With all that’s going on in the world of law, I didn’t plan on writing about abortion again so soon. But as the tide of Supreme Court-bound abortion cases turns rapidly into a flood, it’s become a challenge even for people with a deep interest in the future of the abortion right to keep track of what’s happening and of which cases to worry about most. Thus, this column.
Within the next few weeks, a challenge to Louisiana’s abortion law, which I wrote about last month, will arrive at the court as a formal appeal. Louisiana requires that doctors who perform abortions in that deeply anti-abortion state do the impossible by getting admitting privileges in local hospitals. The law is “substantially similar” to the Texas law the Supreme Court declared unconstitutional in Whole Woman’s Health v. Hellerstedt in 2016, the United States Court of Appeals for the Fifth Circuit conceded, in an opinion that implausibly upheld the Louisiana law nonetheless. (The Supreme Court last month, over four dissents, temporarily blocked the law from taking effect in order to give the abortion providers a chance to file their appeal.)
The Fifth Circuit is the court that upheld the Texas law. Yes, it’s the very same court the Supreme Court reversed in 2016, concluding that the law imposed an unconstitutional “undue burden” on women’s access to abortion by forcing most of the state’s clinics to close while providing none of the health benefits the state claimed for it. How could the judges of the Fifth Circuit not get that message? To put it perhaps uncharitably but not unfairly, the circuit’s 2-to-1 decision in the Louisiana case, June Medical Services v. Gee, boiled down to: That was Texas and this is Louisiana. Indeed, there is a difference: Louisiana is worse. The federal district judge who invalidated the law found that it would leave one clinic with one doctor operating in a state where nearly 10,000 women seek abortions every year.
Clearly, a majority of the Fifth Circuit is at war with the Supreme Court’s abortion precedents — and was, even before the Trump administration filled five vacancies on the 16-judge appeals court. The Trump-appointed judges clearly understand their marching orders; one of those new Fifth Circuit judges, James C. Ho, has already referred in a published opinion in a separate case to “the moral tragedy of abortion,” a gratuitous comment that, whatever its purpose, served to make him stand out from the crowd.
But judicial insurrection is not limited to Trump appointees. Republican presidents since Ronald Reagan have looked for judges and justices who could be counted on to oppose the right to abortion. To a startling degree, the fruits of that effort are apparent in the cases now making their way to the Supreme Court. Red states are competing with one another to enact abortion restrictions that, while flagrantly unconstitutional under current law, could provide opportunities for the newly composed Supreme Court to reopen the issue. The Guttmacher Institute, a research organization that supports reproductive rights, reported last week that since the beginning of this year, 304 abortion-restricting bills have been introduced in state legislatures. Lower court judges are constrained by Supreme Court precedent to invalidate these new laws, but the opinions by which they are doing so are suffused with their personal views on abortion and their complaints about how the high court has tied their hands.
For example, this is how Chief Judge Ed Carnes of the United States Court of Appeals for the 11th Circuit began his opinion striking down an Alabama law that criminalizes the operation most commonly used to terminate a pregnancy in the second trimester: “Some Supreme Court justices have been of the view that there is constitutional law and then there is the aberration of constitutional law relating to abortion. If so, what we must apply here is the aberration.” In a footnote to his 36-page opinion, Judge Carnes refused to call doctors who perform abortions either “doctors” or “physicians,” noting that “some people” regarded those designations “as inapposite, if not oxymoronic in the abortion context.” He called them “practitioners.” He also described the constitutional right to abortion as something the Supreme Court had decided to “bestow on women.”
In a concurring opinion, Judge Joel Dubina wrote that he wanted to put “on record” his agreement with Justice Clarence Thomas that the Supreme Court’s abortion jurisprudence “has no basis in the Constitution.” But “the problem I have,” Judge Dubina continued, “is that I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.” (Both Chief Judge Carnes and Judge Dubina were named to the 11th Circuit by President George H.W. Bush.)
Alabama has appealed the decision, Harris v. West Alabama Women’s Center, to the Supreme Court, noting in its brief that eight other states have enacted the same law. The justices will consider in mid-April whether to hear the case.
I’ve seen a lot in decades of paying close attention to decisions coming out of the federal appeals courts, but I can’t remember seeing such expressions of outright contempt for the Supreme Court. In this age of norm-collapse, something has been unleashed here. There’s more.
In another appeal pending before the court, this one from Indiana, the United States Court of Appeals for the Seventh Circuit struck down a law that makes it a felony for a doctor to perform an abortion if the patient wants to terminate her pregnancy because the fetus has been diagnosed with Down syndrome or “any other disability.” In his opinion, Judge William Bauer wrote that the Supreme Court’s “unambiguous” and “controlling precedent” made clear that before fetal viability, a woman’s right to an abortion was “categorical” and could not be blocked for this or any other reason.
Judge Bauer, a 92-year-old former chief judge of the circuit who was originally appointed to a Federal District Court by President Richard Nixon, expressed no unease about the status quo in a straightforward 20-page opinion. But Judge Daniel Manion, in a concurring opinion, took a very different path. He accused the Supreme Court of making abortion “a more untouchable right than even the freedom of speech.” While the outcome of this case was “compelled,” he said, “it is at least time to downgrade abortion to the same status as actual constitutional rights.”
Judge Manion, named to the Seventh Circuit by President Reagan and long one of the most conservative judges in the country, wrote that “Indiana made a noble attempt to protect the most vulnerable members of an already vulnerable group” but the Supreme Court’s precedents “proved an insurmountable obstacle.” He added: “This court is powerless to change that state of affairs. Only the Supreme Court or a constitutional amendment can do that.”
Indiana’s appeal, Box v. Planned Parenthood of Indiana and Kentucky, arrived at the Supreme Court in October. The justices have taken it up at their private conference eight times and will consider it again at the conference scheduled this Friday. Ordinarily, such prolonged consideration would indicate that the petition has failed to get the requisite four votes needed to add a case to the court’s docket for decision, and that justices who wanted to accept the case are crafting a dissent. But the justices’ conference is the black box of the decision process, and there is no way of knowing what happens there until the word “granted” or “denied” issues from behind the closed door — perhaps, in this case, on Monday.
So-called “heartbeat bills,” which would ban abortion as soon as ultrasound can detect a heartbeat — at as early as six weeks, when the embryo, not yet even considered a fetus, is one-quarter inch long — have received a good deal of public attention. Gov. Phil Bryant of Mississippi signed one into law last week, and a dozen other states are considering similar measures. These laws are too blatant, presenting too big a target, to catch favor with a Supreme Court that prefers moving toward a desired destination in more measured steps. (See last term’s public employee union case, which reached a radical result after a series of intermediate steps that made that result appear all but foreordained.)
A more likely vehicle for the Supreme Court to use to cut back on the abortion right is another Indiana appeal, which the state filed last month from another ruling by the Seventh Circuit. The appeals court invalidated an Indiana law requiring women to undergo an ultrasound examination as part of the informed-consent procedure at least 18 hours before the abortion. Since Indiana had long had both an informed-consent requirement, during which a doctor must explain the procedure and advise on options if the woman decides to carry the pregnancy to term, and an ultrasound requirement, this law, enacted in 2016, sounds relatively benign.
But as Judge Ilana Rovner explained for the appeals court, the new law would seriously impair access to abortion for many women in the state. While under the old law, informed consent had to be given at least 18 hours in advance, the ultrasound could take place immediately before the abortion. That meant that women could receive the counseling at a clinic near their homes, and then travel at a later time to one of the handful of clinics in Indiana that perform abortions, where they could receive both the ultrasound and the operation. Only the clinics that provide abortions have the ultrasound equipment. So the new law means that women have to make two trips, hundreds of miles for some, because of the requirement of an 18-hour gap between the ultrasound and the abortion. This was a heavy burden without any corresponding benefit, the court concluded; hence, the burden was “undue” and the law was unconstitutional. The law’s only effect, Judge Rovner wrote, “is to place barriers between a woman who wishes to exercise her right to an abortion and her ability to do so.” (Judge Rovner was named to the Seventh Circuit by President George H.W. Bush.)
In the state’s appeal, titled, as is the other Indiana case, Box v. Planned Parenthood of Indiana and Kentucky, Indiana complains that the appeals court “said nothing about the ultrasound’s utility in helping women to come to a better, more informed abortion decision.” The state claims that Planned Parenthood, which operates the four abortion clinics, could “mitigate this burden” by equipping its other reproductive health centers around the state with ultrasound equipment.
While the state defends the ultrasound requirement as protecting “fetal life and dignity” as well as “maternal mental health,” it doesn’t explain how the new 18-hour requirement improves on the old law. No matter. It’s not hard to envision five justices using this case to whittle down the “undue burden” standard as the Supreme Court applied it before Justice Anthony Kennedy’s retirement last year and as the Seventh Circuit has been applying it in recent months. The court will consider this case in April, after it receives Planned Parenthood’s response to the state’s petition.
Of all the recent rulings, the decision that took me most by surprise and gives me the most concern was handed down two weeks ago by the United States Court of Appeals for the Sixth Circuit. The court upheld an Ohio law that bars state public health money from going to any organization that performs abortions. For “any organization” read Planned Parenthood, which receives no public money for abortions, but that for years has administered government grants for six public health programs, including H.I.V. testing, cancer screening and sexual violence prevention. Planned Parenthood is the largest provider of H.I.V. testing in Cleveland, Akron and Canton. It performs abortions at three of its 27 clinics in the state.
After then-Gov. John Kasich signed the law in 2016, Planned Parenthood sued on the ground that the state was imposing an “unconstitutional condition” by requiring it to forfeit its right to provide abortions in order to remain eligible for the unrelated public health grants. A Federal District Court barred the law from taking effect, in a decision upheld by a three-judge panel of the appeals court. But fortified by the addition of four Trump-appointed judges, the full court reheard the case and voted 11 to 6 to reverse the panel and uphold the law, with all the new judges in the majority.
I found Judge Jeffrey Sutton’s opinion for the court astonishing. He wrote that Planned Parenthood had no right to invoke the doctrine of unconstitutional conditions because while women have a right to obtain abortions, neither Planned Parenthood nor any other abortion provider has the right to perform them. As he explained: “If there’s no right, there’s no unconstitutional condition. And the providers have no such constitutional right.”
Judge Sutton, named to the appeals court by President George W. Bush, is a thoughtful conservative whom I’ve long respected. I’ve struggled to understand what led him to his conclusion. Since the earliest years of the Supreme Court’s abortion jurisprudence, both the Supreme Court and the lower courts have regarded doctors and clinics as standing in the shoes of their abortion patients, entitled to assert rights that individual women are highly unlikely to be in a position to assert.
The precedents are clear on this crucial point, in case after case, court after court. As Judge Helene White wrote in dissent, “An abortion provider’s constitutional right may be derivative of the patient’s right — but it is a right nonetheless.” She continued: “The majority’s reasoning contorts a doctrine that aims to prevent the government from manipulating rights out of existence, to permit the state to leverage its funding to launch a thinly veiled attack on women’s rights so long as it camouflages its unconstitutional condition in provider-focused verbiage.” (On Monday of this week, a federal district judge in North Carolina, William L. Osteen Jr., struck down that state’s ban on abortions after 20 weeks of pregnancy, finding that doctors themselves had standing to bring the case because of their plausible fear of prosecution if they interpreted the statute’s health exception too generously in the view of state prosecutors.)
I don’t know whether Planned Parenthood will appeal the Ohio decision, Planned Parenthood v. Hodges. It’s received little attention — not surprisingly. As framed by the appeals court, it’s not the kind of issue that sends culture warriors to the barricades. But there’s no chance that the justices will miss its significance. Is it the small-target case they have been waiting for? Could be. As my favorite poet, Edna St. Vincent Millay, wrote in an obviously different context:
’Tis not love’s going that hurts my days,
But that it went in little ways.
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第103期跑狗图【毫】【无】【悬】【念】，【本】【就】【对】【这】【场】【比】【赛】【胜】【券】【在】【握】【的】【空】【与】【白】【在】【得】【到】【小】【舞】【的】【帮】【助】，【成】【功】【地】【将】【初】【濑】【伊】【纲】【拖】【到】【了】【血】【坏】【结】【束】。 【最】【后】【空】【淡】【定】【补】【枪】。 【从】【背】【后】【击】【中】【血】【坏】【结】【束】【的】【初】【濑】【伊】【纲】，【空】【的】【手】【指】【挠】【了】【挠】【脸】【暇】。 “【好】【像】【有】【些】【无】【聊】【了】。” 【虽】【然】【空】【也】【不】【是】【没】【打】【过】【辅】【助】，【只】【是】【没】【辅】【助】【的】【这】【么】【彻】【底】【过】，【外】【挂】【什】【么】【的】，【只】【要】【不】【是】【无】【敌】【挂】，
【我】【们】【蜂】【拥】【过】【去】，【婆】【婆】【满】【脸】【焦】【急】【的】【看】【着】【医】【生】【的】【脸】，【我】【紧】【紧】【的】【抓】【着】【许】【言】【的】【手】，【我】【们】【渴】【望】【的】【盯】【着】【医】【生】。 “【手】【术】【很】【顺】【利】。” 【听】【到】【这】【句】【话】，【我】【的】【心】【一】【下】【子】【活】【跃】【起】【来】，【太】【好】【了】，【医】【生】【的】【话】【就】【像】【是】【一】【剂】【定】【心】【丸】。 “【病】【人】【目】【前】【正】【在】【监】【护】【室】，【相】【信】【一】【天】【以】【后】【就】【可】【以】【出】【来】【了】。” 【医】【生】【走】【后】，【我】【紧】【紧】【的】【抱】【着】【许】【言】，【泪】【水】【无】【声】【的】【滑】
【段】【素】【绢】【等】【人】【赶】【来】【时】，【不】【见】【陆】【离】，【也】【不】【见】【异】【兽】，【那】【地】【上】【只】【有】【一】【只】【苍】【鹰】【和】【一】【只】【黄】【牛】，【奄】【奄】【一】【息】，【尚】【且】【存】【活】。 “【陆】【离】？【陆】【离】！”【雨】【夜】，【段】【素】【绢】【的】【呼】【喊】【又】【一】【次】【划】【破】【天】【空】，【带】【出】【一】【道】【紫】【电】【霹】【雳】。 【众】【人】【认】【为】【苍】【鹰】【和】【黄】【牛】【是】【那】【异】【兽】【把】【之】【前】【进】【食】【的】【食】【物】【给】【吐】【出】【来】【了】。 【那】【陆】【离】【去】【哪】【了】？【异】【兽】【又】【去】【哪】【了】？ “【难】【道】？【陆】【离】【被】【它】【吃】
【她】【似】【乎】【把】【自】【己】【丢】【失】【十】【多】【年】【的】【仇】【都】【报】【复】【回】【来】。 【木】【家】【难】【以】【置】【信】，【虽】【然】【他】【们】【当】【初】【弄】【丢】【了】【木】【零】，【可】【那】【是】【意】【外】，【这】【么】【多】【年】【来】，【木】【家】【也】【从】【未】【放】【弃】【过】【她】。 【每】【年】【都】【耗】【费】【大】【比】【资】【金】，【大】【海】【捞】【针】【一】【样】【寻】【找】【木】【零】。 【甚】【至】【为】【了】【她】【特】【意】【成】【立】【了】【一】【个】【基】【金】【会】，【就】【是】【为】【了】【帮】【助】【天】【底】【下】【丢】【失】【孩】【子】【的】【父】【母】【寻】【找】【自】【己】【的】【孩】【子】。 【他】【们】【善】【待】【他】【人】，【也】第103期跑狗图【好】【半】【晌】，**【若】【和】【沐】【乐】【瑶】【才】【从】【更】【衣】【室】【走】【出】【来】。**【若】【伸】【了】【伸】【懒】【腰】，【一】【脸】【的】【舒】【爽】【惬】【意】，【阳】【光】【正】【好】，【从】【走】【廊】【的】【窗】【户】【照】【射】【进】【来】，【让】【人】【暖】【洋】【洋】【的】，【很】【是】【舒】【服】。 “【哟】【偶】，【终】【于】【出】【来】【了】，【换】【个】【衣】【服】【还】【要】【那】【么】【久】，【腿】【都】【站】【麻】。”【张】【婷】【笑】【着】【拍】【拍】【裙】【摆】【笑】【着】【说】【到】：“【你】【们】【要】【是】【再】【不】【出】【来】，【我】【们】【都】【要】【敲】【门】【进】【去】【了】。【也】【不】【知】【道】【不】【是】【着】【衣】【服】【设】【计】
【第】【一】【百】【零】【一】【章】 【等】【邵】【焱】【忙】【活】【完】，**【站】【起】【身】，【极】【轻】【的】【瞟】【了】【一】【眼】【邵】【焱】【的】【肚】【子】，“【焱】【哥】，【你】【说】【今】【晚】【你】【是】【不】【是】【故】【意】【的】？【夹】【菜】【的】【速】【度】【那】【么】【快】，【平】【日】【里】【我】【可】【没】【见】【你】【那】【样】【过】。” **【倚】【着】【桌】【子】，【双】【手】【叉】【腰】，【莫】【名】【的】【生】【出】【一】【股】【气】【势】，【邵】【焱】【从】【厨】【房】【出】【来】，【拉】【上】【了】【玻】【璃】【门】，【擦】【干】【手】【的】【纸】【巾】【扔】【进】【垃】【圾】【桶】，【邵】【焱】【的】【手】【抵】【在】**【倚】【靠】【桌】【子】【的】【位】
【听】【到】【喊】【声】，【萧】【冉】【抬】【眼】【看】【着】【谭】【氏】【掌】【门】，【问】【了】【句】“【谭】【掌】【柜】【还】【有】【事】【吗】”？ 【谭】【氏】【掌】【门】【看】【着】【萧】【冉】【那】【张】【不】【带】【半】【点】【情】【面】【的】【脸】，【咬】【咬】【牙】【说】【道】：“【有】【事】。” “【讲】。”【说】【完】，【萧】【冉】【又】【低】【下】【头】。 【谭】【氏】【掌】【门】【心】【里】【那】【个】【气】【啊】！【只】【看】【刚】【才】【萧】【冉】【的】【脸】【面】，【他】【就】【知】【道】【昨】【夜】【那】【大】【手】【笔】【喂】【了】【狗】【了】。 【思】【量】【再】【三】，【谭】【氏】【掌】【门】【觉】【得】【还】【是】【不】【说】【的】【好】。【只】【看】