Fifth Circuit upholds HB2

The Texas Tribune reports that HB2, the omnibus anti-abortion bill passed last year and famously filibustered by Wendy Davis, has been upheld as constitutional by the Fifth Circuit, a Federal Appeals Court with jurisdiction over Texas. A three-judge panel, consisting of two appointees of George W. Bush and one of Ronald Reagan, unanimously endorsed the constitutionality of the bill. Among the provisions challenged in this case were one requiring the abortion doctors to receive admitting privileges at a nearby hospital and another requiring inducing drugs to be taken in person the day before. Both requirements have been deemed as excessive by pertinent doctoral societies and otherwise repudiated by medical professionals as simply opaque ways of closing abortion clinic. Since the passage of this law, a plethora of clinics west and south of San Antonio  have shut their doors.

Not challenged in this ongoing lawsuit is the 20 week ban on abortion. A fourth provision, arguably the most controversial, that requires clinics to adhere to the same standards as ambulatory surgical centers does not go into effect until later this year and thus was not challenged. Back in October, a Federal Judge (another Bush appointee) in Austin ruled components of the law unconstitutional. However, a few days later, the Fifth Circuit stayed this ruling.

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Hobby Lobby case

First off, I invited my readers to gloss over profiles in both The New York Times and The Washington Post, which were both penned today on the infamous Hobby Lobby case. The case, which reached oral argument at the United States Supreme Court today, namely revolves around the “contraception mandate” in Obamacare. What this provision does, simply put, is to require employers cover birth control on their employee health insurance. However, big exceptions have been made for both religious institutions (i.e., churches) and non-profits with some religious influence (e.g., Catholic Schools or Hospitals). Today, Hobby Lobby –a privately run for-profit corporation– (along with another similar business) argues that it violates both the 1st Amendment and Federal Statutes to compel it to cover specific forms of birth control for their employees.

However, this is where the woeful misinformation of the mainstream press becomes all too pervasive. The argument Hobby Lobby makes IS NOT that they refuse to condone the casual sex allegedly resulting from contraception, it all has to do with abortion. Hobby Lobby specifically is condemning both emergency contraception (Plan B) and Intrauterine Devices (IUD), arguing they occur after fertilization, thus ending a unique life. The problem with this, of course, is that neither drug actually causes abortion.

 

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Texas gay marriage ban struck down

The Texas Tribune reports that Federal Judge in San Antonio has struck down Texas’ constitutional ban on gay marriage. The decision, written by Judge Orlando Garcia (an appointee of President Clinton), found the provision inconsistent with the 14th Amendment of the Constitution, which mandates equal protection and due process under law. Judge Garcia has served on the Federal Judiciary since 1994, and previously served both as a Justice on the State Court of Appeals (1991 to 1994) and as a member of the Texas House of Representatives (1983 to 1991). Both were elected offices he held as a Democrat.

Judge Garcia also stayed his own ruling, pending appeal. Attorney General Greg Abbott, one of the key defendants in this case, released a somewhat brief statement on the subject, wherein he declared his intention to appeal the case to the Federal Appeals Court. Of note is just how lightly Attorney General Abbott tread on the subject. Among his quotes were that there were “good, well meaning people” on either side of the issue. In my opinion, that was the most telling tidbit on the subject, to see hard-right Republicans such as Abbott realize and accept the inevitable, that this issue is not going away.

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Davis for gay marriage

The San Antonio Express-News reports that, earlier today while addressing the paper’s editorial board, State Senator Wendy Davis (the presumptive Democratic nominee for Governor) explicitly announced her support for gay marriage for the first time. Further, she expressed her opposition to continued support of Texas’ Defense of Marriage Act against suits in Federal Courts and called on her opponent, Attorney General Greg Abbott, to stop defending what she called an unconstitutional law.

It’s my strong belief that when people love each other and are desirous of creating a committed relationship with each other that they should be allowed to marry, regardless of their sexual orientation,” Davis told the paper. “I think it’s important, and I think that people across this country are evolving on [gay marriage] and moving in a direction that demonstrates support for it, so I think it is time to re-open that conversation and ask Texans where they are on it to see if that’s something that we might change legislatively if it doesn’t happen constitutionally.”

The news quickly reached back to Abbott’s campaign, who were very keen to criticize the Davis campaign. A spokesperson called support for gay marriage “the latest whim of the day,” and blasted Davis for instituting “Obama-style” approach to politics. For better or for worse, the idea of state officials picking not a defend state laws or provisions is a tradition that has recently been explicitly condoned by the Supreme Court, specifically in the 2013 case of Hollingsworth v. Perry, wherein both the Governor and Attorney General of California declined to defend the constitutionality of Prop 8.

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Wendy Davis’ new stances

First off, a twofer from the Houston Chronicle. First, the announcement that State Senator Wendy Davis, the presumptive Democratic nominee for Governor, supports both the approval of medical marijuana and its decriminalization for general use. This position would be seen as remarkable for a Texas Democrat who has a history of somewhat overly cautious behavior on these contentious issues. However, a couple of weeks ago, Governor Rick Perry announced his support for limited decriminalization, thereby making the issue much less toxic in the general political landscape. It is worth noting, however, that Attorney General Greg Abbott –the likely Republican nominee for Governor– has not reflected the Governor’s opinion, and those Republicans vying to be the next Lieutenant Governor are actively opposing it.

Davis also said she lacked any “philosophical” objections to legalization, but she did say wanted to “see how this experiment plays out in other states is probably advisable before I could tell you for sure.” The comments were made in an on-the-record interview with the Editorial Board of The Dallas Morning News. It is a good example that, no matter what positions Davis may take that are incongruous with the base, she still has a few tricks up her sleeve.

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VRA could get fixed (in Texas)

The Dallas Morning News reports that a new bipartisan bill introduced in Congress to resurrect the floundering Voting Rights Act would include strong new protections against racial meddling in Texas. As the sagacious may recall, back in June the US Supreme Court ruled 5-4 to gut Section 5 of the Voting Right Act, which required the States of Jim Crow to get any election updates precleared by the Federal Government. The Court declared that the world had changed since the advent of this act in the 1960s, and that racism had been vanquished, thus exclaiming that such an antiquated formula was unconstitutional. Justice Ruth Bader Ginsburg, the dean of the Court’s liberal minority and the author of a scathing dissent in this case, compared it “throwing away your umbrella in a rainstorm because you are not getting wet.”

The Court’s blow to the Voting Rights Act was all the more harmful because it expected Congress to simply pick up the slack and fix the law by provided a new coverage formula for the aforementioned preclearence based on modern statistics. However, getting Congress to do anything is easier said than done. Accordingly, it was a very good sign yesterday when Rep. John Conyers (D-MI) and Rep. James Sensenbrenner (R-WI) introduced a bill that would revive the coverage formula based on those States with recent VRA violations (i.e., Georgia, Louisiana, Mississippi & Texas).

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HB2 trial goes to Appeals Court

Today, a three-Judge panel on the 5th Circuit Court of Appeals will hear oral arguments over the constitutionality of HB2, the omnibus anti-abortion bill most famous for Wendy Davis’ filibuster against it. In October, a Federal Judge in Austin (Lee Yeakel) declared one provision of the law to be unconstitutional. The State immediately appealed the ruling, which was stayed by the Federal Appeals Court. The provision in question, requiring abortion doctors to have admitting privileges at nearby hospitals, went into effect and allegedly caused the closure of a plethora of clinics.

Not included in these proceedings will be the constitutionality of the law’s most onerous restriction, requiring clinics to adhere to the standards of ambulatory surgical centers. That provision does not go into effect until October 1st of this year. The provision requiring women to take an inducing drug at the clinic was found to be largely constitutional while a fourth provision, prohibiting abortion after 20 weeks, was not challenged in the lawsuit.

Most analysts believe that this case will eventually make its way to the Supreme Court, and could end up being a true battle royale for the abortion issues. While I cannot believe the Supreme Court would actually have the naive temerity to overturn Roe, it could very easily neuter it in an backhanded way that would harm countless women. All this would happen in June 2015, after the Fifth Circuit makes a final ruling in the early summer. HB2 proponents are somewhat confident they will prevail at the Fifth Circuit, for reasons I will delineate below:

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