In post-Roe America, U.S. judges render fewer decisions based on legal precedent and more on who nominated them. This is dismantling abortion protections as abortion-related cases creep their way into Trump-peppered circuit courts and the U.S. Supreme Court.
Just recently, a three-judge panel of the federal appeals court in New Orleans sided against the Biden administration in its argument that federal law requires hospitals accepting Medicaid to provide emergency care, including abortion, in states that ban the procedure.
After a gaggle of Trump Supreme Court appointees quashed abortion rights last year, the Biden administration issued federal instructions regarding the Emergency Medical Treatment and Active Labor Act (EMTALA) to ensure the right to an abortion at hospitals and emergency rooms.
If U.S. District Judge James Wesley Hendrix is a right wing plant, he is one of many.
“If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment,” the federal guidelines claim.
But a slew of new Trump judges at the district court level are putting ideology over a woman’s health and blocking attempts for hospitals to follow those instructions.
“EMTALA does not mandate medical treatments, let alone abortion care, nor does it preempt Texas law,” judges wrote in a Jan. 2 decision. The opinion then becomes a 25-page attempt to demote EMTALA to a law against dumping patients when it is, in fact, a rule that covers abortion as well.
Two members of the three-judge panel ruling in that decision are President Trump appointees. The third is an appointee of Republican president, George W. Bush.
Another conservative-aligned Texas appeals court recently affirmed a ruling by U.S. District Judge James Wesley Hendrix, a Federalist Society member and another Trump appointee. Hendrix argued in his opinion that adopting the Biden administration’s instruction would force physicians to place the health of the pregnant person over that of the fetus without having the power to make that call.
The Biden administration made clear last year that it considers Hendrix to be a conservative judicial plant, and it accused Republican Texas Attorney General Ken Paxton of “judge shopping” for Hendrix specifically to nab anti-Biden judicial decisions. But if Hendrix is a plant, he is one of many.
The Texas Supreme Court last month denied a request for an emergency court order allowing Kate Cox, a pregnant woman whose fetus had a fatal diagnosis that also endangered her. Under an army of old, white, male judges, Cox had to leave the state to get the procedure before her pregnancy did permanent damage.
Texas legislators who passed the law blocking Cox from getting her abortion tried to claim it allows life-saving exceptions for which Cox should have qualified, but that’s apparently not the case. Nor was it the case for Amanda Zurawski, who almost died when Texas denied her emergency abortion care despite her pregnancy causing sepsis, nor for Dallas resident Lauren Miller, whose irregular fetus put her at risk and nearly killed its unborn twin.
“Physicians are terrified,” said Molly Duane, senior staff attorney at the Center for Reproductive Rights. “They are risking loss of their license, hundreds of thousands of dollars in penalties and a lifetime in prison. They’re not even sure if they can say the word ‘abortion’ out loud.”
‘Abortion’ is the new “He-Who-Must-Not-Be-Named” in the medical community because of a legion of judges selected solely for their politics.
Judicial watchdog The Brennan Center for Justice argued there is no greater example of political opinion trumping precedent than the U.S. Supreme Court, which first unraveled the strings of Roe with its opinion in Dobbs v. Jackson Women’s Health Organization. Supreme Court Justice John Roberts wrote in his concurring opinion in Dobbs that ‘if it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.’
"Yet on numerous occasions last term, the Court did just that, answering questions it was not asked on the way to fulfilling long-standing conservative policy goals in ways that make the justices look much more like players in the game than referees,” said Brennan Center Senior Counsel Douglas Keith.
Keith added that SCOTUS further undermined its legitimacy by tossing precedent out the window. Judges generally buttress their legitimacy by writing opinions based upon older opinions, but many of the Court’s most painful decisions have arrived courtesy of its notorious shadow docket, which it used to dismember lower court decisions against gerrymandering, public safety and, of course, abortion access.
And the court did this “in ways that furthered conservative or Republican interests without full briefing, oral argument, or much reason for the public to understand the decisions as motivated by anything but partisanship,” Keith explained.
Decisions in the shadow docket contain very little explanation, only orders. It’s no surprise then that public opinion no longer sees the legal system as an independent body. It’s just another political branch now, one that renders decisions based on who stuffed the judges' robes. The public perceived the U.S. Supreme Court to be in even worse shape by being a political body with no ethical anchor. A POLITICO | Morning Consult poll shows three-in-four voters want Supreme Court justices bound to some sort of ethics code.
A new code won’t reverse the worst of this damage, however. Decisions in the post-Roe world prove legal precedent takes second place to a judge’s political leaning. The only thing to do now is treat the courts like the Federalist Society has been treating them for years: as a ball to grab in order to win the big game--and vote like it.