Judicial Activism Bush Style

Ellen Marshall

Time and again, the battle cry of “judicial activism” has rallied the conservative troops. These words have been used to motivate the right-wing base to turn out for votes, and they have been used to demean an entire branch of government. President Bush and his staff have often raised concerns about “activist courts”.

Meanwhile, in some alternate universe... The new make up of the Supreme Court had led the Bush Administration to push for some judicial activism of its own. The Administration doesn’t like an earlier Supreme Court decision – or the decisions from two different appeals courts – on cases related to what they call “partial-birth abortion” (though that term has no medical definition…but that is another story for another time). In the past the Supreme Court said that women have a right to have an abortion to protect their own health. But now that the Administration has gotten some of its own nominees on the Supreme Court, it seems that the time is ripe for one more attempt to get their kind of judicial activism – that is, to overturn a precedent.

Time and again, the battle cry of “judicial activism” has rallied the conservative troops. These words have been used to motivate the right-wing base to turn out for votes, and they have been used to demean an entire branch of government. President Bush and his staff have often raised concerns about “activist courts”.

Meanwhile, in some alternate universe… The new make up of the Supreme Court had led the Bush Administration to push for some judicial activism of its own. The Administration doesn’t like an earlier Supreme Court decision – or the decisions from two different appeals courts – on cases related to what they call “partial-birth abortion” (though that term has no medical definition…but that is another story for another time). In the past the Supreme Court said that women have a right to have an abortion to protect their own health. But now that the Administration has gotten some of its own nominees on the Supreme Court, it seems that the time is ripe for one more attempt to get their kind of judicial activism – that is, to overturn a precedent.

And the Supreme Court agrees. It has agreed to re-rule on this issue. The first step has been taken. Sometime this Fall, we will likely learn just how far they will go.

The merits of this case are critical – and will be debated here and in other venues in the upcoming months. But before we get started in that discussion, let’s just take a moment to remember that the very reason President Bush has worked so diligently to fill the courts with his picks is so he could have the kind of judicial activism he wants – even if it undermines years of legal standing.

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Roundups Law and Policy

Gavel Drop: The Fight Over Voter ID Laws Heats Up in the Courts

Jessica Mason Pieklo & Imani Gandy

Texas and North Carolina both have cases that could bring the constitutionality of Voter ID laws back before the U.S. Supreme Court as soon as this term.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts

Texas Attorney General Ken Paxton intends to ask the U.S. Supreme Court to reinstate the state’s voter ID law.

Meanwhile, according to Politifact, North Carolina attorney general and gubernatorial challenger Roy Cooper is actually saving taxpayers money by refusing to appeal the Fourth Circuit’s ruling on the state’s voter ID law, so Gov. Pat McCrory (R) should stop complaining about it.

And in other North Carolina news, Ian Millhiser writes that the state has hired high-powered conservative attorney Paul Clement to defend its indefensible voter ID law.

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Alex Thompson writes in Vice that the Zika virus is about to hit states with the most restrictive abortion laws in the United States, including Alabama, Louisiana, Mississippi, and Texas. So if you’re pregnant, stay away. No one has yet offered advice for those pregnant people who can’t leave Zika-prone areas.

Robin Marty writes on Care2 about Americans United for Life’s (AUL) latest Mad Lib-style model bill, the “National Abortion Data Reporting Law.” Attacking abortion rights: It’s what AUL does.

The Washington Post profiled Cecile Richards, president of the Planned Parenthood Federation of America. Given this Congress, that will likely spur another round of hearings. (It did get a response from Richards herself.)

Kimberly Strawbridge Robinson writes in Bloomberg BNA that Stanford Law Professor Pamela Karlan thinks the Supreme Court’s clarification of the undue burden standard in Whole Woman’s Health v. Hellerstedt will have ramifications for voting rights cases.

This must-read New York Times piece reminds us that we still have a long way to go in accommodating breastfeeding parents on the job.

News Law and Policy

Federal Judge Guts Florida GOP’s Omnibus Anti-Choice Law

Teddy Wilson

"For many people, Planned Parenthood is the only place they can turn to,” said Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away."

A federal judge on Thursday permanently blocked two provisions of a Florida omnibus anti-choice law that banned Planned Parenthood from receiving state funds and required annual inspections of all clinics that provide abortion services, reported the Associated Press.

U.S. District Judge Robert Hinkle issued an order in June to delay implementation of the law.

“The Supreme Court has repeatedly said that a government cannot prohibit indirectly—by withholding otherwise-available public funds—conduct that the government could not constitutionally prohibit directly,” Hinkle wrote in the 25-page ruling.  

Thursday’s decision came after Republican Gov. Rick Scott’s administration decided not to pursue further legal action to defend the law, and filed a joint motion to end the litigation.

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Hinkle issued a three page decision making the injunction permanent.

HB 1411, sponsored by Rep. Colleen Burton (R-Lakeland), was passed by the Republican-controlled state legislature in March.

The judge’s ruling nixed provisions in the law that banned state funding of abortion care and required yearly clinic inspections. Other provisions of the law that remain in effect include additional reporting requirements for abortion providers, redefining “third trimester,” and revising the care of fetal remains.

The GOP-backed anti-choice law has already had a damaging effect in Palm Beach County, where Planned Parenthood was forced to end a program that focused on teen dropout prevention.

Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida, said in a statement that the ruling was a “victory for thousands of Floridians” who rely on the organization for reproductive health care.

“For many people, Planned Parenthood is the only place they can turn to,” Zdravecky said. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away.”

A spokesperson for Scott told Reuters that the administration is “reviewing” the decision.

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