Texas' abortion law, HB2, goes to oral arguments Monday on appeal at the U.S. Fifth Circuit Court of Appeals in New Orleans.
The case, No. 13-51008 – Planned Parenthood of Greater Texas Surgical Health Services, Et Al. vs. Attorney General Gregory Abbott, Et Al., Appellants, was recently before the appeals court in October 2013. At that time, the federal appeals court reversed the ruling of Judge Lee Yeakel of the federal district court in Austin, Texas. Judge Yeakel had ruled that parts of HB2 were unconstitutional, thereby blocking those provisions from going into effect; the Fifth Circuit undid that, writing that Texas would likely defeat Planned Parenthood in a full trial on the merits.
The panel of the court lifting the injunction in October consisted of Judges Priscilla R. Owen, Jennifer Walker Elrod and Catharina Haynes. Interestingly, Monday's panel will consist of Judges Haynes and Elrod, but sitting in place of Judge Owen will be Judge Edith Jones.
To read why this substitution is questionable, read below the jump. Putting aside questions about the possibly cynical choice of an all female panel to hear arguments about HB2, the substitution of Jones is not without controversy. Last year, ThinkProgress profiled the entire Fifth Circuit in a post entitled Eight Things You Should Know About The Court That Will Decide If Texas' Abortion Ban Is Constitutional. They highlighted Judge Jones' tenure three times, citing an investigation into her alleged racism (more below), citing her support for Texas' sonogram law, and citing an instance where she told an attorney in open court to “shut up.”
Judge Jones had also been the chief judge of the Fifth Circuit, a not insignificant position. In September 2012, it was announced that she would be stepping down for “family issues” according to Above the Law.
Judge Jones faced further scrutiny in June 2013 when a coalition of attorneys, activists, and civil rights groups, including – among others – the NAACP, the Texas Civil Rights Project, and LULAC, filed a Complaint of Judicial Misconduct against her. The complaint arose from a February 2013 discussion at the University of Pennsylvania in which Judge Jones allegedly made several inappropriate assertions including that African Americans and Hispanics were prone to violence and that defenses of mental incapacity were merely red herrings.
The complaint alleged that those comments were made during a discussion which specifically concerned the case of death row inmate Elroy Chester, a case which had already come before the Fifth Circuit and which, at the time of the discussion, could come before the Fifth Circuit again. In fact, it did. Chester's attorneys filed a motion to stay his execution; the Fifth Circuit denied it; and Chester was then executed that June.
The complaint against Judge Jones came before Chief Justice John Roberts of the U.S. Supreme Court who, rather than ending the matter there, transferred it for review to the Judicial Council of the District of Columbia Circuit.
Critics of Judge Jones' stance on Texas laws concerning reproductive rights have also expressed concern. According to Thomson Reuters, in her 2012 opinion upholding Texas' sonogram law, Judge Jones had written:
“The required disclosures of a sonogram, the fetal heartbeat, and their medical descriptions are the epitome of truthful, non-misleading information.”
The panel in that case continued:
“Only if one assumes … that pregnancy is a condition to be terminated, can one assume that such information about the fetus is medically irrelevant.”
Moreover, in a 2004 case before the Fifth Circuit captioned McCorvey v. Hill, and featuring the “Roe” of the seminal case, Roe v. Wade, Judge Jones filed a concurring opinion in which she wrote:
First, there are about a thousand affidavits of women who have had abortions and claim to have suffered long-term emotional damage and impaired relationships from their decision. Studies by scientists, offered by McCorvey, suggest that women may be affected emotionally and physically for years afterward and may be more prone to engage in high-risk, self-destructive conduct as a result of having had abortions.
Second, Roe's assumption that the decision to abort a baby will be made in close consultation with a woman's private physician is called into question by affidavits from workers at abortion clinics, where most abortions are now performed. According to the affidavits, women are often herded through their procedures with little or no medical or emotional counseling.
Finally, neonatal and medical science, summarized by McCorvey, now graphically portrays, as science was unable to do 31 years ago, how a baby develops sensitivity to external stimuli and to pain much earlier than was then believed.
In sum, if courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's “choice” is far more risky and less beneficial, and the child's sentience far more advanced, than the Roe Court knew.
She further bemoaned the notion that courts are legally barred from examining the factual assumptions underpinning laws concerning reproductive health; that legislatures will be unable to pass laws “that challenge the trimester ruling adopted in Roe;” and that legislatures cannot “meaningfully debate [the]evidence” and that “facts no longer matter.”
She concluded her concurrence in McCorvey thus:
Hard and social science will of course progress even though the Supreme Court averts its eyes. It takes no expert prognosticator to know that research on women's mental and physical health following abortion will yield an eventual medical consensus, and neonatal science will push the frontiers of fetal “viability” ever closer to the date of conception. One may fervently hope that the Court will someday acknowledge such developments and re-evaluate Roeand Casey accordingly. That the Court's constitutional decisionmaking leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication.
We will know the result of the court's judge rotations soon enough.