Lower Court Conservative Follies

A 6th Circuit Court of Appeals panel granted today a request from the state of Tennessee, letting part of a law take effect that prohibits abortion based on a patient’s reason, including a potential Down syndrome diagnosis or the sex or race of the fetus.

Online sources provide a continual onslaught that tosses more and more stuff at you, at times providing only an incomplete snapshot.  This is so especially when you "doomscroll"  on Twitter or some place else.  So, some news item requires looking into or only reports something that is not final or whatever.  Or, you have some bad thing, since bad things happen, especially with the current control of various governmental bodies.  This includes a slew of lawsuits, some of which will result in bad results such as a conversion therapy ban that applies to licensed therapists counseling minors being struck down.   

[One thing to note here is that what the ruling underlines is that there will be a continuing triage, these rulings being burdensome, but leaving open some room to pass sane rules and so on.  The challengers argued the law was overbroad.  It does not appear to have been but so it goes.  That leaves open some room for a partial ban even under that ruling. OTOH, even if the case went the other way, the law did not cover unlicensed therapists or information about them.  The law did not mean a church could not counsel someone's child not to be break anti-gay doctrine.]  

One generally sane somewhat libertarian leaning legal person on Twitter summarized it and criticized those who would say this came out of left field (so to speak) or was unreasonable.  That isn't what I saw.  It is quite understandable, including with recent free speech jurisprudence that applies to economic and professional speech.  This is especially the case with the horrible Supreme Court case from a few years back that struck down a reasonable limited disclosure law involving crisis pregnancy clinics while somehow differentiating informed consent rules for family planning clinics.  Breyer angrily flagged the double standard.  

The problem is with the result and that the Supreme Court opened it up as a reasonable (if not compelled) one.  A mix of the qualifiers I referenced above is in place for the lower court abortion ruling that leads off this entry.   Such a "reason" ban was struck down by another lower court some time in the before times but the Supreme Court avoided deciding the issue with Thomas tossing in a well reported concurrence suggesting such a thing is in effect an eugenics ban.  It very well is a sort of bait now that the Supreme Court is 1/3 infected with tainted Trump judges.  

On the merits, it is unconstitutional -- why a person aborts or marries or has friends or various other things is a personal decision, even if the decision might be deemed a bad one.  It is even an ironical matter of inequality -- why those factors?  Why that specific disability?  I am willing to directly face up to the substance of the matter, at any rate, though it might be satisfactory to note things like sex specific abortions just aren't a thing in this country.  Take the race thing too.  What if the reason is the person was raped but they do not specifically want to a child that blatantly doesn't look like them to raise questions? Or, they had an affair and the spouse is willing to forgive, but not again if the child makes it obvious?  

The specific reason the court of appeals left the law in operation during the appeal, however, did not hit to the substance of the law. The parties did raise a substantive claim, but the lower court only ruled on the other one -- a vagueness claim particularly focused on the provider knowingly performing the procedure for those reasons. As the dissent noted here, that claim does sound strong, and is made stronger since doubt here would interfere with professional speech and free patient disclosure.  Go back to the above -- a decision often is made for various reasons.

The majority disagreed without addressing the other claim so the challengers went back to the district court to press that.  If anything, though procedural holdings are often seen as less strenuous. let us say, than substantive ones on the merits so more advisable for judges to rest on (when possible, you do not go with a frontal attack of a democratically passed law), the one here is if anything stronger.  

Planned Parenthood v. Casey protects the choice to have an abortion before viability.  The recent ruling went to how strongly a law burdened that right and Roberts was the deciding vote with a weaker test.  Roberts, however, granted the underlining right even if he might not later.  That is the rub though -- these cases are in effect test cases.  So, avoiding a full frontal attack would be in the interests of the pro-choice side.  

Thus, though the result here is not as strong as both sides understood it to be from some of the comments I saw, the result still is troubling. It is also one of those bits and pieces that will continue to be thrown out at you, interesting but something that one should not try to be overwhelmed by.