(Bloomberg) -- A key architect of the new Texas abortion law defended its enforcement mechanism under questioning by Supreme Court Justice Sonia Sotomayor.
During oral arguments Monday, Jonathan Mitchell, the Texas lawyer who came up with the controversial provision, argued that the U.S. shouldn't be able to stop people from suing under the law, which delegates enforcement power to private plaintiffs rather than state officials. That design is meant to prevent people from suing those officials, shielding the law from judicial review.
“The state is not directing the activity of these private individuals,” Mitchell said. “The state has passed a law that gives them the option to sue, and then it has washed its hands of the matter.”
Sotomayor pushed back against that claim, suggesting that private individuals who bring suits under the law may be acting for a state in the same way a prosecutor does.
“We have recognized that ‘washing your hands' doesn't insulate a state, or insulate people from acting on behalf of a state,” she said.
After the U.S. Justice Department sued Texas to overturn the law, Mitchell won permission to intervene in the case on behalf of those who may want to enforce the statute. A former Texas solicitor general, he worked mostly in obscurity until this year, when the law turned him into one one of the most prominent figures in the legal battle over abortion.
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