Abortion

Fifth Circuit Reinstates Texas's Epidemic-Related Abortion Restrictions, EXCEPT …

"any patient who, based on the treating physician's medical judgment, would be past the legal limit for an abortion in Texas ... on April 22, 2020" (the date until which the Texas restrictions suspend abortions) remains able to get an abortion, despite the restrictions.

|The Volokh Conspiracy |

From the per curiam opinion today, joined by Judges Stuart Kyle Duncan and Jennifer Walker Elrod (Judge James Dennis dissented in part, "because he would not stay any part of the district court's April 9 TRO"):

On April 7, 2020, we issued a writ of mandamus directing the district court to vacate its temporary restraining order … that exempted abortion procedures from GA-09, an emergency executive order issued on March 22 by the Governor of Texas postponing certain non-essential medical procedures for three weeks during the escalating COVID-19 pandemic. As we explained, GA-09 sought to preserve critical medical resources and slow the spread of a pandemic during what the district court itself recognized was Texas's "worst public health emergency in over a century." We further explained that GA-09 "is a concededly valid public health measure that applies to all 'surgeries and procedures,' does not single out abortion, and … has an exemption for serious medical conditions."

In our opinion, we emphasized that the district court had "scheduled a telephonic preliminary injunction hearing for April 13, 2020, when all parties will presumably have the chance to present evidence on the validity of applying GA-09 in specific circumstances." The evidence presented at this hearing, we said, would allow the district court to make "targeted findings, based on competent evidence, about the effects of GA-09 on abortion access." We emphasized that "those proceedings" must "adhere to the controlling standards, established by the Supreme Court over a century ago, for adjudging the validity of emergency measures like [GA-09]." As we stated in our opinion, those "controlling" standards come from the Supreme Court's decision in Jacobson v. Massachusetts (1905). Having already painstakingly explained those standards in our opinion, we reiterate our holding:

"[W]hen faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some 'real or substantial relation' to the public health crisis and are not 'beyond all question, a plain, palpable invasion of rights secured by the fundamental law.' Jacobson. Courts may ask whether the state's emergency measures lack basic exceptions for 'extreme cases,' and whether the measures are pretextual—that is, arbitrary or oppressive. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures."

We also articulated how the Jacobson framework would apply to the Casey undue-burden analysis. We explained that this analysis "ask[s] whether GA-09 imposes burdens on abortion that 'beyond question' exceed its benefits in combating the epidemic Texas now faces." We explained further that this analysis would "require[] careful parsing of the evidence," and we noted some of the conflicting evidence in the record. But we emphasized that "[t]hese are issues that the parties may pursue at the preliminary injunction stage, where Respondents will bear the burden to prove, by a clear showing, that they are entitled to relief … in any particular circumstance."

The day following our mandamus, April 8, 2020, the district court did the following: (1) it vacated its March 30 TRO; (2) it cancelled the telephonic preliminary injunction hearing previously scheduled for April 13; and (3) it ordered the parties to confer and propose a status report before April 15 setting out the parties' agreement on procedures and a schedule for a new preliminary injunction hearing on a yet-unannounced date.

Also on April 8, plaintiffs filed in the district court a new application for TRO supported only by one additional declaration. The next day, April 9, the district court—without allowing defendants either to file a pleading or to submit evidence in opposition to the TRO application—entered an order granting plaintiffs a TRO. The new TRO enjoins all defendants from enforcing GA-09 against Plaintiffs or their agents in the following ways: (1) it enjoins enforcement of GA-09 "as a categorical ban on all abortions provided by Plaintiffs"; (2) it enjoins enforcement as to providing "medication abortions"; (3) it enjoins enforcement as to providing "procedural abortion[s] to any patient who, based on the treating physicians' medical judgment, would be more than 18 weeks LMP ["last menstrual period"] on April 22, 2020, and likely unable to reach an ambulatory surgical center in Texas or to obtain abortion care"; and, finally (4) it enjoins enforcement as to providing "procedural abortion[s] to any patient who, based on the treating physician's medical judgment, would be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020."

Texas officials have now filed a petition for writ of mandamus seeking vacatur of the April 9 TRO, as well as an emergency motion for stay of the TRO and a temporary administrative stay of the TRO.

IT IS ORDERED that the motion for temporary administrative stay of the district court's order of April 9, 2020 is GRANTED, until further order of this court, to allow sufficient time to consider the mandamus petition and emergency stay motion. This stay operates against the April 9 TRO in all  respects EXCEPT that part of the TRO applying to "any patient who, based on the treating physician's medical judgment, would be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020." Our stay does not operate against that part of the April 9 TRO.

The panel also set an expedited briefing schedule, with all the papers due by next Wednesday. Thanks to Josh Blackman for the pointer.

NEXT: "Settling in for the Long Haul," a Maine Correspondent of Mine Reports

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  1. The later the abortion, the more morally dubious, I think. Apparently the lawmakers do not agree.

    1. 1. This is an executive order by the Governor
      2. concerning non essential medical procedures
      3. during an emergency
      4. for the stipulated purpose of slowing the spread of disease

      So apart from the reference to lawmakers and moral dubeity, you’re pretty much spot on.

      1. They’re over-ruling the fact findings of the district court, specifically, that medically-induced abortions, unlike surgical ones, don’t have any impact on the spread of corona-virus. Blocking Plan B sales might play will with anti-abortion voters but it’s bad adjudication, and there’s no getting around this fact.

      2. If allowed to continued it will surely cause there to be more late term abortions than there would otherwise be, although with the 5CA amendment at least not beyond the 22week limit.

        1. your moniker is apt.

  2. This seems pretty reasonable. Pretty much all elective procedures have been postponed. Abortion advocates like to say that abortion is medical care. I agree, it is not some sort of unique and special flower among medical procedures. There’s as much constitutional right to have pretty much any other elective medical procedure you’d like (hip replacement, etc.) performed as there is abortion. Postponing abortions, provided it doesn’t run into other issues (such as postponement past the date at which it can be done) isn’t any worse from an individual rights perspectives than making any other person wait for any other elective procedure.

    1. “There’s as much constitutional right to have pretty much any other elective medical procedure you’d like (hip replacement, etc.) performed as there is abortion.”

      If the reasoning of the pro-abortion movement really was what they claim it to be, yes. In practice, abortion is the only medical procedure you have a “constitutional right” to, though being mutilated to look like the opposite sex is a strong contender to become the second sacred medical treatment.

      1. Are there other medical procedures being banned by religious zealots in state and national legislatures?

        I mean, I’m actually pretty sure that the government,outside of some weird emergency triage scenarios, is not allowed to prevent you from getting medically necessary or indicated procedures. The only difference, as I said, is that since those procedures aren’t a proxy for narrowminded misogynist religious extremists to impose limits on female sexuality, they aren’t getting prohibited, so nobody has ever had to recognize the constitutional right.

        1. “I mean, I’m actually pretty sure that the government,outside of some weird emergency triage scenarios, is not allowed to prevent you from getting medically necessary or indicated procedures.”

          The problem here is that while it’s certainly possible for abortions to be medically necessary or indicated, it’s fairly rare. Almost all abortions are elective procedures. Motivated by the desire to not have a baby be born, in the same way liposuction is motivated by the desire to not look fat.

          Doe v Bolton, (decided the same day as Roe v Wade.) made abortion into the one solitary medical procedure whose ‘necessity’ could not be subject to review or second guessing. Think you need a heart transplant, kidney stones broken up, or your nose straightened? Any of those, your doctor could get in trouble for falsely saying you need it. But not abortion.

          It’s literally the only medical procedure treated this way, despite the reasoning being generally applicable.

          The result is a sub-culture of doctors who are perfectly willing to declare an abortion “medically necessary” just because you want it. You’d be upset not to get your abortion? Medical health! You’d run the normal risks of pregnancy? A threat to your health!

          Interesting trivia: “Doe” claims her lawyer lied to her to construct the case, and, just like “Roe”, spent her life afterwards as a pro-life advocate, horrified at what she’d been used to achieve.

        2. Are there other medical procedures being banned by religious zealots in state and national legislatures?

          I couldn’t say, but there are certainly some that are banned by federal law, for reasons that, if not religious, clearly belong to the land of morals :

          “whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both”

      2. Not a big fan of abortion in general, but it seems to me that there aren’t a lot of other ‘elective’ medical procedures that would become illegal or otherwise unavailable under state law if postponed.

        1. ” there aren’t a lot of other ‘elective’ medical procedures that would become illegal or otherwise unavailable under state law if postponed.”

          harvesting organs from a living donor, and then transplanting them, if delayed until the donor withdraws consent.

    2. “There’s as much constitutional right to have pretty much any other elective medical procedure you’d like (hip replacement, etc.) performed as there is abortion.”

      Sure, come back when there’s protests in the streets outside the osteopath’s offices by people who believe that God wants people to keep their original hips.

  3. Eugene,

    Do you think this reasoning is enough to distinguish gun sale bans (permitting them to go into full effect) since there is no date by which a gun sale would be illegal?

    1. That might be relevant if 2A described the right in terms of the right to acquire arms by purchase. But in fact it describes a right to keep and bear arms, so that even if I can buy a gun on Tuesday, banning me from buying one on Monday has infringed my right to keep and bear arms for a whole 24 hours. That loss can never be put right. There’s a whole 24 hours in which I had the constitutional right to keep and bear arms, when the government has prevented me from keeping and bearing arms.

      Meanwhile we can’t be quite so sure of the precise text of the right to have an abortion, since it is concealed in those penumbral swirls of mist. But if it is a right to end your pregnancy before you are landed with giving birth to a baby you don’t want, then it’s not a right to be continually and at all times ending your pregnancy. It’s a right to end any particular pregnancy before it turns into a birth. Consequently banning abortions on Monday, so long as you can still get one on Tuesday, doesn’t take away your right.

      Of course the right to abortion may be the right to be rid of your fetus as soon as you feel you want to be rid of it, in which case forcing you to delay for a day would put you in a similar position to a thwarted gun purchaser. But as I say, parsing the precise text of the constitutional right to abortion requires not only extensive legal training, but exceptional eyesight.

      1. ” even if I can buy a gun on Tuesday, banning me from buying one on Monday has infringed my right to keep and bear arms for a whole 24 hours.””

        No it hasn’t. If you already own a firearm, then keeping you from buying another one doesn’t infringe or even affect you right to keep and bear arms. If you didn’t already own a firearm, part of the reason you don’t already own a firearm was your own decision not to own one. Rights which are waived are not infringed. To make an actual infringement of your rights, you have to show that the government kept you from possessing a firearm before they kept you from buying one. Are you a felon or otherwise prohibited from possessing a firearm? If so, that’s your complaint, not the fact that the government closed the gun store near your house to limit the spread of pandemic.

        1. If you didn’t already own a firearm, part of the reason you don’t already own a firearm was your own decision not to own one.

          Possibly, though it may have been a decision by a robber.

          Rights which are waived are not infringed.

          True, but what has that do with people who do not exercise rights, but do not waive them ? If you were right that a failure to exercise a right as soon as you are in a position to do so, implies a waiver of that right, then there would be little left of most constitutional rights. Fail to criticise Trump on Monday, lose to your right to criticise him thereafter ?

          Decide you want to keep your baby for the first eight weeks of pregnancy. Change your mind when your boyfriend dumps you – sorry, hun, you’ve waived ?

          To make an actual infringement of your rights, you have to show that the government kept you from possessing a firearm before they kept you from buying one.

          Nonsense. You just need to show that you were in a position to buy a firearm, from a willing seller, and the government stopped you.

          1. “‘If you didn’t already own a firearm, part of the reason you don’t already own a firearm was your own decision not to own one.’

            Possibly, though it may have been a decision by a robber. ready

            Fine, your lack of ownership may have been due to a decision you made to to engage in proper personal security. And, in the case you define, it isn’t the government that denied you the right to possess that firearm, it’s the robber’s.

            “Decide you want to keep your baby for the first eight weeks of pregnancy. Change your mind when your boyfriend dumps you – sorry, hun, you’ve waived ?”
            This is in fact how it works. If you fail to abort your fetus before the point of viability, you’ve waived your right to abort.

            “. You just need to show that you were in a position to buy a firearm, from a willing seller, and the government stopped you.”

            The government stopped you from buying a gun in your scenario, they haven’t stopped you from possessing one. There are other ways to possess a firearm besides buying one from a gun store. The particularly handy can make one themselves.

          2. “If you were right that a failure to exercise a right as soon as you are in a position to do so, implies a waiver of that right”

            If you were able to read what I actually wrote, you’d see that this is not what I said. to help you, here’s the relevant portion: “To make an actual infringement of your rights, you have to show that the government kept you from possessing a firearm before they kept you from buying one.”

            If I’d said that hey, once you decided not to possess a gun for any reason, you’ve waived the right to ever possess one”, your summary would be correct. But it’s not, because I didn’t.

            1. IMHO when we’re discussing what you said about waiving rights, it would be sensible to sdiscuss what you said about waiving rights. And :

              ….here’s the relevant portion: “To make an actual infringement of your rights, you have to show that the government kept you from possessing a firearm before they kept you from buying one.”

              is not it. No mention of waiving rights you see. Not even tangentially connected with waiving rights.

              But :

              Rights which are waived are not infringed.

              There it is. Tacked right on after a sentence about having made a decision not to own a firearm. Which looks awfully like a claim that deciding not to own a firearm implies a waiver of rights to keep and bear arms.

              But hey, you write the sentences, I only read ’em. So if you didn’t mean what it looks like you meant, tell us what you meant. What was the role of “Rights which are waived are not infringed” in your line of argument ?

              1. “you write the sentences, I only read ’em.”

                You don’t read very well. Keep practicing, you’ll get the hang of it.

                1. The sentence in which you attempt to explain how

                  “Rights which are waived are not infringed”

                  fits into your argument is not yet available to be read.

        2. “If you already own a firearm, then keeping you from buying another one doesn’t infringe or even affect you right to keep and bear arms.”

          You’re treating “infringe” as though it were a synonym for “utterly obliterate”. It’s not.

          1. No, I’m using “infringe” as if it means “infringe”.

  4. What is the rationale for prohibiting medical abortions? I know the procedure ones are to conserve supplies, but how does that apply to drug-induced abortions?

    1. M
      I’m not understanding that, either. Presumably, that will be fleshed out in future court hearings. If you want to preserve scarce medical resources, presumably you want to *encourage* early drug-induced abortions…to avoid later ones where you definitely will need extensive time of doctors and nurses, use of PPEs, etc.. So, allowing a state to bar these seem to fail even the almost-impossible-to-fail rational basis standard.

    2. The obvious rationale is that the majority are pro-lifers who are trying to prevent as many abortions as they can lawfully get away with without getting slapped down by a higher court.

    3. Complications that then require supplies? #1 on the Mayo Clinic list of potential risks is: “Incomplete abortion, which may need to be followed by surgical abortion.”

      1. Good, and fair, point.

      2. That may be the #1 risk but what is the percent chance of that? How does it compare to a myriad of other activities that could cause injury needing surgery?

        More importantly is the state making that claim?

        I can appreciate that if the risk is high enough that may be a valid argument, but I’m skeptical it is.

        1. Clearly, while it’s possible for an abortion to go bad(er) and result in consumption of medical resources needed for Covid 19 patients, this is no more likely than in the case of many other elective surgeries that are being halted for the time being.

          But, if you read the order being overturned here only for abortion, and for no other medical procedure, it doesn’t say anything about abortion. It’s generally applicable to ALL elective surgeries.

          That’s the point: Abortion isn’t being treated as a normal medical procedure subject to the same regulation as any other, and protected only by the same rights of personal choice that ought to protect any medical choice.

          It’s being treated as a special procedure, specifically protected by reasoning never applied to any other medical procedure.

          1. Are any other procedures as time dependent as abortion?

            And I’m not talking about the surgical abortions part, I’m talking about the medical abortion part. The one where medication is used. All elective surgeries require the use of the medical supplies that are needed elsewhere, that isn’t true of medically induced abortions. So comparison is not medically induced abortion to elective surgical procedures. It is medical abortions to the whole panoply of other activities that can result in injuries requiring surgery. Where does it fit in that in terms percent chance of occurring? Where does it fit in terms of number of expected instances? That is the proper comparison

            1. “Are any other procedures as time dependent as abortion?”

              Yes. There are many procedures, such as cataract surgery where a delay reduces the odds of success and could leave the patient permanently blind.

              1. ????

                Are you perhaps thinking of surgery to repair a detatched retina?

                I’ve known, geez, a couple dozen people who have had cataract surgery and it was always presented as ‘one of these years you might want to think about cataract surgery’. The surgery completely replaces the lens with an artificial one, so letting the existing lens get a little more cloudy over time doesn’t affect the eventual outcome.

                1. Depends on how fast the cataract is progressing. My own were lightning quick, a side effect of chemotherapy; I went from 20-16 (corrected) to legally blind in about 3 months. I had to get the surgery fairly quickly to avoid consequences. Besides being unable to do my job, which requires sight.

                  While a slow developing cataract has a long window where it can easily be operated on, postpone the surgery long enough and it does become more difficult, and more likely to involve complications.

                  At any rate, the usual side effect for postponing surgery is health consequences. The usual side effect of postponing abortion is a live birth. (Yes, there are cases that are exceptions. They’re… exceptions.)

                  1. But that wouldn’t really be an elective surgery then. It is medically necessary. By the question I meant is there an elective surgery that is that time dependent?

                    1. Ehh…. Something can be elective AND medically necessary, simultanously.

            2. “Are any other procedures as time dependent as abortion?”

              Cardiac catheterization comes to mind. Along with clot-busting procedures for stroke.

              1. But would that be considered elective?

                1. We have a system wherein doctors recommend what procedures they should perform on you, not one where they do them and then tell you about it later when you get the bill.

            3. Most other surgeries, including “non – essential”, have better outcomes when performed on a timely basis including the faster return to normal life functions.

      3. ” #1 on the Mayo Clinic list of potential risks is: “Incomplete abortion, which may need to be followed by surgical abortion.”

        Apparently in Texas, childbirth never has complications that require hospitalization.

    4. RE: “What is the rationale for prohibiting medical abortions? I know the procedure ones are to conserve supplies, but how does that apply to drug-induced abortions?”

      Well, a certain percentage of non-surgical abortions (medical abortions) fail, and require surgical follow-up. The surgery is usually a D&C which is very easy and safe, but it’s a surgery and could pose a COVID19 transmission-risk. The failure-rate is between five percent and one percent of non-surgical abortions require surgical follow-up, depending on whom you ask.

      1. 1. Is the state claiming that or are you giving a possible reason? This is important to evaluating the case.

        2. Thank you for giving me numbers like I asked because I was genuinely interested. Do you know how that compares to other activities? Or perhaps more importantly the number of expected incidences? In this case the rate isn’t necessarily as important as the raw numbers since that is the harm we are trying to alleviate. So something can happen at a lower rate but if more people are doing it would result in more incidences.

        1. 1. The state in this case didn’t just ban abortions. They ordered a halt to all elective surgeries for precisely the reason stated by Mr Toad.

          1. BUT I AM QUESTIONING THE MEDICAL ABORTION ASPECT. I don’t know how many times I have to say that. Medical abortions are not surgeries. Have they specifically said that it is because of the risk of incomplete abortion or is that just what some are saying is a possible explanation.

          2. The district court ordered that medical abortions be excluded from the general order, finding that providing medical abortions do not require use of limited hospital PPE resources, and are therefore outside the scope of the order. The circuit court has overruled these fact findings by the trial court, without putting anything in the evidentiary record that counters the finding by the trial court. Appeals courts are not supposed to do this.

            1. It simply vacated the TRO. And it seems to have done so because :

              “The next day, April 9, the district court—without allowing defendants either to file a pleading or to submit evidence in opposition to the TRO application—entered an order granting plaintiffs a TRO”

  5. “This stay operates against the April 9 TRO in all respects EXCEPT that part of the TRO applying to “any patient who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020.” Our stay does not operate against that part of the April 9 TRO.”

    What brave judges, taking these unborn human beings who in normal circumstances would be under two weeks’ away from legal protection, and letting them be killed!

    When Justice Douglas issued his order with the effect of stopping the bombing of Cambodia while the legality of the operation was litigated, he said he was treating this like a capital case because letting the bombing go on “would catapult American airmen and Cambodian peasants into a death zone.” So he was effectively issuing a stay of execution.

    https://supreme.justia.com/cases/federal/us/414/1316/

    Douglas was promptly overruled by his colleagues. But he had nothing to lose in voting his conscience, so he went ahead and did what he thought was right.

    Perhaps some justice of conscience – Thomas? – could protect an indeterminate number of unborn human beings from being cast into a death zone. Let Texas protect these approaching-viability humans. Then let the other justices overrule [Thomas?] if they think it’s that important.

    1. You shouldn’t hold out Justice Douglas, a guy who really didn’t give a hoot about the rule of law, as an example for how judges should conduct themselves.

      1. Heh, I thought I could get some people to cross the left/right divide and criticize one of their side’s heroes.

        See, there’s no need to predictably, and in knee-jerk fashion, side with your own.

        And of course, by inserting himself into a quarrel among the elected branches (Pres and Congress) over an ongoing war, Douglas was going beyond what have traditionally been considered the responsibilities of judges.

        In this case, of course, the elected branches are not in conflict. The elected branches of Texas have restricted lots of activities, including abortion, for the sake of containing an epidemic.

        So, indeed, judges inserting themselves into an ongoing epidemic to question the government’s public-health decisions is comparable to Douglas inserting himself into an ongoing war – only worse, because unlike with Douglas, the elected branches are all on the same page.

        1. No it isn’t. The war power is nonjusticiable and Douglas knew it. He was just putting on a show.

          Whereas these judges know damned well Casey requires that Texas women have abortions available to them and are trying to restrict it anyway.

          1. How does one know the true meaning of a vague and contradictory opinion by three judges in 1992, thumping their chests about the importance of precedent and then undertaking to rewrite Roe v. Wade?

            How can anyone “know,” much less “damn well,” what such a fuzzy pronouncement means?

            Remember that 1992 was a different era, and that trying to discern the “true intent” of what people said in the past is simply not a viable enterprise. /sarc

            In any case, they didn’t have to deal with a pestilence so virulent as to justify suspending even the First Amendment right of peaceable assembly –

            https://www.newsobserver.com/news/politics-government/article241919161.html

            -so it would be strange if other constitutional rights were no longer unaffected but so “damn well” unaffected that everyone knew it.

            1. not only unaffected

    2. Presumably, you personally are willing to let these poor, almost-but-not-quite-viable humans live within your flesh, if only you could.

      1. Haven’t you heard? Men have the right to have babies!

        Only a cisgendered bigot will say only women have babies.

        It’s like you totally ignore science.

        https://thefederalist.com/2019/06/28/learned-pro-life-women-abortion/

        1. I mean, National Public Radio was focusing on the plight of pregnant men over five years ago – you need to keep up!

          https://www.npr.org/sections/health-shots/2014/11/07/362269036/transgender-men-who-become-pregnant-face-health-challenges

          1. And if you need more expert testimony, there’s the American Civil Liberties Union:

            “Men who get their periods are men.

            “Men who get pregnant and give birth are men.

            “Trans and non-binary men belong.
            “#InternationalMensDay”

            I don’t know why you can still spout transphobic nonsense in this enlightened age.

            https://twitter.com/ACLU/status/1196877415810813955

            1. “I don’t know why you can still spout transphobic nonsense in this enlightened age.”

              It’s almost like you don’t have a clue.

              1. Don’t you oppress me!

                1. You find being confronted with contrary opinions to be oppressive. You poor victim, you. Do you need a “safe space”?

                  1. Understanding Monty Python references is part of cultural literacy.

        2. “It’s like you totally ignore science.”

          It’s more like you totally avoided answering the question.

          1. The only question I want to answer right now is the one to which the correct reply is “you’re a jerkface.”

            1. You’re a jerkface

              1. The question was “why should your rantings be ignored?”

                The other acceptable answer was “likes to talk to himself to damn much.

  6. As I mentioned in an earlier post, I thought mandamus was inappropriate. The fact that the 6th Circuit had sustained a similar order meant that the District Court’s order couldn’t be obviously wrong as a legal matter, no matter how strongly the panel may have personally felt about it. The 5th Circuit should have gone through the regular appeal process, perhaps on an expedited basis, perhaps staying the order in the meanwhile.

    For three to be an orderly legal system, the opinions of others have to be considered in deciding what is obviously wrong, just as they have to be considered (in my view, and on some issues also Justice Kagan’s) in deciding what is rational. A position taken by a circuit court of appeals simply cannot be treated by another one as if it were frivolous.

    Judges have to treat their colleagues with respect and regard their opinions as reasonable. And reasonableness, like rationality, most have some element of an objective or imperial rather than a purely subjective or mental-process character. If reasonable minds, or minds one otherwise has to accept as reasonable, have In fact arrived at a position, than one has to accept that they can, no matter dumbfounding one may find it that this is so.

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