Bush Judges Just Delivered Body Blows to Reproductive Rights. President Obama, Are You Paying Attention?

The law, lawyers, and the court.
Nov. 1 2013 8:02 PM

Dear President Obama, This Is Why Judges Matter

Two Bush appointees deliver body blows to reproductive rights—and demonstrate the power of the bench.


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As the district judge who blocked the provision observed, this rule really just operates to shut down clinics, because in states like Texas, there are hundreds of miles in which it’s impossible for a doctor who does abortions to find a hospital willing to grant her admitting privileges.

As Andrea Grimes of RH Reality Check reports, the Texas solicitor general made it easy to see through the charade here by arguing that the state has the right to impose “inconveniences on women seeking abortion in hopes that it may lead women considering abortion to consider childbirth instead.” In her ruling Thursday, Owen took that idea and ran with it. Texas can require doctors to have admitting privileges even though there’s no benefit to women seeking emergency treatment because of the state’s interest in “regulating the medical profession.” It is enough that one witness testified that admitting privileges help ensure that doctors are credentialed.

Owen next minimizes the effect that the admitting privileges will have on women. Planned Parenthood says that 22,000 women across Texas won’t have access to a clinic if this law goes into effect. Owen shaves that down to the women who live in 24 counties in the Rio Grande Valley by finding that 90 percent of women who lives elsewhere in Texas still live within 100 miles of a clinic—and that is good enough. As for the women of the Rio Grande, well, they can just jet off the 150 miles to Corpus Christi, and that too is not a real burden. As for evidence presented to the district court that many women in the area are immigrants who don’t have the papers to make it to Corpus Christi because of checkpoints: “This obstacle is unrelated to the hospital-admitting-privileges requirement.”

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This is the kind of no-holds-barred approach that makes right-wing hearts sing. It goes without saying, but we will say it anyway: The hardship here falls almost entirely on poor women. They’re the ones for whom a long trip, which they will likely have to make more than once given the state waiting period already in effect, is a serious drain. Owen and the two other appellate judges who joined her are more than willing to make their lives harder. She may have gone further in this direction than any other judge. In 2003, the U.S. Court of Appeals for the 6th Circuit upheld an abortion regulation that shut down one clinic, saying it was good enough that there is another clinic 55 miles away. But 150 miles for women in 24 counties—that’s a real step up. Or down.

Compare Owen’s coldness to the women of the Rio Grande Valley to Brown’s bottomless concern for Francis and Philip Gilardi, the owners of Freshway Foods. They oppose contraception. So they exclude it from the company’s health insurance coverage. “But along came the Affordable Care Act,” Brown writes. The contraception mandate in the law doesn’t apply to religious organizations or small businesses. But Freshway Foods is neither. And so, Brown says, the Gilardis—personally—found themselves “on the horns of an impossible dilemma.”

To find in their favor, Brown has to effectively confer personhood on Freshway Foods, because the law protecting religious freedom that’s relevant here (the Religious Freedom Restoration Act) prevents the government from substantially burdening “a person’s exercise of religion.” No worries. Brown selectively cobbles together some history, and waves her Citizens United wand, and presto! Freshway Foods is saved from having to sign up with an insurer who will cover its employees for birth control.

The Supreme Court should have the last word here, for better or worse. Owen’s ruling means there’s now a split in the lower courts over the constitutionality of requiring hospital admitting privileges for abortion providers. Brown’s opinion means that the contraception mandate is now tied 2–1 in the federal appeals courts, with more suits pending.*

Obama cared enough about the Supreme Court to push for his two nominees, Elena Kagan and Sonia Sotomayor. But with a handful of notable exceptions, the president has not made bold choices for the appeals courts. And when his nominees have met obstruction in the Senate, he has rarely fought for them. Last summer, when he tapped Millett, Obama signaled that he was ready to take a bigger stand by presenting her as part of a package of three D.C. Circuit choices. Now it’s time for him to come through. If he needed any more reminders of the power of the bench—a power that endures for decades after a presidency has ended—Owen and Brown just gave it to him. In a double dose.

Correction, Nov. 3, 2013: This article originally said the contraception mandate is losing 2–1 in the federal appeals courts. In fact it is tied 2–2. (Return.) It also misstated that the D.C. Circuit ruled that the contraception mandate in Obamacare "trammels" the religious freedom of the company Freshway Foods, and conferred personhood on the company. The court found that the contraception mandate violates the Religious Freedom Restoration Act because Freshway Foods is a closely held company, so the mandate violates the rights of its owners. The ruling effectively confers personhood on the company rather than directly doing so.

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Dahlia Lithwick writes about the courts and the law for Slate

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