“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
In a disturbing imitation of the Trumpified Supreme Court’s “shadow docket,” Trump Fifth Circuit judges Kyle Duncan and Kurt Engelhardt were two of the three judges who issued unsigned orders without explanation that cancelled and refused to reschedule a preliminary injunction hearing against a restrictive Texas law that bans abortion after six weeks, which is now scheduled to go into effect on September 1. The August 2021 orders were issued in Whole Woman’s Health v Jackson.
Texas recently passed what has been called the “nation’s strictest” abortion law, which prohibits abortion as soon as a fetal heartbeat can be detected, after about six weeks of pregnancy. The law also sets up a “bounty hunting scheme” to enforce the law, under which any person who is not a government official can file a lawsuit against anyone they think violated it and, if they succeed, receive statutory damages of at least $10,00 per abortion, plus costs, attorneys’ fees, and injunctive relief. Reproductive rights groups and doctors filed a lawsuit challenging the law, and a district court hearing on a motion for a preliminary injunction against it had been scheduled for August 30, two days before the statute is to take effect.
On Friday night, however, Trump judges Duncan and Engelhardt, along with highly conservative Bush nominee Edith Jones, issued an unsigned order that granted a stay sought by the state of all district court proceedings in the case, including specifically the “upcoming preliminary injunction hearing.” As with a number of recent Supreme Court “shadow docket” orders, the Fifth Circuit order was unsigned and had no explanation whatsoever. The reproductive rights groups responded on Saturday by filing emergency motions asking the appellate court to either return the case to the district court or itself consider a temporary injunction against the law. On Sunday, the same three judges denied that motion, again with absolutely no explanation.
Experts have predicted that the court’s actions will produce extreme and potentially catastrophic results. If the law is not blocked by September 1, an attorney with the Center for Reproductive Rights explained, “abortion access in Texas will come to an abrupt stop.” A Planned Parenthood official suggested that “chaos and problems on the ground, including the closing of health centers” will result. Even if the clinics remain open, officials have explained that they will comply with the law, which would prohibit some 90% of abortions performed in Texas.
At this date, we do not know whether any further legal action can stop the draconian Texas law, either before or after September 1. The case is a stark reminder of the importance, as part of our fight for our courts, of confirming Biden nominees to all our federal courts who will respect reproductive and other rights and can counteract the troubling votes of Trump judges like Duncan and Engelhardt.
Update: On Monday afternoon August 30, the abortion providers filed an application with Justice Alito asking that he or the full Court either vacate the stays so the district court can move forward or itself block the new law from taking effect because of the irreparable harm it will cause.