Tuesday, May 01, 2012

Lone Star Chutzpah

Meanwhile, deep in the heart of Texas, this happened yesterday:

A federal judge in Austin ruled Monday that Texas officials cannot exclude Planned Parenthood from a health care and contraception program for low-income women.
 That ruling was based on constitutional issues and:
 "The court is particularly influenced by the potential for immediate loss of access to necessary medical services by several thousand Texas women," Yeakel wrote in his ruling. "The record before the court at this juncture reflects uncertainty as to the continued viability of the Texas Women's Health Program."
 That is not an insignificant point:

The Women’s Health Program, which receives 90 percent of its funding from the federal government, provides about 130,000 women a year with contraceptive care and potentially life-saving screenings for a wide range of conditions, including sexually transmitted infections, high blood pressure, cancer and diabetes.
But the state's response was that:

 “Texas — and the women of Texas who depend on the Women’s Health Program — will be irreparably harmed because state law prohibits Texas from continuing to operate the (program) if taxpayer money must be provided to entities that affiliate with abortion-promoting entities.”
“Consequently, the district court’s preliminary injunction effectively forces Texas to choose between contravening state law and shutting down the program,” Abbott told the appeals court.
Which was enough for Jerry Smith of the Fifth Circuit Court of Appeals, who issued an order staying the preliminary injunction.  And yes, that Jerry Smith:  the one who demanded the Justice Department explain the President's comments about a case pending before the Supreme Court.  He has a history with this kind of thing:
Smith was also on the three-judge panel that upheld the Texas pre-abortion sonogram law in January, overruling constitutional objections raised by U.S. District Judge Sam Sparks. That panel made the unusual move of retaining control of the sonogram case so it could ensure that Sparks followed its guidance.
Planned Parenthood points out:

 "For many women, we are the only doctor’s visit they will have this year," said Cecile Richards, president of Planned Parenthood Federation of America.
So the Attorney General's concern for the ability of the state to provide healthcare to women is all so much eyewash.  As Judge Yeakel pointed out, this new law demolishes funding for women's healthcare in Texas.

Not that I would expect Jerry Smith to let things like fact and reason get in his way.

An update:

ThinkProgress has an excellent analysis of the legal issues here, and points me to the relevant rule, which reads (as the lawyers say) in pertinent part:

(2) Motion in the Court of Appeals; Conditions on Relief. A motion for the relief mentioned in Rule 8(a)(1) may be made to the court of appeals or to one of its judges.
(A) The motion must:
(i) show that moving first in the district court would be impracticable; or
(ii) state that, a motion having been made, the district court denied the motion or failed to afford the relief requested and state any reasons given by the district court for its action.

Judge Smith's action comes less than 24 hours after the original order and, as ThinkProgress points out, Judge Yeakel is due some consideration simply as a fellow judge.  Obviously the State of Texas didn't have time to move for reconsideration and have that motion denied, so they made a showing that such a motion would be impracticable.  On what grounds, is the first question.

The second is:  why does Judge Smith think he alone needs to decide this case?  What is extraordinary here, and what time requirements make this kind of extraordinary action necessary?  As TP points out, Judge Smith's order is silent on these very important points.

Burnt Orange Report tells me Planned Parenthood has until 5 p.m. to make an argument for the injunction to Judge Smith.  I'm not an expert on Federal appellate procedure, but I don't see anything in Rule 8 that blocks them from demanding a rehearing by at least a three judge panel after Judge Smith issues his ruling (which I feel safe to say is a foregone conclusion), and after that, a hearing en banc by the entire 9 judge panel.

Unless the entire 5th Circuit wants to disgrace the judiciary in ways we haven't seen since Bush v. Gore.  And sadly, they may well be happy to do that. 

Further update:  This is what the Attorney General said to get Judge Smith's undivided attention:

"Planned Parenthood does not provide any assurance that the tax subsidies it receives from the Women’s Health Program have not been used directly or indirectly to subsidize its advocacy of elective abortion," Abbott wrote in his motion to stay the injunction. "Nor is it possible for Planned Parenthood to provide this assurance."

"Money is fungible, and taxpayer subsidies -- even if 'earmarked' for nonabortion activities -- free up other resources for Planned Parenthood to spend on its mission to promote elective abortions ... (because '[m]oney is fungible,' First Amendment does not prohibit application of federal material-support statute to individuals who give money to 'humanitarian' activities performed by terrorist organizations)."

And within two hours of the District Court's opinion, which ran to 24 pages, Judge Smith vacates it (effectively) with one sentence and no explanation for using the extraordinary remedy allowed for by Rule 8.

Too bad it takes impeachment to get a Federal judge off the bench.

1 comment:

  1. Off topic: but this is too absurd to not see.