Elections have consequences. Down the road, the judges Trump appointed and more easily are confirmed without a filibuster rule will come into play. The status of the "blue slip" rule is in the air at the moment. A major reason the cloture rule for executive appointments was blocked was because of the lengths it was taken against Obama, including simply because Republicans didn't want to fill D.C. Court judges. A majority of Democratic appointments are there now. Key ruling today.
(Policy also is affected, even if slashing ACA and a few other big picture things have yet to occur. As the Dodgers were in the midst of beating the Astros, Pence cast the tie breaker to overturn a bank regulation, using a fast track system that avoids the possibility of filibusters. It gets less play, but many regulations have been handled in this fashion. On some level, that's fair, though bad policy. You control both branches of Congress, you get to overturn executive regulations. Elections and all that.)
I cited the case of a seventeen year old undocumented girl blocked from having an abortion. A loss in the panel (an unlucky draw) was overturned today by an en banc 6-3 Democratic appointments (another did not take part because her husband is involved in the ACLU). The opinion was a brief order with a strong concurrence by the judge who dissented in the original panel, Judge Millett, who was one of the Obama appointees only there because cloture rules changed to allow a majority vote.
The Administration big picture, even to the degree of targeting contraceptive use that has been found to be significant in reducing abortions, has taken a conservative path in the area of reproductive liberty. But, they granted for the sake of argument that the teen here had a right to choose an abortion. She could voluntary deport (during oral argument, it came out her home country doesn't allow abortion), which would mean forfeiting her ability to seek the right to stay, particularly as far as the evidence suggests the situation she left was pretty bad [see Millett]. Or, the angle the author of the primary dissent pushed, she might be able to get a sponsor. But, it has been over a month. There is no grand reason to think she will get one that soon. And, every moment she is pregnant is a burden, besides the fact her time is running out being mid-second trimester.
One conservative judge explicitly said she was upset that the Trump Administration did not argue the girl did not have a right to choose an abortion. She wanted to hold just that, leaving open some medical emergency exception. A rather gratutious activist approach. The girl is a "person" protected by the Fifth Amendment. A person without significant connection to this country very well lacks certain rights pursuant to somewhat unclear case law. But, the right to basic control over one's person would seem to be a basic right indeed. Looking at facts favorable to her -- we are not talking about some adult to be sent back to Canada or something -- particularly does not make this a great case to reach out on this issue.
This is not about giving a whole panoply of rights to an undocumented person, even if you are concerned about it being bad policy to give rights to those here illegally. The other dissent was most upset that his approach to give the feds until the end of the month to find a sponsor (if one is not found? what then? how long will this really take? who knows). If she was not in federal custody, remember, the Texas law found she warranted a bypass. She has an guardian ad litem. Has already waited over a month. Again, this isn't a great case on the facts to do this. Millett again makes the case well. She serves the RBG role. There is some bad blood there, if you note the tone.
The concurrence also focuses on replying to the alleged facilitation the government is trying to avoid. This almost makes Hobby Lobby look good, including no payment and actual details where the girl and third parties do all the work. The feds currently -- their advocate didn't want to firmly say so -- apparently would let an undocumented adult in detention, non-criminal, to have an abortion too. Finally, note the facts amount to the same situation as a prisoner, which the feds admit would have a right to have access to an abortion. The voluntary deportation and sponsor maybe being available are phantom options. In effect, the government is selectively burdening a minor's constitutional right over her own body because of a difference over morals.*
The last I read, the teen's lawyers noted that there is a process that has to be followed with the lower court judge and maybe another waiting period (has to be tied to her individual doctor) before she can have an abortion. The Administration can seek Supreme Court review and you would think they have at least three votes. The hope is that at least taking all the facts into consideration that five justices will not grant a stay or worse.
We shall see.
[Somewhat surprisingly, she was able to have an abortion today, apparently the counseling session still good. But, she is but one person. The anti-choice policies continue and without a firm "no" from SCOTUS, they might even try to do this again, perhaps in another circuit. Note the caption includes the words "and others similarly situated," so it is unclear to me that the case is truly moot now that the girl had an abortion. Given that, perhaps, they decided to lose the battle in hope of long term winning the war, perhaps with Kennedy no longer around when it comes back.]
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* We basically saw this in the sexual orientation area as well and in both cases a Deputy Assistant AG has already been involved. It's charming actually -- I personally have engaged with this guy on blogs, including Dorf on Law where he ridiculed the right to same sex marriage in the usual confused strident sarcastic fashion.
(Policy also is affected, even if slashing ACA and a few other big picture things have yet to occur. As the Dodgers were in the midst of beating the Astros, Pence cast the tie breaker to overturn a bank regulation, using a fast track system that avoids the possibility of filibusters. It gets less play, but many regulations have been handled in this fashion. On some level, that's fair, though bad policy. You control both branches of Congress, you get to overturn executive regulations. Elections and all that.)
I cited the case of a seventeen year old undocumented girl blocked from having an abortion. A loss in the panel (an unlucky draw) was overturned today by an en banc 6-3 Democratic appointments (another did not take part because her husband is involved in the ACLU). The opinion was a brief order with a strong concurrence by the judge who dissented in the original panel, Judge Millett, who was one of the Obama appointees only there because cloture rules changed to allow a majority vote.
The attorneys general of 14 states filed a brief arguing the administration’s policy of blocking abortions for undocumented minors undermines the rights of states to establish consent requirements. Texas attorney general Ken Paxton, along with eight other state attorneys general, have meanwhile argued undocumented immigrants “do not have a right to abortion on demand.”This is a notable tidbit. Democratic AGs have repeatedly joined in to target Trump Administration policy in litigation even at this early date (travel ban, ACA litigation and this are just a taste). On basic federalism grounds, it is understandable for states to not want the federal government to interfere with their abortion law, even if power over foreigners provides an opening. See also, DOMA. The girl met state parental judicial bypass procedures. Texas' interests in blocking her is unclear. There was the crude "anchor baby" allegations. Is there some sort of fear of a big influx for abortions?
The Administration big picture, even to the degree of targeting contraceptive use that has been found to be significant in reducing abortions, has taken a conservative path in the area of reproductive liberty. But, they granted for the sake of argument that the teen here had a right to choose an abortion. She could voluntary deport (during oral argument, it came out her home country doesn't allow abortion), which would mean forfeiting her ability to seek the right to stay, particularly as far as the evidence suggests the situation she left was pretty bad [see Millett]. Or, the angle the author of the primary dissent pushed, she might be able to get a sponsor. But, it has been over a month. There is no grand reason to think she will get one that soon. And, every moment she is pregnant is a burden, besides the fact her time is running out being mid-second trimester.
One conservative judge explicitly said she was upset that the Trump Administration did not argue the girl did not have a right to choose an abortion. She wanted to hold just that, leaving open some medical emergency exception. A rather gratutious activist approach. The girl is a "person" protected by the Fifth Amendment. A person without significant connection to this country very well lacks certain rights pursuant to somewhat unclear case law. But, the right to basic control over one's person would seem to be a basic right indeed. Looking at facts favorable to her -- we are not talking about some adult to be sent back to Canada or something -- particularly does not make this a great case to reach out on this issue.
This is not about giving a whole panoply of rights to an undocumented person, even if you are concerned about it being bad policy to give rights to those here illegally. The other dissent was most upset that his approach to give the feds until the end of the month to find a sponsor (if one is not found? what then? how long will this really take? who knows). If she was not in federal custody, remember, the Texas law found she warranted a bypass. She has an guardian ad litem. Has already waited over a month. Again, this isn't a great case on the facts to do this. Millett again makes the case well. She serves the RBG role. There is some bad blood there, if you note the tone.
The concurrence also focuses on replying to the alleged facilitation the government is trying to avoid. This almost makes Hobby Lobby look good, including no payment and actual details where the girl and third parties do all the work. The feds currently -- their advocate didn't want to firmly say so -- apparently would let an undocumented adult in detention, non-criminal, to have an abortion too. Finally, note the facts amount to the same situation as a prisoner, which the feds admit would have a right to have access to an abortion. The voluntary deportation and sponsor maybe being available are phantom options. In effect, the government is selectively burdening a minor's constitutional right over her own body because of a difference over morals.*
The last I read, the teen's lawyers noted that there is a process that has to be followed with the lower court judge and maybe another waiting period (has to be tied to her individual doctor) before she can have an abortion. The Administration can seek Supreme Court review and you would think they have at least three votes. The hope is that at least taking all the facts into consideration that five justices will not grant a stay or worse.
We shall see.
[Somewhat surprisingly, she was able to have an abortion today, apparently the counseling session still good. But, she is but one person. The anti-choice policies continue and without a firm "no" from SCOTUS, they might even try to do this again, perhaps in another circuit. Note the caption includes the words "and others similarly situated," so it is unclear to me that the case is truly moot now that the girl had an abortion. Given that, perhaps, they decided to lose the battle in hope of long term winning the war, perhaps with Kennedy no longer around when it comes back.]
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* We basically saw this in the sexual orientation area as well and in both cases a Deputy Assistant AG has already been involved. It's charming actually -- I personally have engaged with this guy on blogs, including Dorf on Law where he ridiculed the right to same sex marriage in the usual confused strident sarcastic fashion.
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