Politics
The guy who wrote Texas’ most infamous abortion law just quietly settled his test run
In May 2021, Texas Gov. Greg Abbott signed his state’s version of a “heartbeat” ban, forbidding nearly all abortions after six weeks — but with a twist. The Texas bill, as The New York Times reported, also empowered “any private citizen to sue doctors or abortion clinic employees who would perform or help arrange for the procedure.”
Left unsaid was that private citizens, rather than law enforcement or other state officials, would be the only people who could enforce the ban. By empowering privateactors to enforce the ban, the thinking went, abortion providers and other prospective plaintiffs couldn’t sue the state to prevent its enforcement; instead, anyone and everyone could be a prospective plaintiff, and state officials would have no role at all.
That “bounty hunter” feature of the law — designed specifically to circumvent judicial review — was the conceptual brainchild of a then-relatively unknown conservative lawyer, Jonathan Mitchell, whose admirers have praised him as a “technical magician.” And it worked. S.B. 8 took effect in September 2021, despite providers’ petition to the Supreme Court to stay its implementation. It then survived a more thorough Supreme Court review months later.
Of course, S.B. 8 has never produced an onslaught of litigation, nor did anyone expect it to. The fear of being sued (not to mention the potential liability) was the whole point. And that worked too, effectively ending abortion services in Texas even before Roe v. Wade was overturned in June 2022.
Since then, Mitchell, who clerked for the late Justice Antonin Scalia and served as Texas’ solicitor general, has become something of a conservative legal hero. In February, through a methodical, “buttoned-down presentation,” he convinced the Supreme Court to rule unanimously that former President Donald Trump should not be disqualified from appearing on Colorado’s presidential primary ballot, thereby overturning the Colorado Supreme Court’s interpretation of Section 3 of the Fourteenth Amendment.
Mitchell has never enforced S.B. 8 itself. In March 2023, Mitchell decided to mimic its bounty hunter provision by filing a lawsuit in Galveston County court on behalf of Marcus Silva, who had divorced his ex-wife, Brittni, just the month prior. Silva alleged Brittni had undergone a medication abortion during their marriage with the help of two friends, one of whom obtained abortion pills from a third woman. Silva sued all three women — but not his ex-wife — alleging they caused the wrongful death of his child and conspired “to murder Baby Silva with abortion pills.” And Silva sought more than $1 million in damages from each of them.
Further, Silva attached to his complaint screenshots of text exchanges between and among his ex-wife and the defendants. Those text chains included discussions of how and where to obtain the pills, when to take them and even how to ensure Silva never found out about her pregnancy or the abortion.
Within weeks of Mitchell’s opening legal salvo, Brittni Silva’s friends sued him too, charging that her ex-husband had invaded their privacy. Despite the defendants’ counterpunch, Marcus Silva’s suit shocked even pro-abortion advocates familiar with Mitchell’s track record. Legal commentators Dahlia Lithwick and Mark Joseph Sternfor instance, remarked that by representing Silva, Mitchell seemed to have twin aims: “to set a precedent that helps isolate pregnant people through terror and surveillance” — or what they called “spousal abuse via lawsuit” — and “to make it clear that anyone offering advice about abortion may be bankrupted in a court of law.”
But on Oct. 10, on the eve of a trialMitchell filed papers to terminate the case “with prejudice,” meaning Silva cannot refile his suit. Mitchell’s co-counsel, Briscoe Cain, told The Washington Post “the parties have executed a settlement agreement and all claims and counterclaims have been dismissed”; a court filing confirms “the parties’ agreed resolution.” Mitchell declined BLN’s request for comment.
Exactly what was behind the decision to settle is unclear, but the progress of the case gives some clues. In April, a Texas appeals court ruled that Marcus could not force Brittni to turn over communications relating to her abortion, including with the defendants. The court noted that his complaint alleges she violated “numerous state and federal criminal laws,” including the Comstock Act of 1873, which prohibits the mailing of anything “intended for producing abortion.” Even though the Biden administration does not interpret Comstock broadly as prohibiting the mailing of abortion medication, the court reasoned that to compel her to produce the communications at issue could violate her constitutional rights, notably her right against self-incrimination.
Mitchell then appealed to the Texas Supreme Court, which denied the petition in June in a three-sentence order. One justice of that court, in a concurring opinion, called out Silva’s “disgracefully vicious harassment and intimidation of his ex-wife Brittni during the course of their marriage’s demise and during this litigation,” noting that his “atrocious treatment” of her made him a “particularly unsuitable beneficiary of this Court’s discretionary” powers. (Among other things, The Washington Post reports, “Silva’s ex-wife shared with the court transcripts of recordings of the verbal abuse she said she experienced from Silva ahead of the lawsuit being filed, including threats to persecute her if she didn’t have sex with him and do his laundry.”)
And finally, we know that earlier this week, the trial judge refused Silva’s request to delay trial, which was scheduled to begin on Oct. 14.
Neither Silva nor his lawyers have explained publicly why they backed down, but without Brittni’s communications, it may be that they simply lacked the evidence to win at trial. Meanwhile, one of the defendants told the Post “[t]here was no money exchanged in connection with” the settlement.
And the ultimate irony? Despite losing her constitutional right to abortion, a woman’sotherconstitutional rights may have prevented the guy who wrote the country’s most infamous abortion ban from using other, facially neutral laws to accomplish the same aims.
CORRECTION (Oct. 12, 2024, 4:05 p.m. ET): A previous version of this article misidentified the law under which Silva brought the suit. The suit was brought under Texas’ wrongful death statute, not under S.B. 8, which solely concerns abortions performed by Texas-licensed physicians.
Lisa Rubin is an BLN legal correspondent and a former litigator. Previously, she was the off-air legal analyst for “The Rachel Maddow Show” and “Alex Wagner Tonight.”
Politics
Trump wants the Postal Service to radically overhaul mail voting. But ballots are already going out.
President Donald Trump’s controversial demands for the Postal Service to overhaul and monitor millions of mail ballots hit another snag on Friday, when North Carolina became the first state in the nation to start sending out ballots for the November election.
In March, Trump signed the initial executive order, which aimed to crack down on mail-in voting — which he regularly alleges without evidence is a vector for widespread voter fraud — and assert an unprecedented amount of federal control over the upcoming elections.
Under this order and the subsequent rule drafted by the U.S. Postal Service, the USPS would refuse to deliver ballots to states that failed to provide lists of eligible mail voters or did not adhere to an approved envelope design style.
Since then, the order has faced legal challenges, and it remains paused by a federal judge’s orders. But the Trump administration has asked the Supreme Court to allow the new rule to proceed — something current and former election officials from both parties say would be both a legal nightmare that oversteps the federal government’s traditional role in elections and a logistical one that is happening far too close to the November election to implement even if they agreed with it.
“Why the hell are you rocking the boat this late in the game?” said Stephen Richer, a former Republican recorder of Maricopa County, Arizona, who has clashed with Trump allies for defending the security of the 2020 election.
Still, election officials are trying to project a sense of normalcy for voters, particularly in North Carolina, which serves as a test of whether established local election systems can operate normally amid intensifying federal scrutiny.
“I want to emphasize this point because there has been a lot of outside noise: Our county workers are ready,” Sam Hayes, a longtime Republican lawyer in the state and now executive director of the North Carolina State Board of Elections, said in a Thursday afternoon press conference.
He added, “All we can do is what we’re doing. … It is business as usual as far as I’m concerned.”
Despite the legal challenges, the Trump administration has continued to press the courts to let it proceed. The Trump administration asked the Supreme Court on Thursday to lift an order from a Massachusetts judge which temporarily prevents the USPS from enforcing their rule. It is the second time the Trump administration has asked the Supreme Court to step in, after winning an earlier victory in which the high court dismissed an earlier hold on the rule as premature.
“The uncertainty is coming from a single activist judge who continues to try and obstruct President Trump from implementing commonsense measures to protect the security of mail-in ballots and ensure only Americans vote in American elections,” White House spokesperson Lauren Bis said in a statement. “These safeguards for mail ballots were proposed months ago giving election officials ample time to prepare for the 2026 election.”
The USPS did not immediately respond to requests for comment.
Election officials said that if the rule goes into effect this close to November, it would cause chaos and place added strain on the USPS and election officials. And an anonymous federal whistleblower said in a report circulated earlier this week by Sen. Richard Blumenthal (D-Conn.) that the USPS was moving forward in a “secretive, rushed, chaotic, and fundamentally flawed process” to try to implement the new system ahead of the midterms.
In the coming weeks, states across the country will follow North Carolina’s lead. Nine other states will begin mailing ballots in the next two weeks, according to a tracker from the National Conference of State Legislatures — with the biggest day for mailing coming 45 days before the election in mid-September.
“It would be so outrageous to try to let this go into effect. It’s hard to even imagine,” said Ben Hovland, a senior fellow for democracy at the progressive think tank Center for American Progress and former Democratic commissioner with the Election Assistance Commission who was fired by Trump in July.
He added, “It would be a break-glass moment for our democracy.”
The rule would require meticulous changes to ballot handling and tracking practices that Hovland said are impossible to implement before Election Day in about two months, effectively disenfranchising millions of voters.
“Ballots are printed. Envelopes are printed. You can go on and on with all the practical reasons that show that implementing something like this at this time is not feasible,” he said.
Richer said he doubted the new rules would bring about more security. Even if the USPS received lists from the states, according to the postal service’s final rule, it would not do any additional vetting of the list, Richer said.
“It’s just that the mail ballots have to be on that list, and I don’t see what added value for election integrity that does,” he said.
He added, “It creates a lot of administrative burden, and I think it creates a lot more opportunity for error.”
While a decision looms in the courts, election officials and experts cast doubt on the likelihood of the rules going into effect before November. A more pressing issue, they said, is the confusion and uncertainty surrounding mail-in ballots, which could subvert and change the behaviors of voters.
“It makes things seem messy or difficult, and it can dissuade people from participating or coming out to vote,” Hovland said. “It certainly also helps establish a pretext to make bad faith claims about election results.”
Hovland said that while none of these claims of voter fraud are backed up with facts, they could cause Americans to lose faith in the voting process.
Still, some current officials contended they were well-prepared for whatever happens — and that they’d be able to communicate effectively with voters who have become increasingly buffeted by dramatic rhetoric about the once-unmentioned nuts and bolts of actually running an election.
“There’s always a lot of noise around elections, that’s not going to change, and it can be hard to differentiate that from what’s actually going on on the ground,” said Jason Tyson, director of external affairs for the North Carolina State Board of Elections.
As Election Day approaches, Tyson and election officials said they urge voters to check their registration status and make a plan to vote.
He added, “I think we’ve got a really well-trained, solid staff who are ready, and who have gone through all of the checks and balances and points of contact that we need to do to get to where we are.”
Missouri’s Supreme Court suspended a congressional map that state Republicans drew last year that would have netted the GOP an additional House seat, likely keeping the seat in Democratic hands this November.
The court ruled unanimously on Thursday that a referendum petition organized by Democrats to put the new congressional maps to a vote was incorrectly deemed insufficient by Republican Secretary of State Denny Hoskins, and ordered that the gerrymandered map be put to a vote in the fall.
Voters will ultimately decide the fate of the new lines in November. But in the meantime, it cannot be in place for the midterms, meaning Rep. Emanuel Cleaver’s original Kansas City-based district will likely stay in Democrats’ hands this fall.
Construction crews could begin the excavation process for what will be President Donald Trump’s massive 250-foot-tall arch in as soon as the next two weeks, Interior Secretary Doug Burgum announced on Thursday.
The monument — which will be erected in a traffic circle at the head of the Memorial Bridge over the Potomac River, coming between the Lincoln Memorial and Arlington Cemetery — has generated controversy as concerns emerged about the design and traffic congestion during construction.
The arch would take two to three years to construct on the proposed schedule, according to documents released in June.
“We are pleased to announce that after a very long wait (over 125 years!), we are preparing to start, over the next two-week period, the excavation work necessary for the Great Triumphal Arch and Military Observation Deck,” Burgum said in a social media post.
The 250-foot-tall arch will be among Trump’s most visible projects, as the administration continues its attempts to remake Washington. Critics, however, have voiced fears that the structure may be too large, and overshadow other monuments, like the Lincoln Memorial on the other side of the Potomac River.
The proposed arch will dwarf the Arc de Triomphe in Paris in size. It is unclear at this time how much construction will cost; the National Endowment for the Humanities earmarked $15 million for the monument.
“This will be one the the Great Pieces of American Architecture, honoring the history and significance of Arlington National Cemetery and befitting the most powerful Capital in the World,” Burgum said.
The monument will be constructed on land overseen by the National Park Service, and critics have argued Trump’s latest project requires explicit congressional approval. However, the Interior secretary continues to rebut these claims.
Instead, Burgum echoed previous statements and said historically “Congress and various congressionally chartered commissions decreed that a monumental work should adorn Columbia Island,” the traffic circle where the monument is planned to be constructed.
“Despite Congress’s intent, the site became and remains today a barren traffic circle lacking any monumental treatment and significant historic value,” he said.
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