The politics of independence

An independent judiciary is the hallmark of a functioning democracy. Judges, especially those primarily responsible for interpreting the Constitution, need to be able to reach decisions based on constitutional principles without undue extraneous political pressure. Naturally, this principle of judicial independence runs up against the democratic theory of government, under which power is based on the consent of the governed. According to Alexander Hamilton, judges were responsible for enforcing the people’s will as expressed in the Constitution and prevent abuses of power by the legislative and executive branches. Ever since the emergence of political parties in the 1790s, however, the impartiality of the judiciary has been compromised by partisanship in the nomination of federal judges. The effect of this partisanship was magnified last week when two federal appeals courts upheld state laws imposing sharp limits on abortion and birth control.

The Fifth Circuit, in the case of Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, reversed in part the district court’s permanent injunction preventing two provisions of H.B. 2 from going into effect. The Texas law requires doctors who perform or induce abortions to have admitting privileges at a hospital within 30 miles of where the abortion is performed or induced, and it limits the use of abortion-inducing drugs to a protocol approved by the Food and Drug Administration. The Circuit Court found that Abbott is likely to succeed on the merits with respect to the hospital privileges provision because the provision does not facially (i.e., based on a plain reading of the text of the bill) impose an undue burden on women seeking abortions in Texas. Planned Parenthood contended at trial that the measure would block 22,000 Texas women’s access to abortion services, and the district court found that 22 counties in the Rio Grande Valley would be left without access to abortion services if the provision went into effect. Ironically, the Circuit Court noted that, since abortions were only performed in 13 of Texas’ 254 counties before H.B. 2 was enacted and since 90 percent of women “would be able to obtain an abortion within 100 miles of their respective residences,” the relevant provisions of H.B. 2 do not impose an “undue burden in a large fraction of the relevant cases.”

The Fifth Circuit’s opinion is plagued by limits in the constitutional doctrine and a problematic definition of the “relevant cases.” First, since the Supreme Court held in 2007 in Gonzales v. Carhart that it is limited to a facial analysis of a statute in determining whether it imposes an undue burden on a woman’s right to choose, the Fifth Circuit here did not have to look at H.B. 2’s legislative history. Even the briefest of glimpses at the conditions of the bill’s enactment would reveal Sen. Wendy Davis’s marathon filibuster to prevent the closure of all but five abortion clinics in Texas, as well as the two special legislative sessions that Gov. Rick Perry called in order to pass the law. H.B. 2 was not passed in order to improve women’s access to safe abortions. It was passed to limit that access. And it closed most of the few clinics that provided access to abortion services in Texas.

Second, the Fifth Circuit completely ignores the population that will be most affected by the new restrictions. In fact, in his reply brief to Planned Parenthood’s appeal to the Supreme Court, Abbott contends that “the closure of abortion clinics cannot be an undue burden absent findings or evidence that patients will encounter a substantial obstacle to obtaining abortions from other providers.” But the need for such a finding is nothing more than legal smoke and mirrors to disguise the law’s purpose to limit access to abortion services. Moreover, the effect on individual patients is inevitable. The typical abortion patient today is no longer the middle-class high school or college student who does not want her life derailed by motherhood. Rather, 20-something single mothers of color are the typical patients. Due to a steady decrease in access to contraception for poor women since the 1990s (before the Affordable Care Act went into effect), 69 percent of women who have abortions have incomes within 200 percent of the poverty line. Travelling 100 miles to get access to abortion services is, plain and simple, an undue burden on these women.

Hon. Priscilla R. Owen, who wrote the opinion for the Fifth Circuit, was confirmed as part of a deal made with Senate Republicans. But earlier this month, even though Democrats control the Senate, President Obama has been unable to get any of his nominations for the D.C. circuit court confirmed because of Senate Republicans’ filibusters. As a result, conservatives are becoming increasingly entrenched in the federal courts. This imbalance threatens the ability of the judiciary to remain independent, and results in morality-based legislation that undermines constitutional principles established by Roe v. Wade and its progeny.