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How Trump Judges Have Shaped the Challenges to COVID-19 Abortion Restrictions

Republican governors in mostly Southern states (what's up Ohio and Iowa) have issued orders restricting abortion procedures during the public health emergency caused by the pandemic. And what's an abortion restriction without a lawsuit challenging it?

Abortion clinics and reproductive rights groups—sometimes joined by pro bono Big Law counsel—have repeatedly gone to court seeking orders that would allow procedures to continue in the targeted states during the health crisis.

So far, every trial judge presiding over the cases has issued orders that allow at least one form of abortion to continue during the pandemic. And some of the jurists shaping the legal fights were appointed to the bench by President Donald Trump.

In Oklahoma, Trump appointee U.S. District Judge Charles Goodwin, faced with a challenge to a state abortion ban filed by the Center for Reproductive Rights, Planned Parenthood and Dechert, granted a temporary restraining order against the policy in late March.

"As set forth below, the court concludes that while the current public health emergency allows the state of Oklahoma to impose some of the cited measures delaying abortion procedures, it has acted in an 'unreasonable,' 'arbitrary,' and 'oppressive' way—and imposed an 'undue burden' on abortion access—in imposing requirements that effectively deny a right of access to abortion," he wrote.

A three-judge panel on the U.S. Court of Appeals for the Tenth Circuit—made up of Clinton and Obama appointees—last week rejected the appeal for a lack of jurisdiction, allowing the TRO to remain in place.

In Texas, it was all a bit trickier and nearly set off a U.S. Supreme Court ruling on a topic some justices are typically eager to avoid.

U.S. District Judge Lee Yeakel, a George W. Bush appointee, rejected the ban implemented by Texas Republicans. But a panel on the U.S. Court of Appeals for the Fifth Circuit reversed his ruling, siding with state officials. The decision was 2-1, with Trump appointee Judge Kyle Duncan and George W. Bush appointee Judge Jennifer Walker Elrod in the majority, and Judge James Dennis, a Clinton appointee, dissenting.

"The bottom line is this: when 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,'" Duncan wrote.

Abortion rights groups then went back to Yeakel with a motion that would grant a narrower exception for abortions during the health emergency, which he granted. But the Fifth Circuit rejected the providers' arguments yet again, sparking a petition to the Supreme Court.

The Fifth Circuit panel later ruled to allow abortions by medication during the pandemic. And the abortion providers withdrew their Supreme Court petition, reprieving the justices from having to weigh in on a situation tied to the health crisis for a second time.

But a week later, the Fifth Circuit made yet another ruling that allowed the state to go ahead and ban the medication abortions as well. Got whiplash yet?

The fight seemed to come to an anti-climatic end on Wednesday, when lawyers for Texas said in a filing that there is no longer a ban on abortions in the state tied to the pandemic. And the abortion providers behind the challenge yesterday withdrew their motion for a preliminary injunction.

There's always a possibility that Texas could reissue the ban, as the pandemic is ongoing. But with other southern states already lifting some other restrictions, who knows.

Here's how judges in other states have ruled so far:

>> Alabama: U.S. District Judge Myron Thompson, a Carter appointee, granted a preliminary injunction blocking the abortion restrictions. "Based on the current record, the defendants' efforts to combat COVID-19 do not outweigh the lasting harm imposed by the denial of an individual's right to terminate her pregnancy, by an undue burden or increase in risk on patients imposed by a delayed procedure, or by the cloud of unwarranted prosecution against providers," Thompson wrote. [CBS News] A three-judge panel on the U.S. Court of Appeals for the 11th Circuit, all Obama appointees, on Thursday rejected a motion for a stay of the injunction but expedited the appeal.

>> Arkansas: U.S. District Judge Kristine Baker, an Obama appointee, issued a temporary restraining order against the state's order blocking elective abortions. The motion was filed by the ACLU of Arkansas, O'Melveny and Myers and Little Rock attorney Bettina Brownstein. [Arkansas Democrat Gazette] A three-judge panel on the U.S. Court of Appeals for the Eight Circuit—a H.W. Bush appointee, W. Bush appointee and Trump appointee—ruled Wednesday that the state can block surgical abortions, but not medication ones. [NPR]

>> Ohio: U.S. District Judge Michael Barrett, appointed by George W. Bush, issued a temporary restraining order against the state's ban on all abortions. A panel on the U.S. Court of Appeals for the Sixth Circuit—featuring Clinton, Reagan and Trump appointees—dismissed the appeal for a lack of jurisdiction, and Barrett later extended the restraining order allowing surgical abortions to continue in the state. [The Columbus Dispatch] Barrett on Thursday granted a preliminary injunction in the case.

>> Tennessee: U.S. District Judge Bernard Friedman, a Reagan appointee, ruled last Friday that the state could not block abortions during the pandemic. [ABC News]

>> Louisiana: Groups have sued to challenge the state's abortion ban, on behalf of a clinic that's already at the heart of a Supreme Court case on abortion regulations. [The Washington Post.]

>> Iowa: Reproductive rights groups initially went to court over a state order against nonessential surgeries, but dropped the case after state officials clarified that it did not ban all surgical abortions. [Sioux City Journal]

Is Roger Stone Going to Blame His Lawyers?

Take it with a grain of salt because there aren't any court filings yet. But Roger Stone yesterday opened the door to a potential claim of ineffective counsel. From Stone friend Frank Morano's "Morano Whenever" podcast on AM 970 The Answer:

Stone: There was nothing that was presented at trial that my lawyers could not have rebutted in a far more effective and forceful way. In retrospect Frank, I have to be honest with you, I should have represented myself. I may not have been able to file all the forms correctly because I'm not a trained attorney, but I have a right to defend myself.

Morano: Do you think your trial attorneys did you a disservice with how they represented you in this trial?

Stone: Yes, unfortunately I do.

Morano: Do you think—again I know you're praying for a pardon—but do you think you would explore an ineffective assistance of counsel motion, even though that certainly can be a longshot, would you explore that down the line?

Stone: In the judge's most recent decision she basically said, your lawyers should have known that. I think she just bolstered such a claim.

There you have it. But to note—Stone did defend his lawyers just a couple minutes earlier on the podcast, over Judge Amy Berman Jackson's accusation that they filed a motion for her to recuse herself as a publicity stunt.

Considering that prison is becoming a more certain reality for Stone, it's unclear what he'll do next. He didn't rule out an appeal of his case, but did call it a "million dollar adventure" and that he's "praying for a pardon."

What We're Reading

>> Former Stone Prosecutor Who Quit DOJ Joins DC Attorney General Office: "[Jonathan] Kravis' move comes just months after he departed the U.S. attorney's office in Washington, in apparent protest of the Justice Department leadership's remarkable intervention in the sentencing of Roger Stone. Last year, Kravis played a leading role in the prosecution of Stone, a longtime friend and confidant of President Donald Trump who was found guilty of obstructing a congressional investigation, lying to investigators and intimidating a witness who went on to testify at his trial." [National Law Journal]

>> US Judge Won't Force Open Coronavirus Relief to Lobbyists, Political Consultants: A federal judge on Tuesday night refused to force the Trump administration to open a door to providing coronavirus relief funds to political consultants and lobbyists who contend they've been unfairly cut out of receiving aid amid the pandemic. 'The executive and legislative branches quickly responded to the COVID-19 crisis with this virtually unanimous legislation,' U.S. District Judge Royce Lamberth in Washington wrote in an order published Tuesday. 'For the judicial branch to intervene now and issue the requested injunction under these circumstances would not be in the public interest.'" [National Law Journal]

>> Courts again side with scientists after EPA blocked grantees from serving on its boards: "Former Administrator Pruitt had argued scientists who had already received funding from the agency would have a conflict of interest, disrupting their ability to offer sound scientific advice on any number of committees that advise the agency. But a three-judge panel for the circuit said the policy incorrectly conflicts with the longstanding practice of allowing grant recipients to serve on scientific committees. "The directive itself agrees that 'it is in the public interest to select the most qualified, knowledgeable, and experienced candidates.' Yet the directive nowhere confronts the possibility that excluding grant recipients—that is, individuals who EPA has independently deemed qualified enough to receive competitive funding—from advisory committees might exclude those very candidates," Judge David Tatel wrote for the panel." [The Hill]

>> Administrative Law Judges, Repped by Gupta Wessler, Challenge Constitutionality of Trump Labor Appointees: "The administrative law judges, who typically oversee Social Security disability hearings, claim parts of their new contract with the Social Security Administration should be nullified due to the unconstitutionality of the appointees, who set the terms of those disputed parts of the contract. The union argues that Trump stacked the panel with anti-labor figures, who sided with the administration on most disputes and, in some instances, placed even tougher restrictions on the judges than those proposed by the administration." [National Law Journal]

>> As the U.S. shut down, Trump's legal fight to build wall ramped up: "In the past 12 months, the administration opened 41 cases in federal court to seize land to build a wall along the southern border of Texas. Nearly half of those cases – 16, or 39 percent – were filed in the past two months. The bulk of the new filings came in March, when the administration opened 12 cases, the most in any month under Trump, a Reuters review of federal filings found." [Reuters]

Thanks for reading! I'll be back next week with another version of Trump Watch. Stay safe.