In the latest blow to a line of state laws attempting to discourage women from having an abortion, the U.S. Court of Appeals for the Eighth Circuit struck down much of a South Dakota law requiring doctors to provide women seeking an abortion with a series of scientifically questionable claims about abortion, and the court defanged another provision that appears designed to conscript doctors as anti-abortion propagandists. Under the law as written:

The written advisories required by § 7(1) are to inform the patient

(b) That the abortion will terminate the life of a whole, separate, unique, living human being . . . .

(c) That [the patient] has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota;

(d) That by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated . . . .

The advisory must further contain “[a] description of all known medical risks of the procedure” (the risk advisory). That description must include “[i]ncreased risk of suicide ideation and suicide” as a known risk of abortion.

The court struck down the suicide instruction after a lengthy discussion of how it has little if any basis in science. “By compelling untruthful and misleading speech,” the court explained, “the advisory also violates doctors’ First Amendment right to be free from compelled speech that is untruthful, misleading, or irrelevant.” For this reason, the Eighth Circuit decision closely maps a decision earlier this week which struck down a similar Texas law forcing doctors to engage in anti-abortion advocacy.

The most intriguing portion of the opinion, however, is how the court handled the bizarre requirement that doctors tell their patients that abortion will terminate her “existing constitutional rights” with regards to her relationship with the fetus. At oral argument, the state argued that this provision “can be taken to mean that the Constitution protects a woman from being forced to have an abortion,” so the court held them to that word. Under the Eighth Circuit’s decision, the Court held that the law merely “requires a statement that the woman seeking abortion is legally and constitutionally protected against being forced to have an abortion.”

Because a previous Eighth Circuit decision upheld the even more bizarre language about “the life of a whole, separate, unique, living human being,” that provision of the law is still in effect.

The amount of executions held in Texas during Gov. Rick Perry’s (R) 11 years in office has come under scrutiny in the early stages of his presidential campaign, most notably for the case of Cameron Todd Willingham, who was convicted of murdering his three daughters and put to death despite evidence showing that he was likely innocent of the crimes. But even as the Willingham case receives the most notice, many of Perry’s decisions regarding execution have begun to garner attention.

Texas has held 234 executions on Perry’s watch, more than the next two states combined have executed since the death penalty was restored 35 years ago. While Perry can only grant clemency from death sentences if it is recommended by the Texas Board of Pardons and Paroles, he has rarely used that power. According to the Texas Tribune, Perry has commuted only 31 death sentences, and 28 of those resulted from a 2005 Supreme Court case outlawing the execution of juveniles. Meanwhile, he has allowed a host of controversial executions to go forward, the Tribune reported today:

JUVENILES: According to the Tribune, three people who were juveniles at the time of their crime were executed between 2000, when Perry took office, and 2005, when the Supreme Court banned the execution of juveniles. Before Napoleon Beazley, who committed a murder at 17, was executed, 18 state legislators wrote Perry asking him to grant clemency, and the trial judge who eventually had to sign his execution order asked Perry to commute the sentence to life in prison. Perry’s response: “To delay his punishment is to delay justice.”

MENTALLY DISABLED: Ten executions during Perry’s tenure have involved serious questions about the prisoner’s mental health and stability. One was Kelsey Patterson, who was judged as mentally fit by a doctor known as “Dr. Death” because he rarely found patients mentally unfit for trial. During his trial, Patterson testified about having devices planted in his head by the military, and once in prison, he sent incoherent letters to courts. The Board of Pardons and Paroles recommended to Perry that he grant clemency, but Perry rejected the recommendation. Another was James Clark, whose final statement was, “Howdy.” Two Texas prisoners with mental health concerns have been executed in 2011.

INADEQUATE COUNSEL: Five men executed since 2000 have had major questions about the adequacy of their legal counsel, including Leonard Uresti Rojas. The appellate attorney appointed to Rojas was on probation with the state bar, suffered from mental illness and missed multiple deadlines to file appeals on Rojas’ behalf. New attorneys took Rojas’ case before the Court of Appeals asked Perry to stay the execution but were denied. After the execution, an appeals court judge wrote a dissenting opinion against the court, saying Rojas’ attorney had “neglected his duties.”

In addition, Perry has overseen the executions of seven foreign nationals and two men who were accomplices but did not actually commit murder.

Perry’s statewide opponents have had little success in using Perry’s execution record against him. In her unsuccessful attempt to defeat Perry in the 2010 gubernatorial primary, Sen. Kay Bailey Hutchison (R) brought together a focus group to find out if Perry’s death penalty record was a point of vulnerability, only to have one respondent tell her campaign, “It takes balls to execute an innocent man.”

But Perry’s criminal justice record is now making its first major news during his presidential campaign. A Texas inmate named Duane Edward Buck, who is set to be executed Sept. 15, has petitioned Perry for clemency from his death sentence. Though Buck’s guilt is not in question, the way the prosecution secured his death sentence is. To prove Buck’s “future dangerousness” and secure the death sentence, prosecutors used the testimony of a psychologist who claimed that Buck was more dangerous simply because he was black.

The case, tried in 1995, was protested by Sen. John Cornyn (R), who was serving as the state’s attorney general at the time. Perry has not yet commented or made a decision regarding Buck’s clemency request. But with his criminal justice record playing a larger role in the narrative around his presidential campaign, and with voters and politicians becoming more conscious of both the social justice and budgetary costs of the increasingly expensive death penalty, it will be interesting to see if the case of Duane Buck becomes one where Perry stands up for justice, or if it will be another blotch on an already spotty record.

One of the few not-crazy ideas in Rick Perry’s book Fed Up! is a proposal to limit each Supreme Court justice’s term to 18 years and stagger the terms so that a new justice is appointed every two years. This is not a terrible idea, and it is embraced by a number of very prominent liberals. Jonathan Chait makes the case:

The current system of lifetime tenure creates real problems. Huge policy swings hinge on the simple health and longevity of Supreme Court justices. This results in very old justices clinging to their seats until a sufficiently friendly president can take office. It also gives presidents an incentive to nominate the youngest possible justice who can be confirmed, as opposed to the most qualified possible justice. And eliminating some element of the sheer randomness by which each party gets to appoint justices would tend to reduce the chances of the court swinging too far one way or another from the mainstream of legal thought.

So, unlike Perry’s indefensible claim that Medicare and Social Security are unconstitutional, reasonable people can actually disagree on whether we should amend the Constitution to eliminate life tenure on the Supreme Court. Nevertheless, the downside of term limits outweighs the upside.

Chait suggests that Perry’s proposal will reduce the problem of “the court swinging too far one way or another from the mainstream of legal thought,” but it’s pretty clear that the opposite is true. Under Perry’s proposal, every two-term president would appoint four justices — just one shy of the amount necessary to control a majority of the Supreme Court. That means that if one of the five other justices dies — as Chief Justice Rehnquist did during the Bush Administration — or takes early retirement — as Justice O’Connor did while George W. Bush was president — a single president’s nominees will have total control over the Constitution.

In the Bush Administration, this would have meant the near totally elimination of civil liberties for suspected terrorists — as that was the single most important constitutional issue to President Bush. Imagine, however, an America where Rick Perry serves two terms and is allowed to appoint a fifth justice. Perry doesn’t just think that Medicare and Social Security are unconstitutional, he also rejects the constitutional basis for “federal laws regulating the environment, regulating guns, protecting civil rights, [...] creating national minimum wage laws, [and] establishing national labor laws.” If five Perry justices joined the Supreme Court, America would become a far more cruel nation almost as fast as you can say “writ of certiorari granted.”

One of the primary roles served by our Supreme Court is maintaining the stability of American law. This occurs in part because judges are supposed to be concerned with precedent, but it also occurs in part because justices serve a really long time. There are certain downsides to this longevity, but the cost of allowing one president with an extremist vision of the Constitution to effectively seize control of our founding document is too great to more forward with Perry’s specific proposal.

Analogies between Texas Gov. Rick Perry (R) and Confederate President Jefferson Davis are rather obvious in light of Perry’s suggestion that Texas might secede from the union and his wholehearted embrace of the union-destroying doctrine of nullification. Nevertheless, Speaker John Boehner’s (R-OH) former staffer Scott Galupo spots an unexpected similarity between how Davis and Perry view the Constitution:

I’m curious what Gov. Rick Perry and his fans think about the Constitution of the Confederate States of America. . . . [I]f you subtracted the slavery bits—as far as Perry (and, for that matter, many likeminded conservatives) is concerned—what’s not to like?

It included a line-item veto for the president. It prohibited protective tariffs (free trade!). It rejected Henry Clay-style federal financing of internal improvements (no stimulus!).

Galupo is on to something because, as it turns out, Rick Perry’s understanding of the Constitution is a whole lot closer to the Confederate Constitution that it is to anything resembling the Constitution of the United States:

• Social Security and Medicare. Rick Perry thinks that Medicare and Social Security are unconstitutional, but America’s Constitution empowers our nation to “lay and collect taxes . . . and provide for the common defense and general welfare of the United States” — a power which unambiguously enables it to enact essential programs such as Social Security and Medicare. The Confederate Constitution only permitted its congress to “lay and collect taxes, duties, imposts, and excises for revenue, necessary to pay the debts, provide for the common defense, and carry on the Government of the Confederate States.” Without the power to “provide for the general welfare,” Medicare and Social Security would be unconstitutional in the Confederacy.
• Infrastructure: The U.S. Constitution permits elected officials to build bridges, schools and other internal projects within a state. The Confederate Constitution, however, forbids its congress from “appropriat[ing] money for any internal improvement intended to facilitate commerce.” Such a ban would not only eliminate earmarks, which Perry falsely claims are “an unconstitutional perversion” on page 64 of his book Fed Up!, it would also have forbidden much in the way of economic stimulus — something Perry vehemently opposes.
• Presidential Power: In 2006, Perry called for expanding President Bush’s power by granting him a line-item veto enabling him to unilaterally alter federal appropriations. Line-item vetos are unconstitutional under the U.S. Constitution, but the Confederate Constitution provides that the President may “approve any appropriation and disapprove any other appropriation in the same bill.”

In other words, there seems to be a pretty good explanation for why Perry recently published Fed Up!, an anti-government manifesto claiming that pretty much everything that protects ordinary Americans’ ability to live fruitful and productive lives is unconstitutional. He must have been working off the wrong constitution.