Can The Fifth Say No?

Yesterday the Fifth Circuit Court of Appeals upheld yet another set of restrictions on abortion, vacating and reversing the district court in Whole Women's Health et al. v. Paxton et al.  The opinions in the en banc decision are here.  I skimmed the dissent, but read the majority and concurrence with care.  In recent years the Fifth Circuit's decisions on abortion have gone up to the Supreme Court twice, both times reversed by the Supreme Court.  Both times the Fifth Circuit approved restrictions on access to abortion, uncritically accepting the state governments' (Texas and Louisiana) claims.  And again this week, the Fifth Circuit finds that it really does not much matter what the burdens are.  Restriction get low scrutiny as long as the restrictions do not, by themselves and without considering any other factors (e.g, other restrictions and costs) "unduly burden" some undefined large fraction of women seeking abortion services.  This decision is notable for continuing the process of excluding from consideration the relation between the supposed benefits of the legislation and supposed burdens of the legislation.  It does not matter that removal of wisdom teeth is more dangerous for the patient than are abortion procedures, or that the health and safety regulations do not have anything much to do with either health or safety, nor that the speech compelled is inaccurate and tendentious.  This set of judges sees no burden so great that it is undue.  A concurrence also gives us the benefit of a lesson in the history of biological sciences, explaining that some discoveries are not immediately taken up by the medical community, so, of course, judges should not put much store by expert testimony (well, except in criminal cases when stuff like bite-mark testimony is accepted). Judge Ho's concurrence is unrelated to the actual issues, and is misleading even considered in the most favorable of lights.  The decision is ordinary politics. Access to abortion services is a right grounded in the Constitution, like a host of other rights not mentioned in the text, like the right to travel among states, like privacy, etc.  Legal realism is the real doctrine of these judges.