By Ian Millhiser, ThinkProgress
While many women in Texas were sitting down to dinner, a federal appeals court in Texas drastically reduced their access to reproductive health. In the process, the Court practically begged the Supreme Court to take the case and to narrow abortion rights nationwide. Two judges who are particularly hostile to abortion are responsible for Thursday’s decision limiting abortion rights in Texas. And, it is clear from a single paragraph of their opinion that they are very confident the Supreme Court will take their side if the justices agree to to hear this case.
On Thursday evening, a conservative panel of the United States Court of Appeals for the Fifth Circuit surprised no one who has paid attention to their abortion decisions by reinstating much of a Texas law restricting access to abortion in that state. The Fifth Circuit is one of the most conservative federal courts in the country, and it includes several judges who are particularly unfriendly to pro-choice arguments. Two of those judges, Jerry Smith and Jennifer Walker Elrod, were on the three-judge panel that handed down Thursday’s decision.
As Tara Culp-Ressler notes, women in Texas are now “waking up to learn that the number of health care facilities in their communities has been drastically reduced overnight.” Before the Texas law took effect, the state had 40 licensed abortion clinics. Now there are eight, a result that was predicted by the trial judge whose opinion the Fifth Circuit overruled on Thursday.
Judge Elrod’s opinion for the court builds upon a prior Fifth Circuit decision holding that forcing some women to travel 150 miles to obtain an abortion is not an “undue burden” on their right to choose. It places an unusually high burden on plaintiffs seeking to bring what are known as “facial challenges” — lawsuits claiming that a law should be effectively removed from the books — in abortion cases. And it rejects the trial judge’s conclusion that the Texas law should be struck down because it does virtually nothing to advance women’s health — or much at all, for that matter, besides make abortions harder to obtain. “In our circuit,” Judge Elrod writes, “we do not balance the wisdom or effectiveness of a law against the burdens the law imposes.”
Nevertheless, the single most ominous paragraph of the opinion, at least for people who care about reproductive freedom, is this one:
Plaintiffs argue that the district court’s balancing approach is used by other circuits. We agree with Plaintiffs that some circuits have used the balancing test to enjoin abortion regulations; other circuits—including ours—have not. Compare Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 914 (9th Cir. 2014), and Planned Parenthood of Wisc., Inc. v. Van Hollen, 738 F.3d 786, 791–99 (7th Cir. 2013), with Abbott II, 748 F.3d at 593–94, 597, Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 515 (6th Cir. 2012), Greenville Women’s Clinic v. Bryant, 222 F.3d 157 (4th Cir. 2000), and Women’s Health Center of W. Cnty., Inc. v. Webster, 871 F.2d 1377 (8th Cir. 1989). We are bound to follow our circuit’s approach.
See that long list of case names and legal citations? That’s what’s known as a “circuit split.” The conservative Fifth Circuit is actually calling attention to the fact that their approach to abortion cases is at odds with the way other federal courts of appeals handle similar cases.
The reason why this is significant is that the Supreme Court is particularly likely to hear a case when “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.” Though it is common for a federal appeals court to explain why they are not following the rule in a another circuit when one of the parties has asked them to do so, Judge Elrod’s lengthy citation — which includes one case that was decided three years before the Supreme Court built the backbone of current abortion jurisprudence in Planned Parenthood v. Casey — is an unusually ostentatious and gratuitous effort to highlight the fact her own decision is “in conflict with the decision of another United States court of appeals on the same important matter.” If anything, Elrod is exaggerating the extent to which judges deciding abortion cases disagree with each other.
That’s a very strange tactic for a judge to take unless they are eager to have their opinion reviewed by the justices, and quite confident that their decision will be affirmed if it is reviewed by a higher authority. By calling attention to disagreement among circuit court judges regarding the proper way to resolve abortion cases, Elrod sent a blood-red howler to the Supreme Court telling them to “TAKE THIS CASE!”
Elrod, it should be noted, is not wrong to be confident her decision will be affirmed if it is heard by the justices. Justice Anthony Kennedy, the closest thing the Supreme Court has to a swing vote on abortion, hasn’t cast a pro-choice vote since 1992. As a justice, Kennedy’s considered 21 different abortion restrictions and upheld 20 of them.