Courts Push Back Against Republicans

A.G. Sulzberger has a good article about about recent federal court decisions preventing various radical anti-abortion and anti-immigration measures passed by Tea Party-dominated legislatures from going into effect. Particularly interesting are the injunctions against measures like South Dakota's three-day waiting period for women seeking abortions and the onerous Kansas regulations designed to cause two of the state's three abortion providers to close. These regulations go beyond the regulations upheld in Planned Parenthood v. Casey, the controlling Supreme Court precedent, but are not clearly precluded by it either. How the lower federal courts interpret Casey's vague "undue burden" standard will determine in the short term whether or not women in these states will have their access to abortion further restricted by arbitrary regulations.

Eventually, some of these new regulations will probably be evaluated by the Supreme Court, which would not be good news given its current configuration. In the meantime, however, these decisions are good lessons about why getting as many good judges on the lower federal circuits should be a bigger priority. Supreme Court precedents often leave wide room for discretion, and particularly since they review only a tiny fraction of cases, it's often lower courts who effectively decide how Supreme Court decisions will be applied in practice. Casey will mean very different things depending on who's applying it, and this means that getting judges committed to actually protecting reproductive freedom onto all levels of the federal courts is important. And the same is true for many other issues.