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The Fifth Circuit sticks the shiv the rest of the way in

The worst court in the country does its thing again.

Right there with them

A New Orleans-based federal appeals court will, for now, allow Texas to enforce a ban on almost all abortions as the state battles the coronavirus pandemic.

Overturning the decision of a lower court, a three-judge panel on the politically conservative U.S. 5th Circuit Court of Appeals ruled Tuesday that the state may continue to prohibit all abortions except those for patients whose pregnancies threaten their lives or health — a restriction GOP state officials have insisted is necessary for preserving scarce hospital resources for COVID-19 patients.

Citing precedent from the U.S. Supreme Court, U.S. Circuit Judge Kyle Duncan, an appointee of President Donald Trump, wrote that “individual rights secured by the Constitution do not disappear during a public health crisis, but … Rights could be reasonably restricted during those times.”

“When faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law,’” he wrote.

U.S. Circuit Judge James Dennis, appointed to the court by Bill Clinton, dissented.

Abortion providers have characterized the state’s lawsuit as political opportunism. Most abortions do not take place in hospitals, and according to providers, they generally do not require extensive personal protective equipment, like the masks and gloves in short supply for doctors and nurses fighting COVID-19.


Duncan said Yeakel was wrong to characterize Abbott’s order as an outright ban on abortions.

“Properly understood,” he wrote, the executive order is a “temporary postponement” of many procedures, like colonoscopies.

But Texas bans abortions after 20 weeks, meaning prohibiting the procedure for any length of time leaves many patients unable to terminate their pregnancies at all. Abbott’s order is set to expire April 21 but can be extended.

The case now heads back to federal court in Austin, where a hearing is scheduled next week. The 5th Circuit had already paused Yeakel’s order blocking the ban, but Tuesday’s opinion threw it out entirely.

Further litigation is all but guaranteed. States including Ohio, Oklahoma and Alabama have imposed bans similar to Texas’, and similar lawsuits are playing out across the country.

See here for the background. I don’t know why there’s any pretense that the Fifth Circuit is an unbiased arbiter of the law. They rubber-stamp these appeals on the flimsiest of pretexts. I don’t know if they honestly believe there’s no difference between an abortion and a colonoscopy or if they just think we’re too stupid to understand the difference. The sheer arrogance of it is breathtaking. If Democrats manage to beat Trump and take the Senate in November, I’d be in favor of appointing about a hundred new judges to this court, to ensure as best as possible there’s never another Republican majority on any three-judge panel. This crap cannot continue.

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  1. Jason Hochman says:

    Fascinating that the courts uphold this, as precedent says that abortion is constitutional. I see no reason why Trump won’t declare himself Leader Forever. The constitution no longer applies, governments can make laws suspending peaceful assembly, ordering business to shut down, ordering curfews, and other diktats. What is to stop the president from declaring that there will be no elections ever.

  2. Joel says:

    “The constitution no longer applies, governments can make laws suspending peaceful assembly, ordering business to shut down, ordering curfews, and other diktats.”

    i explained this to you already.

  3. Jason Hochman says:

    Joel, you explained this:
    ALL rights are subject to balancing, often for reasons of public safety. that’s what the supreme court does. how can you not have noticed? pretending that the founders didn’t expect it to be this way is just imaginary thinking.

    pick one, and there is case law about it. for example, you mention freedom of assembly, so i went and googled this for you:

    ‘No First Amendment rights are absolute, but the right to gather is the only one that includes the most important limit in the actual words of the amendment: “the right of the people peaceably to assemble.” That means law enforcement may break up any gathering that has turned violent or raises a “clear and present danger” of violence or disorder (Cantwell v. Connecticut, 310 U.S. 296 (1940)).’

    So, in your example, law enforcement can stop a gathering that has turned violent. Well, now they can tell you not to have a Non violent gathering.

    The second amendment has limit, too. It says a “well regulated militia.” This implies some gun control is allowed, but it stops short of taking away all guns.

    You further stated “that’s what the supreme court does.” Has anyone taken any of these diktats to the supreme court? If so, how did the court rule on them?

    What will the court say when they decide that in the interest of public safety, the election is cancelled indefinitely?

  4. […] here for the last update. If you’re feeling a little whiplashed, I understand. I also caution you […]

  5. C.L. says:

    Thumbs up, Jason.