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Bench Memos

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The Rare Easy Abortion Decision



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Even in an area of the law as hotly contested as abortion, there are some easy decisions. 

Yesterday the Court issued one.

Planned Parenthood had asked for a stay of the new Texas abortion regulations, to block their implementation while court challenges are being brought. They lost at the Fifth Circuit, which is almost all you need to know to predict that they weren’t going to get a stay at the Supreme Court.

The legal standard to receive a stay of implementation of a law is very high. You have to show (1) that you are likely to win on the merits, (2) that there is irreparable injury to the challenger absent a stay, (3) that there is not irreparable injury to the State if the law is stayed, and (4) that the public interest is on your side.

Of those factors one (the public interest) may be considered a toss-up in the abortion debate and, whatever the outcome, one side or the other can claim irreparable injury. 

But the first and most important factor – the likelihood of success on the merits – is a pretty easy win for Texas at the appellate level and a slam dunk at the Supreme Court. Yes, there’s a chance Planned Parenthood would win at the Supreme Court, but it’s far from a sure thing. There is no settled law on this particular type of regulation. And for a stay to be issued, you don’t have to just show that you have a chance of success, you have to show that you are likely to win. In the judgment of the Fifth Circuit, Planned Parenthood was not.

When reviewing an appellate decision on a question like this, the Supreme Court must uphold it unless the court below “clearly and demonstrably erred in the application of accepted standards,” to quote yesterday’s decision. Might the Court come to the conclusion that the Texas regulations violate the Constitution? Perhaps. Do the “accepted standards” mandate that conclusion? Not by a long shot. Do the “accepted standards” allow for the Fifth Circuit’s conclusion that states may constitutionally hold abortionists to the same medical standard as doctors who perform other similar procedures?  Absolutely.

Yesterday’s order doesn’t tell us nearly as much about those who voted to uphold the Fifth Circuit as it does about those who voted against it. There is lots of room for, say, a Justice Kennedy or Chief Justice Roberts to overturn the Texas laws and be perfectly consistent with the earlier order to deny stay. But the liberal justices were willing to ignore the settled legal standard to allow Planned Parenthood’s injury to trump all other factors — that says a lot about their willingness to elevate abortion above all other constitutional and legal principles.

There is much talk about “narrow” decisions and showing deference to legislatures, in what I believe is largely an attempt by liberals to gain the moral high ground in a country that has rejected the principles of activist, policy-driven judges once explicitly advocated in liberal circles. If they were honest, those advocates of narrow-as-the-new-black would be pleased to see a Supreme Court wary of prematurely deciding issues not before it, particularly when that would mean overruling a democratically enacted law. 

Yesterday’s decision wasn’t without losers, even those with irreparable injury, like the abortion clinics who will close in Texas because they cannot comply with the law’s new medical standards. But a judge’s decision is not to ask which side’s injuries it feels the most sympathy for. He or she must apply the law, even when that means upholding a regulation they would have voted against or turning away a case brought prematurely. That may not be “easy” in general, but it is easy as a matter of law.



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