Courting Disaster

It seems that the Republicans are stuck with Donald Trump. In fact, new polling shows that a clear majority of Republicans prefer someone else to Trump – but there’s not much they can do about that now, and there’s no “someone else” anyway. And Hillary Clinton is surging in all the polls – and there’s not much they can do about that either. With nearly two-thirds of Americans saying that Trump is totally unqualified to be president things are looking a bit dismal – so one of their plans, to refuse to consider Obama’s bland and rather centrist nominee for the Supreme Court, to replace the suddenly late but exceedingly conservative Antonin Scalia, so their new president could appoint someone equally conservative, and equally nasty and sarcastic, isn’t likely to work out. Their position, that an eight member Supreme Court splitting down the middle on all issues would be harmless enough – for a while – hasn’t quite worked out either. A split court did mean that a lower court ruling, that Obama had no right to enforce immigration law the way he saw fit, stood. Obama lost, big time – but the Supreme Court didn’t split on Affirmative Action. They said it was just fine – it wasn’t overt racial discrimination against mediocre wealthy white college applicants. They lost that one. Racial discrimination against white folks simply isn’t a new national problem? What would they tell their constituents?

They had been playing with fire here, courting disaster, for those fond of puns, and now they’ve lost another one, a big one, maybe the biggest one. The New York Times’ Adam Liptak explains it all:

The Supreme Court on Monday reaffirmed and strengthened constitutional protections for abortion rights, striking down parts of a restrictive Texas law that could have drastically reduced the number of abortion clinics in the state, leaving them only in the largest metropolitan areas.

This reverses twenty-four years of conservative success:

The 5-to-3 decision was the court’s most sweeping statement on abortion since Planned Parenthood v. Casey in 1992, which reaffirmed the constitutional right to abortion established in 1973 in Roe v. Wade. It found that Texas’ restrictions – requiring doctors to have admitting privileges at nearby hospitals and clinics to meet the standards of ambulatory surgical centers – violated Casey’s prohibition on placing an “undue burden” on the ability to obtain an abortion.

If Casey limited the right established in Roe, allowing states to regulate abortion in ways Roe had barred, Monday’s decision effectively expanded that right. It means that similar requirements in other states are most likely also unconstitutional, and it imperils many other kinds of restrictions on abortion. It is also sure to energize anti-abortion forces and make abortion a central issue in the presidential campaign.

All their other plans – Oklahoma’s new law to revoke the medical license of any doctor who performs abortions, or refers a patient to a doctor who will perform abortions, and all the rest – can now be challenged. Republican lawmakers will have to prove those are not just clever ways to deny women a right that the Supreme Court long ago affirmed that women actually have. In this case, this was just another “oops” moment for Rick Perry:

The decision concerned two parts of a law that imposed strict requirements on abortion providers in Texas signed into law in July 2013 by Rick Perry, the governor at the time.

One required all clinics in the state to meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing. The other required doctors performing abortions to have admitting privileges at a nearby hospital.

“We conclude,” Justice Stephen G. Breyer wrote for the majority, “that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”

Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the majority opinion. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

Justice Kennedy’s vote was the crucial one, and it came as a relief to abortion rights groups, which have long viewed his thinking on the issue as a contradictory muddle.

Kennedy wasn’t muddled this time, and this was sweeping:

Many states have enacted restrictions in recent years that test the limits of the constitutional right to abortion, and the ruling in the new case, Whole Woman’s Health v. Hellerstedt, No. 15-274, enunciated principles that will apply to all of the ones said to be justified by a concern for women’s health. 

If you’re concerned for women’s health, prove it, and don’t hide like this:

Ken Paxton, Texas’ attorney general, said, “The court is becoming a default medical board for the nation, with no deference being given to state law.”

That’s sort of the problem here:

Last June, the United States Court of Appeals for the Fifth Circuit, in New Orleans, largely upheld the contested provisions of the Texas law, saying it had to accept lawmakers’ assertions about the health benefits of abortion restrictions. The appeals court ruled that the law, with minor exceptions, did not place an undue burden on the right to abortion.

Justice Breyer said the appeals court’s approach was at odds with the proper application of the undue-burden standard. The Casey decision, he said, “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”

Consider burdens and benefits together, at the same time? That didn’t sit well with the conservative justices:

In dissent, Justice Thomas said the majority opinion “reimagines the undue-burden standard,” creating a “benefits-and-burdens balancing test.” He said courts should resolve conflicting positions by deferring to legislatures.

“Today’s opinion,” Justice Thomas wrote, “does resemble Casey in one respect: After disregarding significant aspects of the court’s prior jurisprudence, the majority applies the undue-burden standard in a way that will surely mystify lower courts for years to come.”

That may not be the case:

The majority opinion considered whether the claimed benefits of the restrictions outweighed the burdens they placed on a constitutional right. Justice Breyer wrote that there was no evidence that the admitting-privileges requirement “would have helped even one woman obtain better treatment.”

The lawmakers had been making stuff up:

Justice Breyer wrote that the requirement that abortion clinics meet the demanding and elaborate standards for ambulatory surgical centers also did more harm than good.

“Abortions taking place in an abortion facility are safe – indeed, safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-center requirements,” he wrote, reviewing the evidence. “Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home.” 

Justice Thomas’ position was that it was fine if those lawmakers made it all up – that wasn’t the court’s business. Five other justices disagreed. Laws based on bullshit, laws that restrict rights, adding major burdens to the exercise of those rights, are bullshit. Balance the claimed benefit against the burden imposed. Justice Thomas said the court had never done that before. Five justices said it was about time to do that.

And meanwhile, elsewhere:

Mrs. Clinton – the presumptive Democratic nominee – seized on the court’s ruling to warn that Mr. Trump – her Republican opponent – poses a threat to women. She recalled his suggestion this year that abortion should be banned and that women who violate that ban should be penalized. She also said that with other states also seeking to restrict access to abortions and with Republicans seeking to defund Planned Parenthood, proponents of abortions rights could not afford to let up.

“We’ve seen a concerted, persistent attack on women’s health and rights at the federal level,” Mrs. Clinton said in a statement. “Meanwhile, Donald Trump has said women should be punished for having abortions.”

Mr. Trump has since retracted his assertion that women should be punished for having abortions, but the re-emergence of the issue is likely to put him on the defensive because of his previous support of abortion rights.

Mr. Trump made no direct public comments on Monday’s decision. 

What was he going to say? He’s been stung before. There was only this:

“Today’s disappointing decision is another reminder of what’s at stake in this election and why we can’t afford to let Hillary Clinton win,” Reince Priebus, the chairman of the Republican National Committee, said.

It may be too late for that, and the New Yorker’s Margaret Talbot adds this:

With its ruling today in the Texas abortion case Whole Woman’s Health v. Hellerstedt, the Supreme Court reinvigorated the “undue burden” standard, and with it the fundamental right to abortion. “Undue burden” is the test that courts have been using since 1992 to evaluate whether state laws on abortion are constitutional. In Planned Parenthood v. Casey that year, the Court declared, “An undue burden exists and therefore a provision of law is invalid if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”

As a bulwark protecting abortion rights, that language sounded fairly solid: the application of the purpose-or-effect test to abortion jurisprudence was one of the signal contributions of Sandra Day O’Connor, and it had the markings of her pragmatic approach.

In practice, though, the standard has been applied weakly and inconsistently. Even in Casey, the Court struck down only one provision of the Pennsylvania law in question: a requirement that a woman seeking an abortion notify her husband. The court did not deem any of the law’s other restrictive provisions – including counselling on the dangers of abortion, a twenty-four-hour waiting period, and parental permission for minors – unduly burdensome.

As my colleague Jeffrey Toobin noted, in 2014, “The key phrase did not have a fixed, self-evident definition. And as the Court moved to the right, following O’Connor’s resignation, the scope of the constraints on state power began shrinking.”

The “undue burden” standard was always a bit hazy. Why was a requirement that a woman seeking an abortion notify her husband any more of a burden than the others in Casey? What rules does a state, or the state, get to make up on the fly?

Linda Greenhouse wonders about that:

Someone landing from Mars on Monday and coming upon Justice Stephen G. Breyer’s majority Supreme Court opinion in the Texas abortion case would have had no hint of the decades-long battle over women’s right to abortion and the dogged efforts by states to put obstacles in their way.

There is no poetry in the 40-page opinion, which strikes down a Texas law that would have closed most abortion clinics in the state in the name of protecting women’s health. The dry, almost clinical tone could scarcely be more different from the meditative mood the Supreme Court struck the last time it stood up for abortion rights, in Planned Parenthood v. Casey, 24 years ago this week. “Liberty finds no refuge in a jurisprudence of doubt” was Justice Anthony M. Kennedy’s mysterious opening line in that opinion.

There was no mystery in what the five justices in the majority, crucially including Justice Kennedy, accomplished this time, or in the decision’s impact. By holding the state’s asserted rationale for its clinic-decimating regulations up to the light and finding it specious and counterproductive, the court has shut down one of abortion opponents’ main recent strategies: enacting “targeted regulation of abortion providers” laws that impose on doctors who perform abortions special restrictions not placed on doctors who do procedures of equal or greater risk.

Targeted regulation of abortion providers was the real issue here:

Justice Breyer was careful not to call out the Texas Legislature for placing a health-related veneer on laws whose true intent is to make access to abortion more difficult. Judges are extremely reluctant to accuse legislatures of acting in bad faith, and Justice Breyer didn’t have to do that. He simply had to show, carefully and methodically, the “virtual absence of any health benefit” from requiring doctors who provide abortions to obtain admitting privileges at local hospitals or requiring abortion clinics to retrofit themselves as mini-hospitals at huge cost.

Why does the absence of a health benefit matter? Because, as suggested in Casey and made explicit here, a court confronting a state-devised obstacle to abortion has to balance the burden the law imposes against the benefit it provides. Not the benefit the state claims for it – we’re only trying to protect women’s health, the Texas governor, Greg Abbott, and attorney general, Ken Paxton, avowed lamely on Monday – but the benefit the law actually conveys. In the decision, Whole Woman’s Health v. Hellerstedt, evidence-based medicine meets evidence-based law.

Greenhouse seems surprised that there was even an issue here:

The logic of the opinion is so clear as to seem self-evident; indeed, two of the three dissenters, Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr., didn’t even try to confront it, arguing instead and at length that the clinics’ appeal was flawed for procedural reasons. The Casey decision established the “undue burden” standard for judging abortion laws, and the word “undue” itself implies a comparison: undue as compared to what? The answer: An undue burden is one that outweighs a benefit.

But the almost laughably conservative United States Court of Appeals for the Fifth Circuit didn’t understand it that way in the decision that the Supreme Court overturned Monday. That court rebuked the district court judge, Lee Yeakel of Austin, Tex., an appointee of President George W. Bush, for having the nerve to insist on evidence for the state’s health-related claims. “In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes,” Judge Jennifer Walker Elrod wrote for the court. In an earlier phase of the case, another Fifth Circuit judge, Edith Jones, declared that the court would defer to the Legislature even if the law was based on “rational speculation unsupported by evidence or empirical data.”

That didn’t fly with this Supreme Court:

Those days are now over. The provisions of the Texas law, Justice Breyer concluded, “Vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women’s health capable of withstanding any meaningful scrutiny.”

And there’s more:

Although nearly one-third of American women will have an abortion in their lifetime, a goal of abortion opponents has been to carve out abortion practice from ordinary health care, to ghettoize and delegitimize it. Those days are now over, too. Singling out abortion for regulation that can’t be justified on medical grounds is unacceptable, as Justice Ruth Bader Ginsburg emphasized in a concurring opinion.

Greenhouse will settle for that:

When I first read Justice Breyer’s opinion, my sense of relief struggled against a feeling that something nonetheless was missing: not necessarily the aspirational rhetoric of the Casey decision but some explicit acknowledgment of what it means to women’s equality and dignity not to be trapped in an unwanted pregnancy.

Then I realized that while the court in Casey called upon “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” it didn’t really work out. Maybe, after all, this is not a moment for poetry, but for facts. There’s not much in Justice Breyer’s opinion that’s quotable. But there’s not much that’s debatable either, and that’s what matters.

There are soaring words. There is common sense. The latter will do for now, but Jeffrey Toobin – CNN’s senior legal analyst and author of The Oath: The Obama White House and the Supreme Court – is more interested in the puzzling Justice Kennedy:

Perhaps Anthony Kennedy sees the writing on the wall. Perhaps he recognizes that the Supreme Court is heading in a more liberal direction, and he intends to lead it there – as he has led the court so often in his extremely consequential nearly three decades as a justice.

That’s one possible explanation for Kennedy’s crucial pair of votes at the end of this year’s Supreme Court term. Last week, Kennedy wrote the court’s opinion in Fisher v. University of Texas at Austin, which preserved the right of universities to consider race as one factor in admissions.

Monday, Kennedy provided the winning margin to the court’s four liberals to strike down Texas’s strict regulations of abortion clinics and abortion providers, in Whole Woman’s Health v. Hellerstedt. To put it another way, in the space of week, Kennedy saved both affirmative action and abortion rights – an extraordinary liberal perfecta.

What makes Kennedy’s votes so striking is that he had often voted the other way – that is, with the court’s conservatives – on these very issues.

This is puzzling:

In 2003, the court heard a challenge to the admissions program at the University of Michigan law school, a case that bore considerable similarities to the one in Texas. In that case, Justice Sandra Day O’Connor’s opinion for the court upheld the Michigan plan in Grutter v. Bollinger, but Kennedy dissented.

In a similar vein, in 2007’s Gonzales v. Carhart, Kennedy wrote for the court in upholding the federal ban on so-called partial birth abortions. To be sure, the issues were not identical in these cases, but they were pretty close. Against abortion rights in Carhart – for those rights in Hellerstedt. Against affirmative action in Grutter – for the practice in Fisher.

And there’s this:

He led the conservative fight to deregulate American political campaigns in Citizen United and subsequent cases; he is also the architect and chief author of the gay civil rights revolution, which culminated in his opinion last year that guaranteed gay people the right to marry in all 50 states.

What’s with this guy? Toobin has a theory:

After the death of Antonin Scalia in February, the lineup of the Supreme Court included four consistent liberals – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. There are three consistent conservatives, Samuel Alito, Clarence Thomas and (most of the time) Chief Justice John Roberts. Kennedy usually votes with the conservatives, but not always.

President Obama has nominated Merrick Garland to replace Scalia. Though that nomination is stalled, perhaps forever, the polls suggest that a Democratic president will fill that seat, with Garland or someone of similar views.

In all, then, it seems likely (as it may seem likely to Kennedy) that there may soon be five consistent liberal votes on the court. They will call the shots.

Kennedy will turn 80 in less than a month. He faces the prospect of spending his last years on the court as an architect of a new liberal ascendancy – or as a powerless figure in dissent. This month at least, Kennedy chose the liberal side. As a justice who clearly enjoys the exercise of power, Kennedy may be finding a continuing embrace of the liberals the most congenial path.

Another way to put that is that he senses a national turn toward common sense that may be unstoppable no matter what Donald Trump represents. Even the Republicans are turning on Trump, and Kennedy would rather not fight battles like this one:

In the middle of all the excitement about the Supreme Court’s big abortion decision on Monday, the court handed down another, smaller, win for liberals: It ruled that those convicted of domestic violence offenses can be barred by federal law from buying or owning a gun for life – even if the conviction only demonstrates that someone acted recklessly violent, as opposed to intentionally or knowingly violent, toward a partner or spouse.

Voisine v. United States is a fairly technical ruling in the grand scheme of things, but it’s still important because of what the court didn’t do. The court could have decided that gun laws don’t cover domestic violence crimes in which the abuser’s intent isn’t clearly violent – and that could have, depending on how some states and the feds apply their domestic violence laws, limited the scope of federal restrictions on guns for domestic abusers. But the court instead allowed federal gun restrictions to remain more broad.

And the detail:

At-issue in Voisine v. United States is a technical question of whether two men with convictions for “reckless” domestic assault fall under a federal law prohibiting people convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. The law prohibiting domestic abusers from possessing firearms wasn’t the question under discussion – instead, the question was how far that law reached over certain states’ differing domestic assault laws.

Justice Clarence Thomas, however, was very concerned in arguments about the broader law that domestic abusers at large can’t have guns – breaking 10 years of silence on the Court to complain at arguments in February.

“Give me another area where a misdemeanor violation suspends a constitutional right,” he asked, later suggesting that the particular domestic abusers in this case shouldn’t lose their ability to carry guns because they’ve never actually “used a weapon against a family member.”

Thomas was the powerless figure in dissent here. He lost the argument to common sense – minor domestic violence can easily become major when the “abuser” is heavily armed. He (or she perhaps) can say it’s their constitutional right to make their point with a big gun – this is America after all. People do that all the time, and in most Hollywood movies. And sure, they may have never actually used a weapon against a family member, so far, but why allow them the means to do that? Clarence Thomas should be glad Anita Hill wasn’t carrying a gun, legally, way back when. Thomas hasn’t thought this through.

Others have. They’ve now thought many things through. That’s the new big thing, and the Republicans have been courting disaster on these matters for many years. Now they’ve lost the court itself.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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