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HB2 is about overturning Roe v Wade

A cheery thought from Think Progress.

Nevertheless, the single most ominous paragraph of the opinion, at least for people who care about reproductive freedom, is this one:

Plaintiffs argue that the district court’s balancing approach is used by other circuits. We agree with Plaintiffs that some circuits have used the balancing test to enjoin abortion regulations; other circuits—including ours—have not. Compare Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 914 (9th Cir. 2014), and Planned Parenthood of Wisc., Inc. v. Van Hollen, 738 F.3d 786, 791–99 (7th Cir. 2013), with Abbott II, 748 F.3d at 593–94, 597, Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 515 (6th Cir. 2012), Greenville Women’s Clinic v. Bryant, 222 F.3d 157 (4th Cir. 2000), and Women’s Health Center of W. Cnty., Inc. v. Webster, 871 F.2d 1377 (8th Cir. 1989). We are bound to follow our circuit’s approach.

See that long list of case names and legal citations? That’s what’s known as a “circuit split.” The conservative Fifth Circuit is actually calling attention to the fact that their approach to abortion cases is at odds with the way other federal courts of appeals handle similar cases.

The reason why this is significant is that the Supreme Court is particularly likely to hear a case when “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.” Though it is common for a federal appeals court to explain why they are not following the rule in a another circuit when one of the parties has asked them to do so, Judge Elrod’s lengthy citation — which includes one case that was decided three years before the Supreme Court built the backbone of current abortion jurisprudence in Planned Parenthood v. Casey — is an unusually ostentatious and gratuitous effort to highlight the fact her own decision is “in conflict with the decision of another United States court of appeals on the same important matter.” If anything, Elrod is exaggerating the extent to which other judges disagree with her.

That’s a very strange tactic for a judge to take unless they are eager to have their opinion reviewed by the justices, and quite confident that their decision will be affirmed if it is reviewed by a higher authority. By calling attention to disagreement among circuit court judges regarding the proper way to resolve abortion cases, Elrod sent a blood-red howler to the Supreme Court telling them to “TAKE THIS CASE!”

Elrod, it should be noted, is not wrong to be confident her decision will be affirmed if it is heard by the justices. Justice Anthony Kennedy, the closest thing the Supreme Court has to a swing vote on abortion, hasn’t cast a pro-choice vote since 1992. As a justice, Kennedy’s considered 21 different abortion restrictions and upheld 20 of them.

Lovely thought, isn’t it? Elections, they have consequences. Unfair Park has more.

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One Comment

  1. PDiddie says:

    I’ve said it twice this week: In the next legislative session, Texas Republicans will introduce a bill outlawing abortion entirely. It will pass and be signed by Governor Abbott. And the next step after that is to go after the women who get abortions illegally, and the doctors and nurses who perform them, with a bill that makes a capital crime to perform an abortion in Texas.

    Oh, and hanging is the stated, preferred method of the death penalty.