The one silver lining facing advocates seeking to halt several provisions of a Texas law limiting access to abortion is that, when the United States Court of Appeals for the Fifth Circuit decides this case, their decision may not be unanimous. Judge Stephen Higginson, an Obama-appointee to the Fifth Circuit, is one of the three judges who will consider this case on Friday. So, when the panel of judges issues their opinion, Higginson might write a dissent arguing that Texas’s law is unconstitutional.
There’s little chance that this position will win over another member of the panel, however, as the other two judges who will hear the case are staunch conservatives.
Judge Jennifer Walker Elrod has twice voted to allow Texas to enforce the law restricting abortions, most recently when she voted to uphold a provision of the law requiring doctors who perform abortions to have admitting privileges in a nearby hospital. When Elrod was selected to hear that case, we described the three judges who were selected to hear it as a “nightmare federal appeals court panel” for pro-choice advocates. It is unlikely that her views on abortion have changed much since then.
The worst news for the lawyers challenging Texas’s law, however, may be the fact that Judge Jerry Smith is the third judge who will hear their case. In 2012, just hours after a lower court judge issued an order suspending funding cuts to Planned Parenthood, Smith issued a two sentence decision blocking that order. What made Smith’s action in this case unusual, however, is that he did so in a single-judge order, something the Federal Rules of Appellate Procedure only permit in “an exceptional case in which time requirements make that procedure impracticable.” It’s not clear what exceptional time constraints prevented Smith from consulting with two of his colleagues before issuing this order, as is the normal process in a federal appeals court.
Smith is quite open about his affinity for hard-line conservatism. At an event sponsored by the conservative Federalist Society in 2013, Smith described his first meeting with Judge J. Harvie Wilkinson, a well-regarded Republican judge from Virginia who was on President George W. Bush’s shortlist for an appointment to the Supreme Court. “I was a right-wing activist,” Smith joked, and Wilkinson “was an establishment Republican.”
Indeed, the self-described former “right-wing activist” has, at times, been outright belligerent to attorneys associated with causes he disagrees with. In 2012, after President Obama offered an inartfully worded explanation for why the Supreme Court should uphold the Affordable Care Act, Smith ordered a rank-and-file Justice Department attorney who appeared in his court shortly thereafter to produce a three page, single-spaced letter explaining that courts have the power to strike down federal laws. The Justice Department eventually responded to this unusual homework assignment with a letter signed by Attorney General Eric Holder, in what may have been an attempt to insulate the relatively junior attorney caught in the crossfire between Smith and Obama from the career consequences of being in such a position.
So there is unlikely to be any good news for women seeking abortions in Texas once Smith and Elrod decide this case. Late last month, federal District Judge Lee Yeakel halted provisions of the Texas law requiring existing abortion clinics to comply with expensive new architectural requirements — a provision that, when combined with the other provisions of the Texas law, would reduce the number of abortion clinics in Texas from 40 to 7 or 8. Yeakel’s decision, however, is unlikely to survive much longer now that Smith and Elrod are assigned to the case.