In times of contagion and war, unelected judges have been rightly timid about challenging the decisions made by figures in elective office, who bear a more direct responsibility to the people whose lives are in danger. And so I began my last column as I noted that the issue of abortion could have a dramatic effect in disrupting that convention long settled in our law, as it has upended other parts of our law.
The recent decisions by governors, closing down vast parts of their economies, along with freedom of movement, have been sweeping well beyond any discriminations overly refined, or even mildly sensible. These are not restrictions of liberty that Americans are likely to suffer for more than a few weeks without breaking into resistance.
And yet the main challenge so far has come on that issue of abortion. Federal judges in Texas, Ohio, and Alabama issued restraining orders when the governors of those States thought it fitting not to exempt abortions clinics from the orders closing down other businesses.
We were hearing the argument, so obviously expected, that the business of abortion was bound up with a deep constitutional right in a way that restaurants or bars were not. I remarked that everything was unfolding as if by script, and with the same script we knew how things would come out: As ever, the protection of abortion would trump all other concerns of policy and law.
Except that things didn’t play this time exactly by script. What I had neglected to factor in was that the script had been slightly altered. In the space of three years, the Trump Administration had appointed fifty-one new judges to the federal circuit courts, and they included some dear, accomplished friends of mine.
The gifted, young Kyle Duncan had built a reputation in defending religious freedom and natural marriage in the courts, taking time away only to raise, with Martha, five young children and practice classical piano.
He returned home to Louisiana and took his place on the 5th Circuit Court of Appeals. As it happened, he would find himself on a panel of three judges to review the decision of Judge Yeakel, in a District Court in Texas, to block the enforcement of the orders on the closure of abortion clinics.
And as it further happened, he would be joined on the panel by the formidable Judge Jennifer Walker Elrod in Houston. Together they formed a majority to overturn the order of Judge Yeakel and sustain the closing of the clinics.
And yet. . .the critical points I made in that past column have remained unaltered, and they still determine the meaning of these cases as they move through the courts.
The governors in several States had evidently been moved by a reasoned objection to abortion itself and the ground on which it had been proclaimed as a “constitutional” right. But they could not speak those words in the courts as they sought to defend their decision to close the clinics.
They argued instead about abortions drawing away equipment and resources that might be needed far more in coping with the coronavirus. But that argument could be picked apart, as it was by Judge Dennis in dissent, contending that surgical abortions did not make much use of “N95 respirators” or other equipment used in dealing with the virus. And the “medication abortions” – taking pills – made no demands on that equipment.
And sure enough, Kyle Duncan, writing for the majority, was compelled to steer around these arguments on either side. He came down simply, forcefully on the side of the higher authority of elected officers in dealing with a grave danger to the public health.
He leaned heavily on the classic case of Jacobson v. Massachusetts (1905) a case dealing with a policy of compulsory vaccination for smallpox. The Supreme Court sustained that policy, even with its patent overriding of personal freedom and the fabled “control over one’s own body.”
But as Judge Dennis pointed out in dissent, even the Court in that case, conceded that there were plausible limits to this sweeping power of the government. There could be a serious challenge to show that these restrictions on freedom bore a direct and substantial relation to the treatment of the contagion or the danger to public health.
Judge Duncan relied again on the deep responsibility of the political officers, who have a more direct relation to the people whose lives are at risk. And so he was quite emphatic now that the District Court judge had “usurped the power of the governing state authority when it passed judgment on the wisdom and efficacy of that emergency measure.”
The governors had been constrained from offering a moral or constitutional argument against abortion in the course of defending their orders. And now Judge Duncan was compelled to do virtually the same as he found a way to sustain their orders. Nothing in his decision then would prepare the ground for a challenge to that right to abortion if this case were brought, with others, to the Supreme Court.
The closure of the clinics might be bringing the blessing of saving lives – if people don’t drive to another State for the abortions. But once again, the officials challenging abortion could not give their real reasons, and say what they really meant.
And so nothing in the law on abortion has really been altered in the crisis.
*Image: A Mother  by Elizabeth Nourse, 1888 [Cincinnati Art Museum]