Trump judges uphold abortion waiting period, overturn 50 year old gun law, and allow gender discrimination in school


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Abortion law

All six Trump-appointed judges on the 6th Circuit Court of Appeals joined with three George W. Bush appointees to allow Tennessee’s restrictive abortion law to remain in effect. Last year, District Court Judge Bernard Freidman (Reagan appointee) struck down the state’s 2015 law requiring a 48-hour waiting period before obtaining an abortion, finding it placed a substantial burden on women.

The state appealed, seeking a stay, and a three-judge panel of the 6th Circuit denied the pause. Trump judge Amal Thapar dissented from the panel’s majority, advising the state to immediately appeal to the full circuit or to the Supreme Court. Tennessee took the first option, leading to the latest decision allowing the 48-hour waiting period to remain in effect while the appeal is pending.

The majority granting the stay (PDF) was made up of all Trump judges – Thapar, Bush, Larsen, Nalbandian, Readler, and Murphy – plus George W. Bush appointees Sutton, Griffin, and Kethledge.

Clinton appointee Karen Nelson Moore dissented (page 17), joined by Gibbons (W. Bush appointee), White (W.), Cole (Clinton appointee), Clay (Clinton), Stranch (Obama appointee), and Donald (Obama).

Considering the waiting period’s practical effects, the district court found “that the statutory waiting period burdens the majority of abortion patients with significant, and often insurmountable, logistical and financial hurdles”—delaying the procedure far more than the nominal 48 hours and increasing the cost of the procedure alone as much as twofold… Coupled with the costs of attending a second in-person appointment—travel expenses, lost wages, childcare, and more—the district court found that the waiting period put the 60 to 80 percent of women seeking an abortion in Tennessee who qualify as low-income at “grave risk” of sacrificing basic necessities in order to have an abortion…The district court found, moreover, that the law’s actual delays—as long as four weeks for a second appointment—pushed many women past the cutoff for a medication abortion, forcing them to undergo a more invasive, painful, and costly surgical procedure to terminate their pregnancies…

An honest look at the record compels but one conclusion: a law that peddles in stigma, forces women into unnecessary and invasive surgical procedures, and forces low-income women to sacrifice basic necessities for themselves and their families in order to obtain an abortion is nothing if not an undue burden. I dissent.

Trump appointee Amy St. Eve wrote a 2-1 opinion upholding an Indiana “abortion complication” reporting law that could subject providers to jail time. The law, Senate Bill 340, passed by the legislature in 2018 vaguely defines an abortion complication as “any adverse physical or psychological condition arising from the induction or performance of an abortion.” Planned Parenthood sued, arguing that the language was unconstitutionally vague. A district court agreed, issuing an injunction.

In 2019, the Indiana legislature amended the law to list specific complications but left in place “psychological complications” and “other adverse events” as required reporting conditions. Further, the revised law includes conditions that could have other causes; depression, for example. Indiana Southern District Court Judge Richard Young again found the phrasing to be unconstitutionally vague (PDF):

“Consider a physician who treats a woman who previously obtained an abortion and is experiencing depression. Under the statute, the physician must decide whether the patient’s depression arose from the abortion procedure. But that statute provides no guidance as to how the physician — who is not a licensed psychiatrist or clinical psychologist — must make that determination.”

However, last week, St. Eve joined with Reagan appointee Frank Easterbrook in overturning Young’s ruling (PDF). Judge Diane Wood, a Clinton appointee, dissented (page 25):

People cannot be required to play a game of “Twenty Questions” to figure out what exactly they have done (or perhaps someone else has done) that might, or might not, violate a particular law. And courts are not permitted to rewrite statutes to provide that clarity…

The majority concedes that the Indiana statute before us does not tell the Reporter “the extent to which a complication must be caused by the abortion itself.” This is a serious flaw, and it permeates the statute, thus making this case appropriate for a facial challenge. Not a single condition on the state’s list is unique to abortions, and so a medical-care provider will have no idea whether or not he or she has a reporting obligation.


4th Circuit Trump judge Julius Richardson wrote a 2-1 opinion finding that the federal ban on sales of handguns from licensed dealers to those under 21 is unconstitutional. Richardson joined with Judge Steven Agee, a George W. Bush appointee, in ruling that “despite the weighty interest in reducing crime and violence,” “18-year-olds possess Second Amendment rights” (PDF),

Judge James Wynn (Obama appointee) dissented, writing that the court has no right to overturn the 50-year law in question (page 89):

…the majority’s decision to grant the gun lobby a victory in a fight it lost on Capitol Hill more than fifty years ago is not compelled by law. Nor is it consistent with the proper role of the federal judiciary in our democratic system… “[n]o one really knows what the right answer is with respect to the regulation of firearms,” we federal judges ought not “[d]isenfranchis[e] the American people on this life and death subject” by arrogating to ourselves “decisions that have been historically assigned to other, more democratic, actors”.

To be sure, the Second Amendment’s right to keep and bear arms is an exceptional right, just not in the way the majority imagines. According to my colleagues, even though all individual constitutional rights are subject to limitations, the Second Amendment risks being relegated to a disfavored “second-class status.” …No, the Second Amendment is exceptional not because it is uniquely oppressed or imperiled, but rather because it is singularly capable of causing harm. As other courts have recognized, while there are dangers inherent in other constitutionally protected rights—like the rights to speak and assemble—the Second Amendment alone protects a direct and lethal right to endanger oneself and others.

Criminal trial

A Trump appointee cast the deciding vote last month keeping a man in prison despite his trial lawyer failing to challenge inadmissible testimony. In 2011, Marvin Tarleton was sentenced to 30 years in prison for an unarmed bank robbery, despite not being linked to the scene of the crime with forensic evidence. A detective testified during the trial that estranged family members identified Tarleton from surveillance photos, but the family members did not provide testimony. Tarleton’s lawyer failed to object to the detective’s statements.

Trump appointee Robert Luck joined with an 84-year-old Carter appointee, Lanier Anderson, to deny Tarleton’s petition. They ruled that the detective’s testimony should have been objected to as inadmissible, but did not find the admission held enough weight to change the outcome of the trial (PDF).

Rosenbaum dissented (Page 32):

Marvin Tarleton is spending 30 years in prison after a jury found he stole $3,429 from a Bank of America branch. But the admissible evidence against him was so underwhelming that the State apparently felt it had to rely on inadmissible hearsay evidence from three witnesses it could have chosen to subpoena (but didn’t) to convict him. And Tarleton’s lawyer did not object to a lick of it. In my view, this ineffective performance and the resulting admission of the inadmissible hearsay evidence seriously “undermine[s] confidence in the outcome,” Strickland v. Washington, 466 U.S. 668, 694 (1984), of Tarleton’s trial, and the state court’s conclusion to the contrary represents an unreasonable determination of facts. I would therefore find prejudice and grant the habeas petition on Tarleton’s Strickland claim

The State’s emphasis of this inadmissible hearsay evidence from three different witnesses in its closing arguments shows that even the State recognized the power of that evidence. So in my view, a simple review of the trial transcript reveals that counsel’s ineffective assistance in failing to object to the evidence and its use was not harmless. And that’s enough to undermine confidence in the outcome here.


A Trump-appointed judge ruled on Friday that the Biden administration must reinstate Trump’s “remain in Mexico” policy. Northern District of Texas Judge Matthew Kacsmaryk, a member of the Federalist Society, ruled that the Department of Homeland Security’s memo rescinding the policy was “arbitrary and capricious for a lack of reasoned decisionmaking” (PDF). He also cited the Trump administration’s agreement with Texas to “consult” with the state “and consider its views before taking any action” that would modify immigration enforcement.

Kacsmaryk’s opinion reads like an advertisement for Trump’s administration:

…Secretary [Mayorkas] failed to consider several of the main benefits of MPP. As the Court stated above in the findings of fact, DHS had previously found that “aliens without meritorious claims — which no longer constitute[d] a free ticket into the United States — [were] beginning to voluntarily return home.” …DHS also found that MPP addressed the “perverse incentives” created by allowing “those with non-meritorious claims . . . [to] remain in the country for lengthy periods of time.”

The June 1 Memorandum never once mentions these benefits. At the very least, the Secretary was required to show a reasoned decision for discounting the benefits of MPP. Instead, the June 1 Memorandum does not address the problems created by false claims of asylum or how MPP addressed those problems. Likewise, it does not address the fact that DHS previously found that “approximately 9 out of 10 asylum claims from Northern Triangle countries are ultimately found non-meritorious by federal immigration judges,” App. 303, and that MPP discouraged such aliens from traveling and attempting to cross the border in the first place. A


Two Trump judges on the 4th Circuit Court of Appeals ruled that a public charter school can require female students to wear skirts. The case, brought by parents of female students and the ACLU, hinged on the claim that requiring girls to wear skirts is a violation of the constitution’s equal protection clause, which prohibits most kinds of sex discrimination. Eastern District of North Carolina Senior Judge Malcolm Howard (Reagan appointee) agreed and ruled against the school.

However, last week a majority of the three-judge panel, made up of Trump appointees Marvin Quattlebaum and Allison Rushing, found that despite being funded by state money, the “charter school here was not a state actor when promulgating the dress code and, thus, is not subject to an equal protection claim” (PDF).

Judge Barbara Keenan (Obama appointee) dissented (page 42), citing the school’s own statements defending the skirt requirement:

Baker Mitchell, the founder of CDS, explained that the skirts requirement embodies “traditional values.” According to Mitchell, the requirement for girls to wear skirts was part of CDS’ effort “to preserve chivalry and respect among young women and men,” which also included requiring boys “to hold the door open for the young ladies and to carry an umbrella” to keep rain from falling on the girls. Mitchell later elaborated that chivalry is “a code of conduct where women are treated, they’re regarded as a fragile vessel that men are supposed to take care of and honor.” Mitchell explained that, through the skirts requirement, CDS sought to “treat [girls] courteously and more gently than boys.” CDS board members agreed with these assessments, including CDS’ goal of fostering “traditional roles” for boys and girls.

Keenan continues:

I also would affirm the district court’s holding that the skirts requirement plainly violates the Equal Protection Clause. In its attempts to justify the sex-based classification, CDS has offered nothing more than harmful stereotypes about how girls should look, behave, and be treated by boys, based on the archaic, unsupported concept that girls are “fragile” and must be handled “gently.” We should be long past the days of condoning such differential treatment under the guise of “chivalry,” a justification that the Constitution does not tolerate. Moreover, the skirts requirement does not bear any logical relationship to the attainment of any important governmental objective.