Trump Judge Helps Ban Abortions in Texas

      Kyle Duncan became a star in conservative legal circles by litigating, as counsel to the Becket Fund for Religious Liberty, such culture war issues as abortion rights, same-sex marriage, and the Obamacare regulation requiring employers to provide contraception coverage in employee health plans. Duncan achieved his only outright win on those issues by helping steer the so-called Hobby Lobby case toward the Supreme Court's eventual decision in 2014 allowing religiously motivated employers an exemption from the contraception mandate. His efforts failed to stop same-sex marriage or make significant inroads on reproductive rights.
      Now as a federal appellate judge, however, Duncan cast the decisive vote last week [March 30] on a three-judge panel to ban abortions in Texas, at least for the time being. Duncan, nominated by President Trump and confirmed by the Senate two years ago on a party-line vote, joined with another Republican appointee to let Texas ban abortions under a phony argument that abortions divert needed medical supplies and personnel from combating the coronavirus pandemic.
      Texas's Republican governor, Greg Abbott, and Republican attorney general, Ken Paxton, are among the politicians in half a dozen red states who have signed up with anti-abortion groups to exploit the pandemic as the pretext for shuttering abortion clinics. A Republican-appointed federal judge in Texas blocked Abbott's order as violating the Supreme Court's decisions protecting abortion rights. "Regarding a woman's right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly," Judge Lee Yeakel wrote in his nine-page ruling. "There can be no outright ban on such a procedure."
      When the state asked the Fifth Circuit Court of Appeals to stay Yeakel's ruling, Duncan ended up on the three-judge panel to consider the request along with a second Republican appointee, Jennifer Elrod, and a Democratic-appointed judge, James Dennis. Duncan voted with Elrod over Dennis's dissent to stay Yeakel's ruling pending further appeals.
      Elrod and Duncan gave no reasons for granting the stay, but Dennis explained that Abbott's order would cause "irreparable harm" to women in Texas seeking an abortion. He went on to stress that as phrased Abbott's order was less than a complete ban.
      "I write separately," Dennis added, quoting Abbott's order, "to make clear that, per the Executive order, 'any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster’ is exempt.”
      Yeakel is one of three federal district court judges in three states to block these moves, including a second Republican appointee, Judge Michael Barrett in Ohio. Barrett concluded in his four-page ruling that the state had failed to show that banning abortions "would save enough masks and other gear for medical workers dealing with the pandemic to outweigh the 'irreparable harm' it would cause to individuals wanting to terminate their pregnancies." Barrett rejected the state's plea to stay his ruling, but the state is now asking the Sixth Circuit Court of Appeals for a stay.
      In Alabama, a Democratic-appointed judge, Myron Thompson, barred the Republican governor's move to ban abortions during the pandemic. Like Barrett, he found the state's claimed interests outweighed by abortion clinics' interests. "The State’s interest in immediate enforcement of the March 27 order — a broad mandate aimed primarily at preventing large social gatherings — against abortion providers does not, based on the current record, outweigh plaintiffs’ concerns," Thompson wrote in his ruling.
      In sum, four of the six federal judges to rule thus far on these pandemic-based abortion bans have rejected the rationales adopted by anti-choice politicians from the anti-abortion groups' playbook. Duncan is in a minority of two to have given interim approval. Three other states have promulgated similar bans: Iowa, Mississippi, and Oklahoma. Legal challenges are expected in those states too.
      Duncan gained his federal judgeship on the basis of a record bereft of significant qualifications other than his ideological warfare on behalf of the religious right. He is one of Trump's record number of lifetime appointments to federal courts of appeals that now comprise more than one-fourth of the seats on the thirteen federal circuits. Many others among the 51 are like him: young, on average five years younger than President Obama's circuit court nominees, and far more political and ideological, as The New York Times showed in an exhaustive analysis of Trump's judges.
      Duncan is one of 18 Trump circuit court judges to have litigated against abortion rights before taking the bench. All but eight of the Trump judges had ties to the conservative-libertarian Federalist Society, and many continue to attend the society's events. Two-thirds of them won Senate confirmation with fewer than 60 votes: the previous threshold for bringing judicial nominees to a floor vote before Republicans changed the rules to ease the way for Trump's two Supreme Court appointments.
      With the presidential election approaching, Senate Majority Leader Mitch McConnell is reported to be urging Republican-appointed judges to retire now to give the president more vacancies to fill. McConnell, it will be recalled, blocked President Obama's Supreme Court nominee Merrick Garland in 2016 because of the impending election. McConnell's hypocrisy is so blatant that even he ought to be embarrassed, however slightly.