Bench Memos

Law & the Courts

Overbroad Protective Order Conceals Important Evidence in Louisiana Abortion Case

In March, the Supreme Court will hear oral argument in June Medical Services v. Gee. In that case, the Court has granted both the petition of abortion providers challenging a Louisiana law on hospital admitting privileges and the state of Louisiana’s cross-petition challenging the proposition that the abortion providers have “third-party standing” to represent their patients’ interests. As the cross-petition explains, this proposition deviates from the third-party standing rules that apply to everyone else.

An opinion last week by Fifth Circuit judge Jennifer Elrod (at pp. 3-10 here) indicates that a “remarkably overbroad” protective order entered by the district judge in a related case would prevent the state of Louisiana from presenting evidence to the Supreme Court that is “directly relevant” to the question whether abortion providers adequately represent the interests of their patients. As Judge Elrod discusses, one document subject to the protective order is the deposition of plaintiff-physician Doe 2:

According to Louisiana, Doe 2 testified during his deposition that another Louisiana abortion provider, Doe 5, violates the standard of care for second-trimester abortions. Doe 2 also testified that the standard of care for second-trimester abortions is dilation and evacuation. Yet Doe 2 also testified that Doe 5 performed induction abortions through 19 weeks of gestation. Louisiana points out that Doe 2 testified that a 19-week fetus delivered intact “can show signs of the heartbeat and rudimentary movements” and that Doe 2 had personally experienced a live birth between 14 and 15 weeks. Doe 2 stated that with the labor induction method, such live births are “certainly a possibility.” A licensed physician violating the standard of care is directly relevant to whether that physician adequately represents the interests of his or her patients. That question is relevant to [Louisiana’s] challenge to third-party standing in June Med. Servs. L.L.C. v. Gee, a case involving many of these same parties, currently before the Supreme Court. Yet [Louisiana] is unable to submit this deposition to the Supreme Court in June [Med. Servs.] because of the district court’s protective order in this case. [Emphasis added; citations simplified.]

Further, that deposition may also shed important light on Doe 2’s own fitness to represent the interests of his patients:

Louisiana also argues that the same deposition may provide support for the proposition that Doe 2 committed crimes in connection with his abortion practice. According to Louisiana, in one incident, Doe 2 may have failed to report the forcible rape of a fourteen-year-old girl. Cf. La. Stat. Ann. § 14:403 (requiring mandatory reporters to report sexual abuse of a minor). In another, Louisiana proffers that Doe 2 may have knowingly performed an abortion on a minor without parental consent or judicial bypass. Cf. La. Stat. Ann. § 40:1061.14. Louisiana also contends that Doe 2 may also have failed to maintain medical records, in violation of state law. Cf. La. Stat. Ann. § 40:1061.19.

Most Popular

Film & TV

Knives Out Takes On the Anti-Immigration Crowd

Since the beginning of the Obama era, the Left has broadcast two contradictory messages on the subjects of race and immigration. The first is that a so-called Coalition of the Ascendant will inevitably displace white Americans as the dominant force in the country’s politics and culture. The second is that ... Read More
Film & TV

Knives Out Takes On the Anti-Immigration Crowd

Since the beginning of the Obama era, the Left has broadcast two contradictory messages on the subjects of race and immigration. The first is that a so-called Coalition of the Ascendant will inevitably displace white Americans as the dominant force in the country’s politics and culture. The second is that ... Read More
From left: Harvard University's Noah Feldman, Stanford University's Pamela Karlan, University of North Carolina's Michael Gerhardt, and George Washington University's Jonathan Turley testify before the House Judiciary Committee hearing on the impeachment inquiry into President Donald Trump, December 4, 2019.

The Impeachment Eye Test

To put it mildly, the 1960s were not notorious for juridical modesty. They might compare favorably, though, to Wednesday’s episode of “The Lawyer Left Does Impeachment” at the House Judiciary Committee. Oh, I have no doubt that the three progressive constitutional scholars spotlighted by Democrats yearn in ... Read More
From left: Harvard University's Noah Feldman, Stanford University's Pamela Karlan, University of North Carolina's Michael Gerhardt, and George Washington University's Jonathan Turley testify before the House Judiciary Committee hearing on the impeachment inquiry into President Donald Trump, December 4, 2019.

The Impeachment Eye Test

To put it mildly, the 1960s were not notorious for juridical modesty. They might compare favorably, though, to Wednesday’s episode of “The Lawyer Left Does Impeachment” at the House Judiciary Committee. Oh, I have no doubt that the three progressive constitutional scholars spotlighted by Democrats yearn in ... Read More
Culture

The Absurd Crusade against the Salvation Army

We all know some individuals who are so obviously good and kind that we are certain if anyone were to dislike them, that's all we would need to know about the person. We would immediately assume he or she is a bad person. To hate the manifestly good is a sure sign of being bad. Such is the case regarding the ... Read More
Culture

The Absurd Crusade against the Salvation Army

We all know some individuals who are so obviously good and kind that we are certain if anyone were to dislike them, that's all we would need to know about the person. We would immediately assume he or she is a bad person. To hate the manifestly good is a sure sign of being bad. Such is the case regarding the ... Read More
Elections

It’s Not Because She’s a Woman

In early October, Elizabeth Warren hit her stride. Her stock in the Democratic primary had been climbing steadily since midsummer, and as Joe Biden continued to lag, the Massachusetts senator became the first presidential hopeful to overtake him as front-runner in the RealClearPolitics polling average. She’s ... Read More
Elections

It’s Not Because She’s a Woman

In early October, Elizabeth Warren hit her stride. Her stock in the Democratic primary had been climbing steadily since midsummer, and as Joe Biden continued to lag, the Massachusetts senator became the first presidential hopeful to overtake him as front-runner in the RealClearPolitics polling average. She’s ... Read More
Film & TV

Clint Eastwood’s Messy, Nuanced Triumph

After a pipe bomb exploded at a concert held to celebrate the 1996 Olympics in Atlanta’s Centennial Park, the FBI came to suspect that the security guard who discovered the device might have planted it to gain a reputation as a hero. The knotty story of that security guard, Richard Jewell, does not lend itself ... Read More
Film & TV

Clint Eastwood’s Messy, Nuanced Triumph

After a pipe bomb exploded at a concert held to celebrate the 1996 Olympics in Atlanta’s Centennial Park, the FBI came to suspect that the security guard who discovered the device might have planted it to gain a reputation as a hero. The knotty story of that security guard, Richard Jewell, does not lend itself ... Read More
Elections

More Bad News for Medicare for All

The hits keep coming for Medicare for All. Gallup’s annual health-care survey of adults found that Americans back a system based on private insurance rather than government provision by 54 percent to 42 percent. “This could create a challenge in a general election campaign for a Democratic presidential ... Read More
Elections

More Bad News for Medicare for All

The hits keep coming for Medicare for All. Gallup’s annual health-care survey of adults found that Americans back a system based on private insurance rather than government provision by 54 percent to 42 percent. “This could create a challenge in a general election campaign for a Democratic presidential ... Read More