“The Texas Abortion Emergency”: This Isn’t Complicated, Women Are Paying An Unconstitutional Price
Outside the chambers of federal appellate judges Priscilla Owen, Jennifer Elrod, and Catharina Haynes, virtually everyone understands that H.B. 2, the new Texas law that places various restrictions on a woman’s ability to obtain an abortion, is not about protecting women’s health — it’s about stopping abortion.
And yet on Friday, those three judges, who sit on the U.S. Court of Appeals for the Fifth Circuit in New Orleans, ruled that the law could go into effect, since it was “not designed to strike at the right itself,” and wasn’t invalid simply because it “has the incidental effect of making it more difficult or more expensive to procure an abortion.”
That ruling led to the immediate closure of one-third of clinics in Texas where abortions are performed — several in rural areas that serve women without the means to travel hundreds of miles to another clinic.
On Monday morning, Supreme Court Justice Antonin Scalia allowed the charade to continue for at least another week when he declined to grant an emergency request by the law’s challengers to stay the appeals court’s ruling, and ordered the state to file a response by Nov. 12. (Justice Scalia hears all emergency-stay applications out of the Fifth Circuit.)
The law requires, among other things, a doctor to have admitting privileges at a hospital no more than 30 miles from where he or she performs abortions. On Oct. 28, U.S. District judge Lee Yeakel ruled that this provision was “without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
The state appealed immediately, and on Friday, the Fifth Circuit panel issued its stay of Judge Yeakel’s ruling.
But no matter what the panel says, the law is intended precisely to “strike at the right itself” — only dishonest politicians pretend otherwise. Making it harder for women to get an abortion is not an “incidental effect” of the law; it is its primary goal.
Consider the words of Texas solicitor general Jonathan Mitchell, who claimed during the trial before Judge Yeakel that the state has a vested interest in “protecting the life of the unborn child,” and thus may impose “inconveniences on women seeking abortion in hopes that it may lead women considering abortion to consider childbirth instead.”
Like similar laws popping up all over the country, H.B. 2 is cloaked in the guise of protecting women’s health only because anti-abortion activists know it’s their best shot of surviving judicial scrutiny.
This shouldn’t be complicated. On one side is a law of dubious constitutionality passed by legislators who openly admit their desire to end all abortions. On the other side are real women whose constitutional right to have an abortion is being effectively blocked.
The arguments of all sides have been on the table for months, which is why Texas was able to file its appeal within hours of the district court’s ruling. Now the state has at least another week, while Texas women pay the price.
By: Jess Wegman, The Opinion Pages, The New York Times November 4, 2013
“Contempt For Progressive Legislation”: The Severely Conservative Judge Who Just Ruled Against Birth Control
Nine years ago, the California Supreme Court upheld a state law similar to the Affordable Care Act’s rules requiring most employers to include birth control coverage in their employee health plans. The sole dissent in that case was Justice Janice Rogers Brown. Nearly a decade later, Brown got her revenge. Though no longer a member of California’s highest court — President George W. Bush appointed her to the United States Court of Appeals for the District of Columbia Circuit over the strenuous objections of Democrats — Judge Brown is now the author of a 2-1 opinion holding that religious employers can ignore the federal birth control rules. What was once a fringe view held by a lone holdout is now the law in the second most powerful court in the country.
Judge Brown’s opinion barely conceals her contempt for progressive legislation. Prior to her nomination to the D.C. Circuit, Brown labeled the New Deal a “socialist revolution,” and she likened Social Security to a kind of intergenerational cannibalism — “[t]oday’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much ‘free’ stuff as the political system will permit them to extract.” Since joining the federal bench, she authored a concurring opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect. The very first sentence of her birth control opinion labels the Affordable Care Act a “behemoth.”
So there was never any doubt how Brown would vote on this particular challenge to women’s access to birth control. Her opinion was joined by Judge A. Raymond Randolph, a conservative George H.W. Bush appointee. Carter-appointed Judge Harry Edwards dissented.
Coincidentally, Brown’s opinion comes just one day after Senate Republicans reignited the filibuster wars by filibustering the first of three Obama nominees to her court. Currently, the D.C. Circuit is evenly divided between Democratic and Republican active judges, but a large number of Republican judges in partial retirement allow the GOP to dominate the court. Senate Minority Whip John Cornyn wrote in a Fox News op-ed that Republicans should prevent any of Obama’s nominees from being confirmed to this court to prevent Democrats from gaining a majority. Although federal appeals courts typically hear cases via randomly drawn three-judge panels, the court’s rules permit a majority of the court’s active judges to displace any decision reached by a three-judge panel.
Senate Democrats waged an unsuccessful effort to filibuster Judge Brown’s nomination during the Bush Administration — largely because of her strident opposition to programs such as Social Security — but that filibuster was eventually defeated after Republicans threatened to invoke the so-called “nuclear option” to eliminate filibusters of judicial nominees. The deal that allowed Judge Brown to be confirmed also paved the way for Judge Priscilla Owen’s nomination. Yesterday evening, Judge Owen authored an opinion reinstating a Texas anti-abortion law blocked by a lower court judge.
There is a lesson here for Democrats trying to decide whether to invoke the nuclear opinion in the D.C. Circuit fight that Senate Republicans started this week. When Republicans had the courage to demand what they wanted and put a serious threat behind it, they got two of the most conservative judges in the country. If Senate Democrats follow suit — either by forcing Republicans to cave or by carrying through on a threat to nuke the filibuster — they will also win their fight to get President Obama’s nominees confirmed.
By: Ian Millhiser, Think Progress, November 1, 2013
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