“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Fifth Circuit judges Don Willett, James Ho, Kurt Engelhardt, and Cory Wilson cast deciding votes in a full court ruling that vacated decisions by a three-judge panel and a district court and put into effect for the first time a restrictive Texas law that effectively bans dilation and evacuation (D&E) abortions, the most common method used during the second trimester. The August 2021 decision was in Whole Women’s Health v Paxton.
In 2017, Texas passed a law that banned D&E abortions and made performing them a felony unless women first went through additional procedures that legislators claimed were needed to ensure fetal demise before the abortion. A district court enjoined the law from taking effect, finding after extensive hearings that these procedures were “risky, invasive” and harmful to women and that the law was clearly unconstitutional by imposing an ‘undue burden” on women seeking an abortion. A three-judge panel of the Fifth Circuit affirmed, with Trump Judge Willett dissenting.
The full Fifth Circuit agreed to rehear the case and reversed. Three judges (including Trump judges Duncan and Oldham) were recused, so 14 heard the case. Nine (including the four participating Trump judges) voted to uphold the law, while five dissented. Trump judge Willett co-wrote a plurality opinion, which the three other Trump judges and three others joined, and two other judges agreed with the result.
The plurality opinion criticized the district court for what it called “numerous, reversible legal and factual errors,” such as “disregarding and misreading” Supreme Court precedent. Most fundamentally, the plurality claimed that the record actually shows that “doctors can safely perform D&Es and comply” with the Texas law by first performing the procedures the law requires, which it maintained did not impose an undue burden on people seeking an abortion and “are already in widespread use.” The plurality concluded that the district court committed an “abuse of discretion,” and it did more than reverse the decision and send it back for reconsideration, as appellate courts usually do. Instead, the appellate court itself ruled that the law is valid and should immediately go into effect, without even giving challengers a chance to prove their case according to what the appellate court claimed were the proper legal standards.
The lead dissent by Judge James Dennis showed what was wrong with the plurality opinion. In addition to correcting the many legal errors by the plurality and criticizing its decision to simply put the Texas law into effect without remand to the district court, Dennis took the plurality’s factual conclusions head on. The plurality erroneously “fails to defer to the district court’s well-reasoned and well-supported factual findings” on the burdens imposed by the law, Dennis wrote, as appellate courts are supposed to do. “[I}nstead,” Dennis continued, the plurality is “substituting its own reading of the evidence to make findings of fact in the first instance,” contrary to the proper function of appellate courts. In addition, he went on, those findings are “contrary to the great weight of evidence in the record and place us at odds with virtually every other court to have considered the matter.”
More specifically, Dennis continued, the record and previous rulings showed that the result of the court’s decision and the Texas law would be to force “many women to unnecessarily undergo” a “painful, invasive, expensive” procedure that will cause “significantly elevated risks to the women’s health and well-being” in order to have an abortion. The result will also burden abortion access, Dennis went on, because “many abortion providers will likely decline to perform later-term abortions rather than face the dilemma today’s ruling foists upon them: become a felon or do a risky procedure that is contrary to the doctor’s medical judgment regarding the patient’s best interests.” In addition, Dennis wrote, the court’s decision “ignores” the Supreme Court’s “binding” precedent in the Stenberg case that a state law “prohibiting a standard D&E” like Texas does “imposed an undue burden on a woman’s constitutional right to abortion” and was thus illegal, which should have been “the end of this case.”
This case will clearly harm Texas women and is yet another example of the damage being done to reproductive rights by Trump judges like Willett, Ho, Engelhardt, and Wilson. It is another reminder of the importance to our fight for our courts of the Senate expeditiously confirming fair-minded Biden nominees to our federal courts at all levels who will respect Supreme Court precedent and the right to choose.