The Fifth Circuit is the locus of 'judicial activism' and has been for some time. There are topics on which the Circuit treats established rules and holdings as o more than optional suggestions. In particular, abortion and reproductive rights. The Supreme Court struck down a Texas anti-abortion law that, among other things, required service providers to have hospital admitting privileges at a hospital within 30 miles of the service site (i.e., where the abortions are performed). Whole Woman's Health v. Hellerstadt, 136 S. Ct. 2292 (2016). In that case, the Supreme Court reversed the Fifth Circuit decision upholding the Texas law. It also knocked down the Fifth Circuit's approach to balancing that, under Casey, is required in assessing the permissibility of a statute that limits access to abortion. Louisiana passed an antiabortion statute with virtually the same 30-mile hospital privilege requirement. One expect the Fifth Circuit to be a little chastened, but one would be wrong. In June Medical Services v. Gee, 905 F.3d 787, the Fifth Circuit, 2-1, upheld the Louisiana legislation, including the 30-mile limitation. Over the weekend, the Circuit denied the request for rehearing and denied rehearing en banc. Along the way to its decision, the Circuit decided that it was well-placed to reconsider the evidence before the District Court and ignore the evidentiary and factual assessments of the District Court. The Circuit decided that, Whole Woman's Health could be set aside, and it could find that a requirement for hospital privileges is not a significant burden on abortion services even though hospital privileges in Louisiana can and have been denied based on the fact that the doctor provides abortion service, that hospitals are free to limit privileges to faculty and to employees of the hospital.
It did the same in overruling the District Court and approving Texas' removal of Planned Parenthood from Medicaid funding. Planned Parenthood v. Smith, Jan. 17, 2019. There, the Circuit decided that it would determine whether the video on which Texas relied was edited, because, one supposes, that the sort of fact intensive assessment that an appellate judge is well-placed to make. What is going on is that the Fifth Circuit is stacked with judges who on certain issues have decided that there personal views are enough to make law. Judge Jones and Judge Ho are the leading lights. It is one thing for a Circuit Court judge to urge a change in law or to urge the Supreme Court to alter its holdings. The Fifth Circuit is not doing that. It is proceeding as though the Supreme Court has already. Maybe they know more about the recent additions to the Supreme Court than those Justices were willing to share with the Senate. Or maybe they care little for the duties of their office, their views of morality having a stronger normative claim.
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