During the night of February 7, the Supreme Court correctly instructed Louisiana that it cannot put its restrictive targeted regulation of abortion providers (TRAP) laws into effect until a lawsuit challenging them can be adjudicated. Louisiana’s law is essentially a duplicate of the Texas law the Court struck down 5-4 in Whole Woman’s Health v. Hellerstedt in 2016, with Justice Kennedy providing the key fifth vote.
Nevertheless, four of the far right justices dissented: Thomas, Alito, Gorsuch, and Kavanaugh, those last two showing the impact of justices selected by Donald Trump.
Only Justice Kavanaugh wrote a dissent explaining his reasons, and they had absolutely no proper basis. He wrote that the Court needs more facts about the impact of the Louisiana law before putting enforcement on hold.
That is particularly galling. The record already answers any questions he may have about what the facts are. The district court that initially ruled the law unconstitutional was very detailed in its fact-finding, which made it clear that the law would place an undue burden on women’s right to abortion. A divided panel of the conservative Fifth Circuit reversed the lower court, finding that the law would not have as much of a negative impact on abortion access as with Texas. But the two-judge majority’s reasoning only worked by changing the underlying facts, and disregarding the factual record and conclusions found by the lower court.
That is the exact opposite of how federal courts are supposed to work in the United States. In our system of justice, the model is that appeals courts only decide questions of law based on the factual record before them. They are not there to re-try the facts. For instance, a convicted bank robber can appeal to a circuit court, but not on the basis that she didn’t do it because she was in another city at the time of the robbery: That question has already been decided at the trial court level: She was at the bank. The appeals court can only answer legal questions such as whether certain evidence should have been excluded, unless the appeals court concludes that the lower court’s factual findings were “clearly erroneous,” an extremely high hurdle. This allocation of responsibilities is central to our judicial system.
As the dissenting Fifth Circuit judge wrote:
On a robust trial record after conducting a six-day bench trial, the district court documented its findings of benefits and burdens in a lengthy and detailed opinion. The divergence between the findings of the district court and the majority is striking—a dissonance in findings of fact inexplicable to these eyes as I had not thought that abortion cases were an exception to the coda that appellate judges are not the triers of fact. It is apparent that when abortion comes on stage it shadows the role of settled judicial rules.
Translation: The Fifth Circuit majority threw the rule of law and proper appeals court procedure out the window.
And now they have been joined by Justice Cavanaugh (spelled with a “C” for Susan Collins, whose stated trust in his assurances on abortion rights was absurd).