I never thought I'd see the day I considered Lee Yeakel, a lawyer I always admired, mind you, a "liberal."
Thanks, 5th Circuit! If I see water running uphill and pigs flying today, I won't be surprised.
I had, and have, great respect for Lee's legal reasoning. It's just that we disagreed, a lot, on what the Supreme Court said, or should have said. He was never the champion of Roe that I was (am); and his argument made sense (the "penumbral" right of privacy is a hard one to defend without using Roe to defend it, which is bootstrapping of an interesting kind). Judges like Antonin Scalia and Priscilla Owen have now set legal reasoning aside in favor of doing the right thing as they see it. Needless to say, this presents problems. And it means the ruling of the 5th Circuit yesterday is worse than I thought it was.
Much of the reasoning in that order comes down to "we don't like the conclusion of the trial court, let's try to come up with one more to our liking." It's fair to say that's often the way of appellate decisions, but this one seems egregiously to be so. Here, for example, is a bit of legal reasoning:
An increase in travel distance of less than 150 miles for some women is not an undue burden on abortion rights.That particular piece of brilliant legal insight is based on Planned Parenthood v. Casey. The language of Casey is not cited, but pp. 885-887 of that opinion are cited to uphold the determination that the Texas law does not place an "undue burden" on the rights of Texas women. Here is the representative language from Casey:
Whether the mandatory 24-hour waiting period is nonetheless invalid because in practice it is a substantial obstacle to a woman's choice to terminate her pregnancy is a closer question. The findings of fact by the District Court indicate that because of the distances many women must travel to reach an abortion provider, the practical effect will often be a delay of much more than a day because the waiting period requires that a woman seeking an abortion make at least two visits to the doctor. The District Court also found that in many instances this will increase the exposure of women seeking abortions to "the harassment and hostility of antiabortion protestors demonstrating outside a clinic." 744 F. Supp., at 1351. As a result, the District Court found that for those women who have the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be "particularly burdensome." Id., at 1352.The analysis in Casey, in other words, is whether or not the burden imposed by state law "imposes a real health risk." The 5th Circuit reduces that analysis to: "Suck it up and take it. It won't kill you. Probably."
These findings are troubling in some respects, but they do not demonstrate that the waiting period constitutes an undue burden....as we have stated, under the undue burden standard a State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest. And while the waiting period does limit a physician's discretion, that is not, standing alone, a reason to invalidate it. In light of the construction given the statute's definition of medical emergency by the Court of Appeals, and the District Court's findings, we cannot say that the waiting period imposes a real health risk.
Charlie Pierce was right: this law was simply courtroom bait to get a case to the Supremes that would overturn Roe. Texas started this fight (Roe v. Wade came out of Texas long, long ago); I hope Texas doesn't finish it.