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5th Circuit Charts Its Own, Dangerous Course

Letting Texas abortion law take effect without a hearing is just one example, Ruth Marcus writes
By Bob Cronin,  Newser Staff
Posted Sep 1, 2021 7:30 PM CDT
5th Circuit Charts Its Own, Ideological Course
Tony Spell, pastor of the Life Tabernacle Church of Central City, Louisiana, waits outside the Fifth Circuit Court of Appeals in New Orleans in June to present his case challenging coronavirus restrictions.   (AP Photo/Gerald Herbert)

(Newser) – There's a federal appeals court compiling a record like no other, Ruth Marcus writes in an opinion piece in the Washington Post. The 5th Circuit's refusal to hold up the nation's most restrictive abortion law long enough for a district judge to hold a hearing on it is just the latest example from a court that sticks to ideology more than precedent. Republican presidents appointed 12 of the 17 active judges, but the court tilts right even more than that might indicate, one expert said, because the conservative members are way conservative and the liberals aren't way liberal. The result is "as conservative a federal appeals court as any of us have seen in our lifetimes," says Stephen Vladeck, a law professor at the University of Texas.

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Six of the judges were nominated by former President Trump. They include one who said the Supreme Court's ruling backing the right to same-sex marriage "raises a question about the legitimacy of the court." Another, who used the hashtag #CrookedHillary, has said he endorses overturning Roe v. Wade. One of them decried the "moral tragedy of abortion" in an opinion. This court's priorities are pretty clear, and they don't include staying in bounds, as the court above it has demonstrated. The Supreme Court reversed five of seven 5th Circuit decisions in the 2020-21 term and 6 of 7 decisions in the previous term, Marcus notes. "This is a court that goes out of its way to reduce procedural obstacles and give a helping hand for litigants whose causes they favor," she writes.

There's plenty to argue about concerning the Texas law, which Marcus calls not only unconstitutional but "an audacious effort to evade judicial review"—it provides for private citizens to sue anyone who helps a woman obtain an abortion after six weeks of pregnancy. The 5th Circuit declined to hurry its consideration of the matter and issued an order blocking a federal judge who had already scheduled a hearing from holding it. That let the Texas abortion legislation proceed; it became law Wednesday. "It is lunacy to allow a law to go into effect that no one can reasonably argue is constitutional," Marcus writes. You can read the full piece here. (Read more anti-abortion laws stories.)

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