Those who fear that Brett Kavanaugh's ascension to the Supreme Court would start the erosion of abortion rights across America are mistaken: Kavanaugh hasn't even been confirmed yet, and the erosion has already begun — in Missouri.
In a Monday ruling based on linguistic smoke and mirrors, a three-judge panel of the 8th U.S. Court of Appeals in St. Louis upheld a Missouri law that restricts access to abortion by imposing gratuitous physical standards on abortion clinics. The U.S. Supreme Court struck down a nearly identical Texas law just two years ago.
The flimsy reasoning by the three Republican appellate judges almost reads like a dare to the high court to take up the question again — and why not, with Kavanaugh's expected arrival likely to tip the court to the right? This conservative judicial alignment resulted in part from Democrats' failure to muster enough votes at the polls two years ago. It's also one of the best arguments for getting to the polls in November.
The 2007 Missouri law imposes specific architectural standards on abortion clinics and requires that their doctors have medical privileges at a hospital within 15 minutes of the clinic. Plaintiffs who sued to invalidate the law say neither requirement is medically necessary.
It's a cynical old tactic to deny women their right under the guise of "protecting" them from clinics with unapproved hallway dimensions and so forth. A U.S. district judge last year blocked Missouri's law after the Supreme Court ruled against Texas.
But Monday's appellate decision found that, even though the Supreme Court said having these requirements for clinics was unnecessary to keep abortion safe in Texas, "no such determination about abortion in Missouri was made here."
"Perhaps there was a unique problem Missouri was responding to," the ruling speculates randomly. "Such a problem may require a different response than what was needed in Texas."
No one has suggested that abortion in Missouri is different from Texas or anywhere else. This bizarre bit of legal alchemy appears to be nothing but the appellate court's excuse to ignore precedent, knowing that a new Supreme Court with Kavanaugh on board may well reverse the old one and gut abortion rights.
The Supreme Court that struck down the Texas law on a 5-3 vote was a different bench. Neil Gorsuch hadn't yet filled the late Justice Antonin Scalia's vacant seat, and moderate Justice Anthony Kennedy hadn't yet retired. If the more conservative Kavanaugh assumes Kennedy's seat, any re-vote on the issue could result in a 5-4 reversal.
The plaintiffs should appeal if they can, hoping that precedent will prevail on what Kavanaugh himself terms "settled law." The real solution, however, is longer term: Elections have consequences. If Monday's results strike you as nightmarish, the Nov. 6 vote is your chance to initiate a turnaround.
REPRINTED FROM THE ST. LOUIS POST-DISPATCH