Asked about the case by Senator Leahy, Judge Barrett said this, referring to “the eugenics portion of the bill”:
It is true the state of Indiana did not seek ‘en banc’ rehearing on that, but we had many other states enter the case urging us to take that claim up, and what Judge Easterbrook’s dissent did was explain why he thought it was an open question, but one that’s left to the Supreme Court, and we did not reach any conclusion with respect to it.
No, Judge Barrett. It’s not an “open question.” It’s a question with one answer and one answer only. For now.
(In May 2019, the Supreme Court, over Justice Ginsburg’s dissent, overturned the Seventh Circuit and upheld the fetal-remains portion of the statute. The court denied Indiana’s appeal on the prohibition portion, letting stand the panel’s decision on its unconstitutionality. A separate opinion by Justice Thomas mirrored, fervently and at length, Judge Easterbrook’s complaint.)
Judge Barrett had left the witness chair by Friday, the Judiciary Committee’s wrap-up day. But outside the hearing room, far from Washington, the lock-step march of the Trump administration’s anti-abortion judges continued. With two Trump judges in the 2-1 majority, a panel of the United States Court of Appeals for the Sixth Circuit upheld a Kentucky law that will have the effect of closing the two remaining abortion clinics in the state, a decision that the dissenting judge, Eric Clay, called “terribly and tragically wrong.”
The law requires abortion clinics, in order to maintain their license, to have a “transfer agreement” with a nearby Kentucky-licensed hospital to accept any patients needing care. This is a copycat law in imitation of the admitting-privileges requirement that the Supreme Court has invalidated in two successive decisions. Needless to say, the two Trump appointees in the majority, Judges Joan Larsen and Chad Readler, had to jump through many hoops to justify upholding this law.
But the richest part of their opinion was their assertion that the two clinics, neither of which has been able to reach a hospital agreement, hadn’t demonstrated with sufficient persuasiveness that they would actually have to close. That’s because the law offers the chance to apply for a 90-day waiver. To the clinics’ objection that they can’t remain in business if they can’t assure their staff of employment after 90 days, Judge Larsen had this to say in her majority opinion: “We must presume that the inspector general will consider waiver applications in good faith and will not act simply to make it more difficult for women to obtain an abortion.”
It was somehow fitting for this decision to appear on the day the Judiciary Committee finished its astonishingly rushed confirmation hearing for Judge Barrett. As I read the majority opinion, this thought occurred to me: Here, with Roe v. Wade still on the books, a state can force the closure of all abortion clinics within its borders. So at this rate, when the Supreme Court gets around sooner or later to overturning Roe, how will anyone be able to tell?
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