Winking and nodding at the constitution

Winking and nodding at the constitution

by digby

Ian Millhiser analyzes yesterday's Texas abortion ruling:
Texas’s justification for an anti-abortion law enacted last year is “disingenuous,” according to Judge Lee Yeakel’s opinion striking parts of that law on Friday. Indeed, Judge Yeakel’s opinion dismantles the state’s avowed justification for the law, pointing out that it does little to protect women’s health and a great deal to restrict access to abortion. Whatever the strength of Yeakel’s argument, however, his decision is unlikely to stand for long, as it will be appealed to one of the most conservative courts in the country — and the Supreme Court has done little to constrain that court from restricting the right to choose.
One of the most significant innovations developed by lawyers and lawmakers who oppose abortion are sham health laws that, on their surface, appear intended to make abortions safer, but which have the practical effect of making abortions difficult or impossible to obtain. Texas’s House Bill 2 (HB2) is one of these laws. Last October, a provision of HB2 took effect that prohibited doctors from performing abortions unless they have admitting privileges in nearby hospitals. Judge Yeakel halted that provision shortly before it took effect, noting that “there is no rational relationship between improved patient outcomes and hospital admitting privileges.” The Fifth Circuit reinstated the law only a few days later.
It seems that this "more ways than one way to skin the cat" concept is oddly common in our system of justice. And it's even endorsed (sort of) by Supreme Court justices. For instance, in the recent buffer zone ruling, the court rested its decision on free speech grounds, which makes sense. But then it gave some broad hints to the pro-choice side by saying they could use existing traffic or zoning laws to accomplish what they wanted to accomplish without offending the constitution. I know it's not a perfect analogy, but the underlying concept is that it's ok to use existing laws in novel ways to accomplish what a straightforward ban on a certain right cannot. That seems to me like an invitation to the sort of backdoor ban on abortion we see in states all over the country.

Since we have the Court telling pro-choice advocates that it's fine to find a different way to keep anti-choice zealots away from the clinic doors, I'm not sure I see why the Court won't tell the anti-choice advocates that it's perfectly permissible to find novel ways to keep doctors from performing abortions as long as it doesn't directly obstruct a woman's right to choose. (And yes, I get that there's this subjective "undue burden" test but that looks like yet another example of an end-run around the underlying principle.) If free speech is being infringed upon by a "buffer zone" it seems to me that it's being infringed upon by a traffic ordinance that's being used as a phony excuse to create a buffer zone. Likewise, if the Court has said that a woman has a constitutional right to an abortion then using safety regulations as an excuse to infringe that right should be a violation of the constitution.

I'm sure I'm sounding like a 12 year old to the constitutional scholars who undoubtedly have a well-thought out rationale as to why this is a necessary aspect of constitutional jurisprudence. Even I can see how these piecemeal rulings are designed to add up to a more solid legal framework over time. But to this layperson it just looks rather odd to see judges winking and nodding to various players about how they can circumvent what they have just proclaimed to be a constitutional principle.