This Day in Liberal Judicial Activism—July 12

by Ed Whelan

2009—In an interview in the New York Times Magazine, Justice Ginsburg offers this, er, interesting comment why she was “surprised” by the Court’s 1980 decision in Harris v. McRae, which ruled that the Hyde Amendment’s exclusion of nontherapeutic abortions from Medicaid reimbursement was constitutionally permissible:

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

Gee, Justice Ginsburg, would you like to tell us more about your views on those “populations that we don’t want to have too many of”?

2016—Reversing the district court, a divided Tenth Circuit panel, with an Obama appointee in dissent, rules that Utah’s Planned Parenthood affiliate is entitled to a preliminary injunction preventing state agencies from discontinuing passing through federal funds to it. Utah governor Gary Herbert had directed state agencies to discontinue the funding in the aftermath of the Center for Medical Progress’s release of videos depicting various Planned Parenthood affiliates’ ugly involvement in harvesting body parts.

Judge Mary Beck Briscoe’s majority opinion reads much like a Planned Parenthood press release. It parrots the group’s deceptive claim that the videos were “selectively edited,” and refers euphemistically to “the health care provider’s fetal tissue donation program.” (Emphasis added.) Yeah, sure, in all its haggling over the prices of the body parts that its abortions—oops, “health care” services—generate, Planned Parenthood was just engaged in a “donation program.” Briscoe obscurely cites (“App.398”) a Huffington Post article as her support for these mischaracterizations.

Briscoe’s legal reasoning is even worse. She concludes that a jury “is more likely than not” to find that Herbert acted to “punish” the Planned Parenthood affiliate for exercising its constitutional rights (rather than for its supposed complicity in the conduct revealed by the videos). But this theory can’t account for why Herbert took no action against the entity during his first six years as governor and instead acted only after the videos were released. Nor does Briscoe accord the district court’s contrary assessment the deference it is owed under the “abuse of discretion” standard of review.

In October 2016, Tenth Circuit judge Neil M. Gorsuch and three colleagues will dissent from his court’s denial of rehearing en banc on the ground that Briscoe’s opinion departed from “this court’s previously uniform practice” on basic questions “concerning our standard of review and the burden of proof” on claims for preliminary injunctive relief.

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