The conservative Texan lawyer who laid the groundwork for Senate Bill 8, or the Texas Heartbeat Act, has begun targeting access to PrEP (pre-exposure prophylaxis medications). The private attorney, Jonathan Mitchell, has a long history of defending right-wing religious positions including abortion access, anti-LGBTQ+ rights, anti-union and anti-affirmative action lawsuits.
Having previously argued in front of the Supreme Court four times defending Texas’ laws against same-sex marriage and abortion, Mitchell has urged the Court to not be hesitant about other rulings it might knock down. He argued that Obergefell vs Hodges and Lawrence vs Texas- the rulings that deemed bans of gay marriage and gay sex unconstitutional, were as lawless as abortion rights.
He spoke in favour of Mississippi’s 15-week abortion ban, the case that effectively ended the constitutional right to access abortion.
With the destabilising effects of Roe vs Wade dissolution, alongside the Supreme Court’s conservative majority, Mitchell’s previous suits are signalling a threat to LGBTQ+ rights. He has been previously vocal regarding his desire to dismantle decades of decisions he believes depart from the language used in the American Constitution or recognise constitutional rights that do not have a textual foundation, such as same-sex marriages.
In 2020, he defended a number of clients who objected to the Affordable Care Act’s mandate that insurance schemes provide access to PrEP drugs under their coverage. The federal case, Kelley v the United States of America, fought against this ruling citing religious restrictions.
The Court report reads, “[the clients] do not want or need health insurance that covers Truvada or PrEP drugs because neither they nor any of their family members are engaged in behaviour that transmits HIV.”
“[Defendents] also object to contraceptive coverage and the coverage of PrEP drugs on religious grounds. Each of these plaintiffs is a Christian, and they are unwilling to purchase health insurance that subsidises abortifacient contraception or PrEP drugs that encourage and facilitate homosexual behaviour.”
Arguing on behalf of his clients, Mitchell writes: “The PrEP mandate violates the Religious Freedom Restoration Act by forcing self-insured religious employers to underwrite coverage that violates their religious beliefs, and by making it impossible for religious individuals and employers to purchase health insurance that excludes this objectionable coverage.”
“The PrEP mandate forces religious employers to provide coverage for drugs that facilitate and encourage homosexual behaviour, prostitution, sexual promiscuity, and intravenous drug use.”
His attacks on the LGBTQ+ community are rooted deeper than his attempt at limiting access to PrEP. Mitchell has defended businesses who sought to fire LGBTQ+ employees and fought against the implementation of local protections for queer residents of Texas.
In a co-authored amicus brief with Adam Mortara, he furthers his position of defending the Constitution, stating “the right to marry an opposite-sex spouse is “deeply rooted in this Nation’s history and tradition; the right to marry a same-sex spouse obviously is not.” He calls the right to gay marriage “court-invented” to facilitate “homosexual behaviour and same-sex marriage.”
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