Supremely surprising

A 6-3 SCOTUS majority finds that the Texas abortion restrictions are too harsh.  For now.

On Tuesday evening, the Supreme Court issued an injunction that will allow abortion clinics in Texas to remain open, temporarily blocking a package of harsh abortion restrictions that Texas lawmakers approved last summer. That measure, which was unsuccessfully filibustered by gubernatorial candidate Wendy Davis, requires that abortion clinics make costly renovations to bring their building codes in line with ambulatory surgical centers and stipulates that abortion doctors must secure admitting privileges from local hospitals.

Socratic Gadfly points out that Davis won the battle staged by her filibuster.  For the time being.

The Supreme Court order noted that Justices Samuel A. Alito, Jr., Antonin Scalia, and Clarence Thomas disagreed with the Court’s injunction. The decision will now remain in effect until the U.S. Court of Appeals for the Fifth Circuit “rules on a constitutional challenge to the two measures,” SCOTUS blog reports.

And once more, the fellow who is presumptively the next governor of Texas shows us what a really weak lawyer looks like.

In response, Greg Abbott, Texas’ attorney general and the Republican candidate for governor, told the justices that “it is undisputed that the vast majority of Texas residents (more than 83 percent) still live within a comfortable driving distance (150 miles)” of an abortion clinic in compliance with the law. Others live in parts of the state, he said, that did not have nearby clinics in the first place.

Those in the El Paso area, Mr. Abbott continued, could obtain abortions across the state line in New Mexico.

It's disputed, Wheels, and you lost.  You lost John Roberts and Anthony Kennedy.  That is losing.  The only good news for you is that it ain't over just yet.

Last November, the Supreme Court, in a 5-to-4 ruling, rejected a request to intercede in a separate case challenging the law, one that centered on the admitting-privileges requirement. In dissent, Justice Stephen G. Breyer said he expected the Supreme Court to agree to hear an appeal in that case regardless of how the Fifth Circuit ultimately ruled.

A three-judge panel of the appeals court upheld the admitting-privileges requirement in March. On Thursday, the full Fifth Circuit refused, 12 to 3, to reconsider that ruling. In light of Justice Breyer’s comment, Supreme Court review of the admitting-privileges case appears likely.

I wonder if Ken Paxton can argue this case any worse.  I'm guessing yes.

More from RH Reality Check and the Houston Press.  Charles has a post that also covers the other big court ruling from yesterday, the voter ID decision by the Fifth Circuit, with a good roundup of the various linkage in both cases.

Update: And more also from MSNBC, including the snip from Rachel Maddow's report last evening.

Take your ID with you when you vote, says the Fifth Circuit

Because it's too late to change the rules.

"Based primarily on the extremely fast-approaching election date, we STAY the district court’s judgment pending appeal," 5th Circuit U.S. Court of Appeals Judge Edith Clement wrote, in a ruling joined by Judge Catharina Haynes (and posted here). "This is not a run-of-the-mill case; instead, it is a voting case decided on the eve of the election....The judgment below substantially disturbs the election process of the State of Texas just nine days before early voting begins. Thus, the value of preserving the status quo here is much higher than in most other contexts."

The third appeals court judge on the panel, Gregg Costa, agreed with the decision to stay the district court ruling, but did not join their opinion. He said he was troubled about the prospect of an election being held under discriminatory rules.

"We should be extremely reluctant to have an election take place under a law that a district court has found, and that our court may find, is discriminatory," Costa wrote. However, he said it appeared the Supreme Court opposes federal court-ordered changes to election procedures on the eve of elections. "On that limited basis, I agree a stay should issue," he said.

Clement and Haynes are appointees of President George W. Bush. Costa was appointed by President Barack Obama.

Yeah, that's what I thought they were going to do.  More from Lyle Denniston.

Update:  I hope nobody showed the three Fifth Circuit judges any pictures of black people voting.

Update II:  More from Justin Levitt of the Brennan Center, at Election Law Blog (now appearing regularly in the right-hand column here), via Brad Friedman.

"So instead, the court makes it legal for all pollworkers to demand the more restricted set (preventing all individuals without the right ID from voting a valid ballot at all)," he continued. "Or, translated even further: if we let the district court's order stand, some people without the right ID will be able to vote, and some won't. And if we stay the district court, all people without the right ID won't be able to vote. And in elections, 'all' is better than 'some.'"

Levitt derides the ruling as 'foolish consistency'. "It's one thing to stop last-minute changes when the impact is less dire for those affected, another to stop last-minute changes when the change is new and unfamiliar, and still another to stop last-minute changes when the reason for the change isn't clear."

"Responsible procreation"

This is the legal premise Greg Abbott (also known in various lawsuits as "the state of Texas") advances in the case against marriage equality.

In a brief filed with the Fifth Circuit Court of Appeals on Friday, Texas attorney general and GOP gubernatorial candidate Greg Abbott argued that lifting the state’s ban on same-sex marriage would not encourage opposite-sex couples to procreate within wedlock, and therefore the ban should stay in place. Abbott reiterated the “responsible procreation” argument he has already made in defense of a same-sex marriage ban, saying that the motivation for denying marriage rights is economic, according to the Houston Chronicle.

“The State is not required to show that recognizing same-sex marriage will undermine heterosexual marriage,” the brief reads. “It is enough if one could rationally speculate that opposite-sex marriages will advance some state interest to a greater extent than same-sex marriages will.”

There's nothing new here.  Supporters of California's Prop 8 gave the postulate a test drive in 2013; Utah employed the argument as well.  What motivates a (supposed) small-government conservative to advance a state interest in procreation in the first fucking place, you might be asking yourself. 

The economic benefits to the state of people having children, it appears.

Texas, represented by Assistant Texas Solicitor General Mike Murphy, countered that the state has a legitimate interest in preserving the "traditional definition of marriage," calling the same-sex kind, which became law in Massachusetts in 2004, "a more recent innovation than Facebook."

[...]

"The purpose of Texas marriage law is not to discriminate against same-sex couples but to promote responsible procreation," Murphy said, according to The Dallas Morning News. Kids, he argued, fare better when they're raised by heterosexual couples.

That premise is false, as scientific data has revealed.

In a 2010 brief filed in a gay-marriage case in California, the American Psychological Association, the American Psychiatric Association and the American Association for Marriage and Family Therapy wrote that claims the straight people make better parents or that children of gay couples fare worse "find no support in the scientific research literature."

Indeed, the scientific research that has directly compared outcomes for children with gay and lesbian parents with outcomes for children with heterosexual parents has been consistent in showing that lesbian and gay parents are as fit and capable as heterosexual parents, and their children are as psychologically healthy and well-adjusted as children reared by heterosexual parents. Empirical research over the past two decades has failed to find any meaningful differences in the parenting ability of lesbian and gay parents compared to heterosexual parents.

As Supreme Court Justice Elena Kagan asked, what about when two heterosexual people over the age of 55 get married?  What about infertile couples of any age?  And I would ask: what about the children produced by women of low socio-economic status who are being compelled to give birth because the state refuses to allow them to end their pregnancies?  Weren't conservatives calling those mothers and their children 'moochers' and 'freeloaders' just the other day?  That's certainly counter to a claim of "economic benefit".

The speciousness of these legal arguments defies common sense.  More from the Chronic from behind the paywall.

"By encouraging the formation of opposite-sex marriages, the State seeks not only to encourage procreation but also to minimize the societal cost that can result from procreation outside of stable, lasting marriages," Abbott's brief read. "Because same-sex relationships do not naturally produce children, recognizing same-sex marriage does not further these goals."
 
LGBT and pro-gay marriage activists were surprised Abbott led with the "responsible procreation" argument since it has been rejected in the 10th and 4th Circuit Courts.

"It hasn't succeeded very often because it doesn't make a whole lot of sense and it doesn't really comport with what most of us think about marriage," said Rebecca Robertson, legal and policy director for the American Civil Liberties Union of Texas. "(State law) doesn't have to be perfect. It just has to be reasonable."

'Reasonable' and Greg Abbott shouldn't be mentioned in the same breath.

But these ridiculous, contorted legal justifications discriminating against people who love each other, wish to share their lives, and not be penalized by society, tax law, probate law, hospital visitation polices, and all the rest are actually not what concerns me most.

What is genuinely disconcerting is that Greg Abbott -- who had a tree fall on him and break his spine at the age of 26, leaving him paralyzed from the waist down -- has apparently been thinking about the sex other people have for a long time now.  And essentially he's reached the conclusion that the only people who should be allowed to have sex are straight married couples who desire children. (Let's overlook his ignorance of the reality of pre-marital and extra-marital sex, as well as recreational sex.  God only knows how wrong he must think masturbation is.  No economic benefit to the state there.  Likewise, Abbott is  probably only interested in the economic benefits of procreation by Caucasian and well-to-do Christian couples... but that's a digression.)

These are considerably more disturbing thoughts than anything I have read recently about wheelchairs and disabled people.  But since Abbott brought it up, it's fair to speculate: what economic benefit to the state has his own marriage produced (his only daughter is an adopted child)?  And if there's no responsible procreation activities going on in the Abbott household.... of what good to the general welfare of Texas has his marriage been?

By Greg Abbott's own logic, why should a paralyzed man be allowed to marry?

Charles has more, less graphic than me.  Update: And so do Margaret and Helen.  The Dallas News, tracking the case developments, notes that it will be several weeks before the Fifth weighs in.