Bench Memos

Law & the Courts

More Judicial Grandstanding

In an order yesterday (in Jackson Women’s Health Organization v. Currier), federal district judge Carlton W. Reeves entered a permanent injunction against a Mississippi law that prohibits abortions after 15 weeks of gestation. Reeves’s bottom-line ruling strikes me as a straightforward application of the Supreme Court’s existing (but deeply unsound) abortion regime, and I therefore do not take issue with it.

But Reeves’s opinion is flawed in two respects. First, he could not refrain from littering his opinion with various injudicious remarks. He contends, for example, that the Mississippi legislature’s professed interest in women’s health “is pure gaslighting” and that the law he is reviewing “is closer to the old Mississippi—the Mississippi bent on controlling women and minorities.” He similarly opines that “[t]he fact that men, myself included, are determining how women may choose to manage their reproductive health is a sad irony not lost on the Court.” And further:

As a man, who cannot get pregnant or seek an abortion, I can only imagine the anxiety and turmoil a woman might experience when she decides whether to terminate her pregnancy through an abortion. Respecting her autonomy demands that this statute be enjoined.

Reeves’s views are half-baked at best. Reeves seems not to have contemplated that many women in Mississippi supported the law that he enjoined, or that the legality of abortion is a matter susceptible to moral reasoning by men and women, or that a permissive abortion regime might well multiply the instances in which a woman experiences the “anxiety and turmoil” that he rightly deplores.

There are of course plenty of reasonable replies to these objections of mine. My limited point here is that Reeves marred and discredited his own ruling by his gratuitous editorializing.

The second defect in Reeves’s opinion is his sloppy conflation of the Constitution with Supreme Court decisions. Reeves asks at the outset whether the law “infringe[s] on the Fourteenth Amendment due process rights of women,” and he answers, “It does, unequivocally.” But the proposition that the law is “unequivocally” inconsistent with the Roe/Casey regime is very different from the proposition that it is “unequivocally” inconsistent with the Due Process Clause. It’s fine for Reeves, as a lower-court judge, to confine himself to the former question, but he shouldn’t confuse it with the latter.

Similarly, Reeves asserts that he “follows the commands of the Supreme Court and the dictates of the United States Constitution.” He thus obscures the reality that he will follow the “commands of the Supreme Court” whether or not those commands are faithful to the “dictates of the United States Constitution.”

Or at least Reeves will follow the Supreme Court’s commands when those commands lead to results he favors. Reeves, appointed by President Obama in 2010, was happy to get ahead of the Supreme Court when he ruled in 2014—in advance of the Court’s 2015 ruling in Obergefell v. Hodges (and contrary to the Court’s precedent in Baker v. Nelson)—that Mississippi’s definition of marriage violated the federal Constitution. And he didn’t pay much attention to the Court’s commands on standing when he ruled in 2016 that a Mississippi law protecting religious liberty was unconstitutional. (A Fifth Circuit panel reversed him a year later on the ground that the plaintiffs lacked standing.)