There is plenty of reason for worry over the ruling by a federal judge in Arizona upholding a strict abortion ban after the 20th week of pregnancy that MB highlighted on the front page today. I have practiced continuously in federal courts at all levels since 1979. For some reason, federal court stories interest me, and I can't help making suppositions based upon my lifetime of experience dealing with these institutions.
For several years in the 90's I practiced regularly in the United States Supreme Court, as well as in my State's trial and appellate courts. Since then I have practiced in State and Federal trial and appeal courts, though my practice became exclusively federal nine years ago. I am admitted in numerous local district (federal trial) courts and in the U.S. 10th and 5th Circuit Courts of Appeals where I have often had oral arguments.
Follow me into the tall grass if you are interested in what my suppositions about this terrible abortion decision might be.
First, I will share the Silver Lining to the seemingly aberrant usurpation represented by the trial by ambush (see Fn 2, p. 15) that led to the court decision in question.
Ninth Circuit Court Of Appeals Map
Our hope for salvation from this diabolical legal wrinkle lies in the reputedly liberal 9th Circuit.
I don't claim any special competence with this case or with the 9th Circuit. In all my years I've appeared there twice, that come to mind: once in a California truck wreck and once in a Supreme Court case involving liquor.
But I know that the 9th Circuit wrote a thoughtful and legally correct opinion in the Prop 8 case and I know the reputation of the 9th Circuit and I take heart. This ruling will not survive 9th Circuit review.
I don't claim any special competence about what the U.S. Supreme Court will do. My practice became confined on a day to day basis to a much lower level a long time ago as I specialized.
But I do know that the Supreme Court, as an institution, is inherently conservative, in the good sense of the word, now, at least, since the Court has taken it's disturbing lurches to the Right. I know that there are bomb throwers on the Court like Scalia and Alito. But Roberts is enigmatic and may yet tilt in favor of the institution against other bombs, like this impudent decision by the Judge Tielborg in Arizona.
And I know another thing. It was the building weight of medical opinion that played a pivotal role in the outcome of Roe v. Wade. The same kind of weight exists now in the medical case that the Arizona judge disregarded by rushing to judgment in the case before him.
And Roberts has a daughter.
I am cautiously optimistic that this aberration will not receive Supreme Court review, or receiving, it, will not survive.