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You are here: Home / Politics / An Unexamined Scandal / Some rights matter, and some don’t

Some rights matter, and some don’t

by Kay|  May 3, 20128:45 am| 38 Comments

This post is in: An Unexamined Scandal, Blatant Liars and the Lies They Tell

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While I know that the punditry have declared the War On Women (WoW) over, that isn’t true and it’s really gotten pretty interesting in Texas. Since we spent a full month debating religious liberty as that term relates to large employers and health insurance plans, I think it’s only fair that we look at the rights in play in Planned Parenthood versus Texas. This is the complaint Planned Parenthood filed in Texas (pdf)

Plaintiffs challenge the federal constitutionality and the state statutory authority of 1 Texas Admin. Code §§354.1361-64 (“Affiliate Rule”and“Rule”), which bars Plaintiffs–family planning providers that do not provide abortion services – from participating in Texas’s Women’s Health Program (“WHP”) because they publicly advocate to protect access to safe and legal abortion and/or affiliate with legally separate entities.

Plaintiffs seek declaratory relief because the Affiliate Rule imposes unconstitutional conditions on their eligibility to continue to participate in WHP. In particular, the Rule disqualifies Plaintiffs from eligibility to participate in WHP because of Plaintiffs’advocacy to protect access to safe and legal abortion and/or Plaintiffs’ affiliation with organizations who advocate to protect access to safe and legal abortion and/or because they area affiliated with legally separate entities that provide and advertise abortions.

The Affiliate Rule, and Tex. Hum.Res. Code §32.024(c-1)if it requires that Rule, violate Plaintiffs’ right to equal protection under the laws because it treats them differently from hospitals licensed under Texas Health and Human Safety Code Chapter 241 that perform or “promote” abortions and/or are “affiliated” with entities that perform and “promote” elective abortion as those terms are defined in the Rule without adequate basis for the differential treatment

Why is Rick Perry attacking the Constitution? This will not stand. Liberty! Unfurl your Gadsden flag, and start marching.

A lot has happened on this, and the upshot is that right now Planned Parenthood won’t be getting paid for providing health care to low income women:

A 5th Circuit judge blocked a ruling that would have let Planned Parenthoods continue participating in a Texas health care program for low-income women.
The stay, granted Monday by Circuit Judge Jerry Smith, came just after U.S. District Judge Lee Yeakel granted a preliminary injunction after he found a likelihood of irreparable harm. The organizations say the new law restricts their First Amendment right to advocate for access to abortions and associate with entities that provide the services, such as the Planned Parenthood Federation of America.
In agreeing with this position Monday, Yeakel said that “the government may not condition participation in a government program or receipt of a government benefit upon an applicant’s exercise of protected rights.”
The new rule may violate fundamental rights provided by the First Amendment, according to the 24-page order.
“By requiring plaintiffs to certify that they do not ‘promote’ elective abortions and that they do not ‘affiliate’ with entities that perform or promote elective abortions, as defined by the rule, Texas is reaching beyond the scope of the government program and penalizing plaintiffs for their protected conduct,” Yeakel wrote. Accordingly, the rule will not withstand constitutional scrutiny, unless Texas comes forth with a compelling interest to justify the rule’s existence.”
Yeakel was less supportive of the claim that the rule infringes on a 14th Amendment right to provide abortion services through legally and financially separate affiliates.
But the judge added that it would be an unconstitutional violation of equal-protection rights for the rule to exempt hospitals that provide abortion services.

We’re familiar with the Fifth Circuit judge that issued the final order:

Last month, Republican Fifth Circuit Judge Jerry Smith pitched a tantrum in open court, demanding that the Department of Justice respond to some imprecise political rhetoric by President Obama in an attempt to embarrass the president. Today, the staunch Republican judge raised further doubt about his ability to separate politics from the law by suspending a decision benefiting Planned Parenthood just hours after it was handed down by another judge.
Yesterday afternoon, a federal trial court in Texas granted a preliminary injunction preventing the state from cutting off women’s health funds to Planned Parenthood. The trial court’s opinion was written by Judge Lee Yeakel — a George W. Bush appointee — and it is 24 pages long, including substantial analysis of difficult constitutional doctrines such as the scope of the First Amendment right to free speech and the “unconstitutional conditions” doctrine. Significantly, the Bush-appointed trial judge was concerned that Texas stripped funds from Planned Parenthood because it disapproved of the organization’s advocacy in favor of women’s health — a direct attack on Planned Parenthood’s First Amendment rights if Yeakel is correct.
This morning, less than 24 hours after Yeakel handed down his decision, Judge Smith handed down a two sentence decision of his own:
IT IS ORDERED that appellant’s motion for stay pending appeal is GRANTED pending further order of this court. This order is entered by a single judge pursuant to FED. R. APP. P. 8(a)(2)(D).

Rights only matter if powerful religious groups that run giant health care entities and back conservative politicians are claiming infringement, apparently.

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38Comments

  1. 1.

    Betty Cracker

    May 3, 2012 at 8:52 am

    I’m hoping those who believe the WoW is over get a big fat surprise in November. Gauging the reaction of people I know, it’s still very much a hot war, and I’m not just talking about my hippie friends.

  2. 2.

    Kay

    May 3, 2012 at 9:00 am

    @Betty Cracker:

    Where are the conservative 1st amendment absolutists on this? Maybe it escaped their attention, huh? Rick Perry is planting his giant state boot on the neck of free speech! The marketplace of ideas is being regulated, by Texas!

  3. 3.

    Egg Berry

    May 3, 2012 at 9:02 am

    Kay,

    could you explain for us non-lawyers why a circuit judge can overrule a district judge?

  4. 4.

    Mudge

    May 3, 2012 at 9:04 am

    @Egg Berry:

    Not Kay, but it is the 5th Federal Circuit Court of Appeals, the level above district court.

  5. 5.

    Punchy

    May 3, 2012 at 9:07 am

    2 sentences to overrule a 24-page analysis? They’re not even trying to hide their intentions anymore, are they?

  6. 6.

    Kay

    May 3, 2012 at 9:11 am

    @Egg Berry:

    This is the rule:

    RULE 8. Stay or Injunction Pending Appeal

    (a) Motion for Stay.
    (1) Initial Motion in the District Court. A party must ordinarily move first in the district court for the following relief:
    (A) a stay of the judgment or order of a district court pending appeal;
    (C) an order suspending, modifying, restoring, or granting an injunction while an appeal is pending.

    So PP did that, then,

    (2) Motion in the Court of Appeals; Conditions on Relief. A motion for the relief mentioned in Rule 8(a)(1) may be made to the court of appeals or to one of its judges.
    (D) A motion under this Rule 8(a)(2) must be filed with the circuit clerk and normally will be considered by a panel of the court. But in an exceptional case in which time requirements make that procedure impracticable, the motion may be made to and considered by a single judge.

  7. 7.

    Someguy

    May 3, 2012 at 9:16 am

    I’m hoping PP wins. If they can manage to establish a precedent that de-funding will crimp First Amendment protected speech and that de-funding efforts are motivated on the basis of PP’s advocacy, then there will be no way the Republicans can de-fund them. It should be helpful for other progressive groups that provide services and also advocate.

  8. 8.

    The Snarxist Formerly Known as Kryptik

    May 3, 2012 at 9:16 am

    And if that wasn’t enough, the GOP is showing their colors by trying to craft a House bill where the states have all the say in how their health care and Medicaid dollars are spent…except when it comes to abortion that is, which is VERBOTEN, FORBIDDEN, NEVER NEVER NEVER YOU GODDAMN LIBERACOMMIE ENCLAVES!!!

    While I doubt this will end up succeeding due to Obama’s veto pen, it still frustrates me, and it doesn’t change the fact either that the GOP keeps fucking winning this issue on the state level like fucking gangbusters.

  9. 9.

    Cacti

    May 3, 2012 at 9:21 am

    Sounds like Judge Jerry is auditioning for a seat on SCOTUS under the next Republican administration.

  10. 10.

    Egg Berry

    May 3, 2012 at 9:21 am

    @Mudge: @Kay: ah, it’s the appeals court. i wasn’t quite sure from the quotes.

  11. 11.

    Glidwrith

    May 3, 2012 at 9:22 am

    @Kay: But how could the judge have made this ruling without someone actually filing for a motion?

  12. 12.

    Roger Moore

    May 3, 2012 at 9:23 am

    @Kay:

    Where are the conservative 1st amendment absolutists on this?

    No such thing. The only Amendment conservatives actually give a fuck about is the Second.

  13. 13.

    Kay

    May 3, 2012 at 9:24 am

    @Someguy:

    If they can manage to establish a precedent that de-funding will crimp First Amendment protected speech and that de-funding efforts are motivated on the basis of PP’s advocacy,

    I wish that were true, but PP were relying on a 2005 decision that said exactly that. PP organized (legally) to comply with Texas demands and that 2005 decision. That’s how they were participating in the womens health program to begin with.

    Texas changed the rule and went ahead anyway.

    Conservatives want to shut them down, both the physical locations and the advocacy arm.

    What I think is interesting is the exception that Texas had to make for hospitals, because if Texas applied the rule they’re applying to PP, any non-religious hospital would be barred from receiving funds.

  14. 14.

    Southern Beale

    May 3, 2012 at 9:25 am

    I asked this downthread but I think it was dead … I’m having a brain fart. There’s a blog term used to describe the principal that at any given time, 22% (or maybe 27%) of the public is batshit insane … I forgot that term, it’s like “Occam’s Razor” but obviously not that … a term like that … it was started by some notable blogger, can’t remember who.

    Anyone? I know I’ve seen it over here before.

  15. 15.

    Face

    May 3, 2012 at 9:27 am

    @Punchy: This seems like a level of disrespect and contempt for his fellow judge that is beyond normal. Can this be re-appealed to the full bench, or is the next stop the USSC? (where we all know the outcome already).

  16. 16.

    Egg Berry

    May 3, 2012 at 9:27 am

    @Southern Beale: the crazification factor. I forget who termed it.

  17. 17.

    dmsilev

    May 3, 2012 at 9:27 am

    @Southern Beale: It’s the Crazification Factor. First coined here.

  18. 18.

    peach flavored shampoo

    May 3, 2012 at 9:28 am

    He’s acting as Judge, Jerry, and Executioner.

  19. 19.

    The Snarxist Formerly Known as Kryptik

    May 3, 2012 at 9:28 am

    @Southern Beale:

    Crazification Factor, coined by John Rogers. Check under the Lexicon at the top of the page.

  20. 20.

    Steve

    May 3, 2012 at 9:30 am

    @Face: I assume PP can request that a three-judge panel review the order.

  21. 21.

    arguingwithsignposts

    May 3, 2012 at 9:33 am

    So, what would be the shorter on this ruling? Because I really don’t have time to wade through all that legalese.

  22. 22.

    amk

    May 3, 2012 at 9:33 am

    @Southern Beale: bushbots ?

  23. 23.

    Dork

    May 3, 2012 at 9:35 am

    Is it possible for a Circuit Judge to review a 24 page document, understand the case, and review the legal underpinnings in less than 1 workday? Or was this just a kneejerk execution of Cleek’s Law?

  24. 24.

    Kay

    May 3, 2012 at 9:38 am

    @arguingwithsignposts:

    So, what would be the shorter on this ruling? Because I really don’t have time to wade through all that legalese.

    PP doesn’t get funding from the Texas program as of April 30th. They say they will continue to provide care for their current patients pending further hearing.

  25. 25.

    Southern Beale

    May 3, 2012 at 9:42 am

    @The Snarxist Formerly Known as Kryptik:

    Thanks, I was actually reading the Lexicon but realized since I couldn’t remember the name of the meme, I’d be reading the Lexicon all day.

    But yes that was it!

  26. 26.

    West of the Cascades

    May 3, 2012 at 9:44 am

    @Punchy: Punchy — just to clarify, the two-sentence ruling doesn’t overrule the district court’s opinion. Basically, a “stay” means a temporary suspension of the district court’s opinion and order until a full panel of three judges in the court of appeals can hear and decide Texas’s appeal. likely they will put the parties on a rocket briefing schedule and try to hold argument on the case within four to six weeks.

    In practical terms: Texas prohibited funding of Planned Parenthood. Then Planned Parenthood obtained an opinion and order from the district court forcing Texas to continue making payments to Planned Parenthood. Judge Smith has now said that Texas does not have to follow that order (and pay out money), until the parties have briefed and argued the case before the court of appeals.

    It IS unusual, but not that unusual, for a stay to be granted pending appeal. Recall that the Ninth Circuit issued a stay of Judge Walker’s decision that Proposition 8 (California’s gay marriage case), which stopped California from having to grant marriage certificates based on Judge Walker’s finding that Prop 8 was unconstitutional — but ultimately agreed with his decision.

  27. 27.

    Steve

    May 3, 2012 at 9:50 am

    For anyone legally inclined enough to want the details, I have made Planned Parenthood’s motion to lift the stay available at this link. I’ll just pull out one little piece:

    Most importantly, however, the stay cannot be in the public interest because as the District Court ruled, it would harm tens of thousands of low-income women who rely on Plaintiffs for basic, preventive health care. See PI Order at 4, App. 6 (“[A]t least 49% of the approximately 103,000 women who obtained services through the program in 2010 obtained some services at a Planned Parenthood provider. These women represent a population that, without the Women’s Health Program, would likely be unable to obtain health care.”). As the District Court explained, without Plaintiffs in WHP, Texas will be unable “to find substitute providers for these women in the immediate future,” creating “the potential for immediate loss of access to necessary medical services by several thousand Texas women.” Id. at 22, App. 24. Moreover, “[i]f Plaintiffs are forced to close some health centers or to reduce their centers’ hours, the tens of thousands of additional clients they serve will also be harmed.” Id. at 21, App. 23. Thus, the District Court properly ruled that “the public interest is best served by allowing Plaintiffs to continue to receive government funds to provide family-planning services to women throughout Texas while this case is pending.” Id. at 22, App. 24.

  28. 28.

    General Stuck

    May 3, 2012 at 9:51 am

    Why is Rick Perry attacking the Constitution?

    It won’t stay baptized

  29. 29.

    West of the Cascades

    May 3, 2012 at 9:55 am

    @Dork: Yes, when it’s a limited ruling like this. Judges do this all the time. Here’s the standard for granting one:

    A plaintiff is entitled to a stay when it demonstrates that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) a stay in the public interest.

    Texas convinced Judge Smith it is likely to win in the end and that it should not be forced to continue spending money during the time it takes to litigate the case, and that harm to the public pocketbook outweighed the harm to Planned Parenthood from not being funded. I bet the state relied heavily on alternative sources of health services for women, which is bogus because such services are stretched so thin these days.

    Note that I disagree vehemently with Judge Smith’s stay, and agree with the district court here that it’s unconstitutional to legislatively punish a group for exercising a constitutional right — just trying to explain that this is a limited ruling, not any sort of decision on the merits of Planned Parenthood’s constitutional claim.

    But I’d also add that it is not an “extreme” decision by Judge Smith — a federal court of appeals staying a district court order pending appeal is something that happens relatively frequently.

  30. 30.

    Kay

    May 3, 2012 at 9:57 am

    @General Stuck:

    It won’t stay baptized

    He’s one who I think just wants Texas pro life people off his back. Kasich in Ohio is another one. These “social issues” are getting in the way of privatizing and then stealing everything that isn’t nailed down.

  31. 31.

    John M. Burt

    May 3, 2012 at 9:57 am

    But Jerry Smith is not a judicial activist for the same reason that fair-skinned Protestants who seek the violent overthrow of the government are not terrorists.

  32. 32.

    Steve

    May 3, 2012 at 10:01 am

    @West of the Cascades: Thing is, though, Texas also has to show the emergency is dire enough that it can’t even wait for a three-judge panel to decide a motion for stay – which doesn’t exactly take very long. So it’s not just a question of whether they have to keep paying money for the duration of the litigation, it’s a question of whether they can wait 24 hours or so.

  33. 33.

    Kay

    May 3, 2012 at 10:15 am

    @John M. Burt:

    I think he’s going to be considered a judicial activist because he issued his challenge to President Obama as a judge. Actions have consequences. If he doesn’t want to be perceived as biased, it’s easy to avoid. Don’t behave like that. If he chooses to, and he did, he takes the risk and should accept the result, even if it’s a perception of bias. He has to take some responsibility for this.

  34. 34.

    JCT

    May 3, 2012 at 11:25 am

    @Roger Moore:

    No such thing. The only Amendment conservatives actually give a fuck about is the Second.

    Very true — EVERYTHING is viewed through the prism of the 2nd. Having said that, the minute they have to bear any responsibility for the vile things they say (Ted Nugent comes to mind) — the 1st Amendment becomes their new BFF.

    The predictability is impressive.

  35. 35.

    Roger Moore

    May 3, 2012 at 12:37 pm

    @JCT:
    That said, I’m not sure how much of Second Amendment absolutists they really are. Something tells me they’d be perfectly happy with a law that restricted Those People from owning guns. Rights for me and not for thee and all.

  36. 36.

    Frankensteinbeck

    May 3, 2012 at 12:38 pm

    @JCT:
    Narcissism. Only they have rights. ‘Rights apply equally to everyone’ are a bunch of incomprehensible gibberish words to the narcissist. If you had rights, those would interfere with THEIR rights, and THEIR rights are SACRED.

  37. 37.

    UnfortunateTexan

    May 3, 2012 at 12:41 pm

    This will end with Texas opting out of the WHP; they have already said that is what they will do if this is successfully challenged. And how could that not happen? It is so blatently unconstitutional. It is soooo embarrassing to be a Texan.

  38. 38.

    West of the Cascades

    May 3, 2012 at 12:45 pm

    @Steve: I’m not sure about the Fifth Circuit practice, but in the Ninth Circuit the motions panel sits once a month for a week – so there’s a possibility that, because of timing, it wasn’t feasible to get a three-judge motions panel together in a short time. But I agree Texas had to show “extraordinary circumstances” under the circuit rule to get a stay from a single judge, and it appears that the main extraordinary circumstance here is that the judge happened to be Judge Smith.

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