Bench Memos

Law & the Courts

Judicial Winning: Kyle Duncan

S. Kyle Duncan showed the courage of his convictions throughout his pre-judicial career, perhaps most notably during his service as general counsel of the Becket Fund for Religious Liberty. His nomination to the Fifth Circuit was met by intense liberal opposition, and he was confirmed in 2018 by a margin of 50–47.

In In re Abbott, Judge Duncan twice confronted an activist judge’s attempt to carve out a special exception for abortion in the face of the pandemic.

The district court had issued a temporary restraining order (TRO) against the governor of Texas’ executive order postponing non-essential surgeries and procedures through April 21 to the extent it applied to abortion procedures. In a 2–1 panel decision, Duncan explained that the lower court “ignored the framework governing emergency public health measures” that the Supreme Court recognized over a century ago in Jacobson v. Massachusetts, and “nothing in the Supreme Court’s abortion cases suggests that abortion rights are somehow exempt from the Jacobson framework.”

That decision, handed down April 7, vacated the TRO, but two days later, the district court issued another one, which broadly specified several exceptions for abortion procedures. A flurry of litigation followed, and upon its return to the same Fifth Circuit panel, Judge Duncan issued an April 20 joint opinion with his colleague, Jennifer Elrod, asserting that the lower court “disregarded” its decision and overturning much of its second TRO.

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