Diary

The Texas Abortion Law Ruling and Kennedy's Abdication

Subtitle: I Could Use Other Words to Describe Anthony Kennedy, But They Would Never Be Published

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Above: images from Gosnell’s “house of horrors.”  Sorry for the depictions of reality.

On Monday, the Supreme Court wrapped up the 2015-16 term.  The most controversial case left was Women’s Whole Health vs. Hellerstedt, a case out of Texas challenging that state’s abortion regulations, specifically two sections.  The first section involved admitting privileges at hospitals within a 30-mile radius of an abortion provider, and the requirement that abortion clinics be raised to the standards of ambulatory surgical care clinics.

The law was passed largely in response to the factory of horrors in Philadelphia and Kermit Gosnell.  In effect, Texas wanted to make sure such things did not happen in their state.  If one remembers, the law started with the much ballyhooed filibuster by the Texas Abortion Barbie, Wendy Davis, which she parlayed into a humiliating gubernatorial defeat.  Then Governor Rick Perry called the legislature back into session and eventually signed the bill into law.

A day before the admitting privileges aspect was to go into effect, a federal judge in Austin blocked its implementation.  Upon appeal to the 5th Circuit, they allowed the law to go into effect while the state appealed the lower court ruling.  After the law went into effect, twelve abortion clinics closed in the ensuing months.  Now it gets tricky because the Appeals Court then ruled in favor of Texas regarding the admitting privileges.

A second lawsuit was filed against Texas this time arguing that the surgical center requirements were unconstitutional.  This second lawsuit also reopened the admitting privileges requirement argument.  After a 5-day trial in Austin, the judge struck down both provisions ruling that combined they created an undue burden a woman’s right to an abortion.  Texas again appealed to the 5th Circuit who lifted the injunction and allowed Texas to enforce the law, except with respect to two clinics.  On emergency appeal to the Supreme Court, they blocked the state from enforcing the surgical center requirements.  On March 2nd, the Court heard oral argument in the case.

By a 5-3 decision, the Supreme Court struck down both the admitting privileges and the surgical center aspects of the law arguing that they created an undue burden on a woman’s right to an abortion.  There are four key things to understand with this decision.

The first is the fact that abortion providers- not women seeking an abortion- were the plaintiffs in these cases.  Admittedly, they were the ones about to or actually did suffer a “harm” under the law.  But we are talking about constitutional rights, and now there is apparently a constitutional right to be an abortion provider free and clear of sensible state regulation.  It should be noted that in the constitutional challenge, no women stepped forward and claimed the law affected their ability to get an abortion.

Second, once a case is litigated, unless the Supreme Court accepts review or denies review, that is usually it- the litigation stops there.  In the second lawsuit, the District Court allowed the admitting privileges provision to be re-litigated even though the lawsuit was about the surgical care center provisions.  In the opinion of many legal scholars, the District Court erred.  The Supreme Court whisked away those arguments with the brush of a pen.

Third, the decision was 5-3.  Had Scalia been alive to rule in this case, it would have been 5-4, so his absence made no difference whatsoever other than he would have likely written a colorful and powerful dissent (the dissent was left to Alito and Thomas).  As the senior Justice in the majority, Kennedy is responsible for assigning the writing of the opinion.  In monumental cases like this (the first abortion case in a decade), since Kennedy relishes his role as the “swing vote,” he would assign the opinion to himself.  But he didn’t and instead assigned it to Breyer.  Why?

I believe there are two reasons.  First, the case was heard relatively late in the term (March 2nd) and it takes Kennedy an average of 121 days to write a majority opinion… that’s 4 months!  Some argue that he gets the more complicated cases.  But that is not true.  Over the past 11 terms, Kennedy and Ginsburg have written the same number of majority opinions, but it takes Ginsburg an average of 78 days to fashion an opinion.  The reason is that especially of late, Kennedy is pulling constitutional principles out of his ass and he has to grasp at tenuous legal arguments to support those opinions.  Sometimes, it drifts into poetry, not constitutional law, as the Obergfell gay marriage case proved.

The second reason is that for Kennedy to write such a monumental decision would have meant going back on some previous written words over the issue of abortion.  However, if one looks neutrally at his words in abortion cases, he is not that great of a pro-life Justice.  Still, as Alito’s dissent points out, this decision contradicts the many cited words of Kennedy in the past on the issue.  In effect, Kennedy’s hypocrisy and lack of grounding in constitutional principle is hiding behind the skirt of Breyer’s opinion.

Another factor is the reason for the law.  As stated, Texas passed the law in response to the Kermit Gosnell story working on the theorem that an ounce of prevention is worth a pound of cure.  The majority opinion goes out of its way to cite statistical evidence showing how safe abortion is in Texas without the law.  All it takes is one Gosnell to refute that entire line of reasoning.   Obviously, to the Left an ounce of prevention being worth a pound of cure is just fine when talking about gun control, but not abortion (Note: Thomas and Alito noted the different standards when it comes to abortion cases).  

Finally, some fault has to lie with the state of Texas for not thinking this one through.  During oral argument, they conceded they cannot cite one instance where, for example, having hospital admitting privileges would have prevented a medical emergency.  And regarding that issue, perhaps they should have grandfathered in some existing facilities, but not new ones.  The 30-mile radius requirement for hospital admitting privileges by abortion providers led to the closure of many of these clinics.  Perhaps expanding that range, or regulating hospitals to require admitting privileges would have thwarted challenges to the law.  But then again…what’s next?  The requirement that there be an abortion provider every X amount of miles to make sure a tenuous constitutional right is protected?

However, one cannot overlook the fact that Kennedy siding with the liberal wing of the Court and coupled with his confusing and contradictory opinion in the Fisher affirmative action case upholding the University of Texas’ use of affirmative action in their admission procedures, should give many conservatives pause and consider what is at stake in this year’s presidential election.  Anthony Kennedy is proving himself to be more a liberal ally than a conservative one in many controversial cases.  Even though I disagree with Ginsburg and Breyer (he’s a blow hard and current case excepted) on most opinions, you have to somewhat respect their opinions from a legal standpoint.  If Kennedy jumps to the liberal wing, he should be well-reminded that there are two better people in front of him to write somewhat coherent opinions.