When judges start an opinion with the plea that their only job is to apply the Constitution, they often don’t. When the district court in Planned Parenthood v. Abbott concluded that Texas’ health and safety regulations of chemical abortions were not a “substantial obstacle” to a safe abortion, but still invalidated them, it failed to apply the relevant standard of review from the U.S. Supreme Court’s controlling decision in Gonzales v. Carhart, issued in 2007. Thus, Abbott is ripe for reversal. But although the most obvious, that was only one of several mistakes.
The outcome in Abbott was forecast when the first case that the court cites is the Supreme Court’s 2000 decision in Stenberg v. Carhart, rather than the Supreme Court’s superseding decision in Gonzales. That’s like citing Plessy v. Ferguson rather than Brown v. Board of Education.
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