5th Circuit, Abortion, Texas

Identity Politics, The Fifth Circuit, And The Texas Abortion Case

As Elie reported on Monday, U.S. District Judge Lee Yeakel upheld part and struck down another part of a new Texas law regulating abortion. On Tuesday, the Attorney General’s office sought an emergency stay pending appeal and an expedited schedule for the appeal itself. As of press time, the Fifth Circuit has not ruled on the stay motion. The Circuit will hear the appeal, expedited or not, in the coming months.

In July, when the legislature debated the bill that would become the law now at issue, I wrote about it. I wrote about why I thought the specific provisions of this law were sensible. I wrote about why I thought those provisions were not “anti-woman” as the filibustering Wendy Davis claimed. I suggested a handful of concrete, practical, truly pro-woman measures that legislators could take if they want to genuinely advocate for the welfare of women — measures that don’t involve using abortion as a cure-all.

Now, prognosticating about the fate of the this law as it moves up to the Fifth Circuit raises some additional wrinkles for those who would frame the abortion debate as a matter of “pro-woman” pro-choicers and “anti-woman” anti-abortion advocates….

Consider the current composition of the court now considering the case. Fifteen active judges currently sit on the U.S. Court of Appeals for the Fifth Circuit, with two vacant seats beyond those fifteen. Of those judges, ten were appointed by Republican presidents. Five of the active judges appointed by Republicans are women — Edith Hollan Jones, Edith Brown Clement, Priscilla Owen, Jennifer Walker Elrod, and Catharina Haynes. Carolyn Dineen King, the one woman on the court appointed by a Democrat, is slated to take senior status on December 31, 2013. Interestingly, this means that while Judge King could conceivably serve on a panel hearing the case, she would not vote in a poll for rehearing en banc if that later occurred, and she could only participate in en banc proceedings if she had personally served on the panel.

Of the thirteen federal Courts of Appeal, only the Ninth Circuit currently has more active female judges than the Fifth Circuit does. Yet, no one with a modicum of good sense looks at these facts and suggests that gender loyalty will determine the fate of Texas’s new abortion law. As well it should not.

We don’t know for sure how any of these judges — female or male, conservative or liberal — would rule on this case. However, the make-up of this particular court demonstrates that predicting the outcome of a case based on simplistic assumptions about women’s fidelity to the cause of convenient abortion is unwise. Determining the proper legal limits on state regulation of abortion is not about being “pro-woman” or “anti-woman.” The gender of the person arriving at that conclusion, from the bench or as a matter of her own personal opinion, is less dispositive than liberal pundits and abortion advocates would often have you believe.

Another recent high-profile case originating in the Fifth Circuit also underscores the difficulty in assuming how the identity of the decision-maker plays into his decisions. In UT v. Fisher, the affirmative action case that SCOTUS decided (arguably, punted) last term, Judge Emilio Garza wrote the special concurrence in the original panel opinion. Judge Garza, obviously himself Latino, excoriated the use of race- and ethnicity-based preferences in university admissions procedures. He called the Supreme Court’s earlier decision in Grutter “a digression in the course of constitutional law” and a “detour from constitutional first principles.” Judge Garza argued that race-conscious policies can never serve a compelling interest in university admissions. He wrote, “While race inevitably colors an individual’s life and views, that facet of race and its impact on the individual can be described with some precision through an admissions essay. We should not presume that race shapes everyone’s experiences in the same ways and award preference (or a bonus, or a “plus”) accordingly.”

Did Judge Garza suffer from what some critical theorists would call “false consciousness” when he wrote his opinion in Fisher? Do we take his view as a Latino man more seriously or less seriously when he argues against the constitutionality of preferences for his own ethnic group? Should we do either?

Assuming that someone’s identity determines his views on issues that relate to his own demographic is unfortunately apparent in public discussions of both race and abortion.

Proponents of convenient access to abortion often marginalize anti-abortion advocates by denying those advocates full permission to participate in the debate. If you are a man, then clearly you aren’t qualified to opine on whether unborn children — even those you may have fathered — should be protected. If you are a woman past child-bearing age, you simply must have forgotten what it’s like to live with the real possibility of an unwanted pregnancy. If you are a young woman who opposes abortion, you must be so privileged that you can’t appreciate what poor women who want to abort their children face. If you advocate adoption as a meaningful and life-affirming alternative, you will be dismissed unless you ante up and adopt children yourself. If you have adopted children or want to adopt, you aren’t taken seriously unless those children are African-American or Latino or seriously disabled. If you have done that, then you are questioned about the number of children you have adopted. (“Really? Only one?”) And still there will be the question of whether you have since devoted your professional life to the cause of finding homes for all the unwanted children you couldn’t yourself adopt.

Before long, the only individuals qualified by abortion rights advocates to oppose them are impoverished black fourteen year-old pregnant mothers and people who have adopted at least a baker’s dozen of anencephalic minority newborns.

I’m being tasteless here, but truthfully it’s a tasteless ploy by abortion proponents that I’m responding to.

The perspective of individual stakeholders do matter in debates about public policy and law. One’s own direct experience should, in some ways, inform one’s understanding of an issue. Race, ethnicity, gender, sexual orientation, socioeconomic status, religion, personal struggles — these all shape our views. They shape the views of our opponents too. As always, those perspectives are worth listening to.

Nevertheless, when we rely on identity politics, it deprives our culture of acknowledging individual stakeholders while still recognizing that having a stake is not the same thing as coming to a well-reasoned conclusion. Here’s hoping that the Fifth Circuit judges who hear the Texas abortion law challenge manage to do the latter.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com

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