Eight Things You Should Know About The Court That Will Decide If Texas’ Abortion Ban Is Constitutional

On Friday, the Texas Senate passed a series of restrictions that will ban abortions after 20 weeks and that are likely to shut down many of Texas’ abortion clinics by forcing them to comply with prohibitively expensive regulations. The bill already passed the state house and Gov. Rick Perry (R-TX) is expected to sign it.

While the Texas law will inevitably be subject to a constitutional challenge alleging that it imposes an “undue burden” upon reproductive freedom in violation of the Supreme Court’s decision in Planned Parenthood v. Casey, this challenge will eventually be decided by one of the most conservative courts in the country. Here’s what you need to know about the United States Court of Appeals for the Fifth Circuit, which will weigh the fate of Texas’ new law:

1. Former Chief Judge Is Under Investigation For Racism

Judge Edith Jones, the former chief judge of the Fifth Circuit who continues to hear a full caseload as an active judge on the court, is currently the subject of a formal ethics review regarding allegedly racist and otherwise inappropriate comments she made to a gathering of conservative law students. Jones allegedly claimed that African Americans and Hispanics are predisposed to violent crime, and that the death penalty is a public service because it allows an inmate to “make peace with God.” At the request of the Fifth Circuit’s current chief judge, conservative Chief Justice John Roberts assigned the investigation into Jones’ conduct to the Judicial Council of the District of Columbia Circuit.


2. The Court Is Restricting Women’s Right To Choose

The Fifth Circuit handed down a number of recent decisions upholding anti-abortion laws. The court, in an opinion by Judge Jones, reinstated a Texas law that effectively forced doctors to make statements intended to convince women not to have an abortion. Another opinion permitted Texas to move forward with plans to defund Planned Parenthood. Jones also authored a concurring opinion urging the Supreme Court to “re-evaluate Roe and Casey.”

3. Requiring A High School Cheerleader To Cheer For Her Alleged Rapist

After a sixteen year-old high school cheerleader was allegedly “dragged into a room, thrown onto the floor by several youths and raped by Rakheem Bolton, a star on the school’s football and basketball teams,” she refused to cheer for Bolton at a basketball game (Bolton later pled guilty to the lesser charge of simple assault). After the school removed her from the cheerleading squad for refusing to cheer for her alleged rapist, she sued the school under multiple constitutional theories. The Fifth Circuit did not simply rule against her, it ordered her to pay sanctions to the school for filing this lawsuit.

4. Conflicts Of Interest

Fifth Circuit Judge Priscilla Owen took thousands of dollars in campaign donations from Enron when she sat on the Texas Supreme Court, then wrote an opinion reducing Enron’s taxes by $15 million. Judges Jerry Smith and Eugene Davis ruled in favor of the oil industry in a major drilling moratorium case after they attended expense-paid “junkets for judges” sponsored by an oil industry funded organization. Not to be outdone, Judge Edith Clement sits on the board of this organization (which recently abandoned its junkets for judges program) despite an opinion from an official federal judicial ethics committee saying that her membership on this board is unethical. Indeed, in a sign of how reliably pro-oil the Fifth Circuit’s decisions have been, House Republicans led an effort to pass a bill that would have required certain oil-related cases to be brought exclusively in the Fifth Circuit.

5. Stripping Rights For Undocumented Immigrants

A Fifth Circuit opinion strongly suggested that undocumented immigrants have no Fourth Amendment rights — “neither this court nor the Supreme Court has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally” — thus potentially depriving these individuals of their right to be free from lawless searches and seizures. Another Fifth Circuit opinion held that a woman could be deported to Albania, where mobsters had already kidnapped, beaten and shot her husband, despite the fact that federal law grants asylum to non-citizens whose “life or freedom would be threatened” because they belong to a particular family. The court reasoned that, even though the mob would target to inflict pain on her husband, who survived the mob’s attack on him, she wasn’t entitled to asylum because she could divorce her husband.

6. Throwing An Anti-Obama Tantrum

Shortly after President Obama criticized the idea that it would appropriate for the Supreme Court’s Republican majority to strike down his signature health care law, Fifth Circuit Judge Jerry Smith lashed out against a career Justice Department attorney arguing a case before his court. In an apparent attempt to embarrass the president by forcing the Justice Department to contradict Smith’s uncharitable interpretation of Obama’s remarks, Smith ordered the attorney to provide a three page letter explaining whether DOJ agreed with the least complementary possible interpretation of the President’s comments. The Justice Department eventually responded to Smith in a letter signed by Attorney General Eric Holder, which concluded that “[t]he President’s remarks were fully consistent” with longstanding principles of law.

7. Telling Progressives To “Shut Up”

During an oral argument when Judge Jones served as the court’s chief judge, Jones cut off a series of questions one of her few left-of-center colleagues posed to a prosecutor — telling Judge James Dennis “I want you to shut up.” According to one source, she also slammed her hand down on the table, stood up halfway from her chair, pointed to the door and asked Judge Dennis “would you like to leave?’ in the middle of a court hearing.

8. Upholding Death Sentences For Men With Sleeping Lawyers

A panel of the Fifth Circuit held that a man could be executed despite the fact that his lawyer slept through much of his trial. Although this decision was eventually reversed by the full court, five judges joined an opinion saying that the man could be executed despite his sleeping attorney.

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Of course, should this very conservative court uphold the Texas abortion ban, it is possible that the Supreme Court could reverse that decision. Women in Texas probably should not expect such an outcome, however. The Supreme Court’s most recent major abortion decision held that the right to choose should be shrunk in part because “it seems unexceptionable to conclude some women come to regret their choice to abort.”