argued that granting the petition would be “repugnant to the liberty interests that Texas fiercely protects,” by validating the petitioner’s “scheme to harass an ex-girlfriend who has moved on from her relationship with him.”

Both petitions claim to want to investigate potential violations of Senate Bill 8, also known as the “Texas Heartbeat Act,” which prohibits anyone from “aiding or abetting” an abortion after about six weeks of pregnancy. But that law, which Mitchell helped design, only applies to abortions performed by Texas-licensed physicians. While the U.S. Supreme Court allowed the law to remain in effect, a state judge found it unconstitutional, a case that is still moving through the courts.

“It is helpful for them to just have this [Rule 202] threat rather than actually litigate,” Rhodes said. “Because if an actual challenge arises and it's determined that somebody cannot actually sue under SB 8, that would make the law entirely toothless.”

The petitions also hint at future wrongful death lawsuits, which cannot be brought against the person who terminated their pregnancy. Mitchell previously filed a wrongful death lawsuit against women who allegedly helped their friend obtain medication to terminate a pregnancy in Texas. That case is still pending in Galveston.

In a filing, the lawyers in the case now on appeal noted the risk to women across the state if judges began green-lighting Mitchell’s strategy.

“A Rule 202 petitioner would be entitled to depose and seek documents from any woman who is not now pregnant, but was rumored to be at some time. Any woman who has a miscarriage could be subject to a forced interrogation. Any scorned lover could harass or intimidate their ex … for simply receiving a false-positive pregnancy test,” the lawyers wrote in their brief.

“Someone who has sex and then gains and loses weight may be forced to produce documents proving that she did not violate a wrongful death statute or SB 8,” they wrote. “The implications of a grant of this petition on the personal freedom and liberty of women to simply exist in Texas without being forced to answer to any ideologue anywhere in the world … are staggering.”

Other petitions

None of Mitchell’s previous Rule 202 petitions have resulted in anything other than extended legal battles. He has filed at least nine, including three against abortion funds that help people travel out-of-state.

Two of those cases — one against the Lilith Fund, filed in Jack County, and another in Denton County against the Texas Equal Access Fund — were nearly identical. In each case, the funds countersued and Mitchell moved to dismiss their suits.

The judge on each case ruled differently — one granted the dismissal, the other denied it — and, complicating matters further, two three-judge panels from the same appeals court also disagreed. Both cases will likely go to the Texas Supreme Court.

Meanwhile, in Hood County, Mitchell filed a Rule 202 petition against the San Antonio-based Buckle Bunnies Fund. A judge denied the fund’s motion to dismiss. That case is on appeal at the 2nd Court of Appeals in Fort Worth, which issued the dueling opinions in the Jack and Denton county cases.

In a rare move likely intended to address the discrepancies between the rulings, the appeals court voluntarily said it would hear this case en banc, before all seven judges, on May 22.

Mitchell filed two Rule 202 petitions against abortion providers that left Texas after the overturn of Roe v. Wade, which are still pending. He has also filed petitions against Sidley Austin, a law firm that said it would pay for Texas-based employees to travel out of state to get an abortion, and an abortion researcher at the University of Texas at Austin.

None of these petitions have resulted in any depositions, let alone any lawsuits. But they have generated a lot of fear and confusion, which legal experts say is largely the point.

“What’s so clever about [Rule 202 petitions] is that they never have to sue,” said Hoffman. “They just have to threaten to get the woman in front of a court reporter and force her to answer questions, and it has exactly the chilling effect that they want.”

In a statement, Mitchell reiterated his claim that abortion funds and employers that pay for out-of-state abortions are potentially vulnerable to criminal prosecution and civil liability.

“Conduct taken inside Texas that procures an abortion is a criminal act under the state’s pre-Roe abortion ban, even if the abortion occurs out of state,” he said, referring to 19th century laws that were on the books before the Supreme Court ruled in Roe v. Wade in 1973.

The question of whether those laws remain in effect has not yet been fully resolved by the courts. But a federal judge has preliminarily ruled that abortion funds are likely safe from prosecution.

But Mitchell has made his career working the margins of the law, pushing on weak spots until he finds a way in. He successfully circumvented the constitutional protection for abortion with SB 8, and has been a leading voice in getting the U.S. Supreme Court to consider reviving the Comstock Act, a zombie law restricting the mailing of abortion drugs, which hasn’t been enforced for over 100 years. He’s been advising towns and cities that want to pass so-called “travel bans” that prohibit the use of municipal roads to transport someone leaving the state for an abortion.

“He’s been harassing the funds and abortion support networks for years, so it’s not a new tactic,” said Elizabeth Myers, a Dallas attorney who represents the funds. “But now that target has expanded to actually include pregnant women, which they’ve said they would never target. This was always where they were going to go, and now we’re here.”

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Correction, : In a previous version of this story, the summary said none of the petitions had been approved by a judge. One of the nine petitions has been approved.

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