Why Judicial Appointments Matter

From Slate today:

Before Donald Trump nominated him to the federal bench, John K. Bush was perhaps best known as an anti-gay blogger who spread birther conspiracies. Now he is a judge on the U.S. 6th Circuit Court of Appeals. Bush was selected, in part, because of his conservative views on reproductive rights, including a belief that abortion is a tragedy on par with slavery. On Thursday, he transformed those views into law, upholding Kentucky’s “informed consent” law in an opinion overflowing with charged anti-abortion rhetoric.

The Kentucky law at issue is extraordinarily invasive. It requires abortion providers to perform an ultrasound, generally using a transvaginal probe for pregnancies of less than nine weeks, on all patients seeking to terminate their pregnancies. The provider must then describe the fetus in detailed terms, pointing out its organs, and play the sound of its heartbeat. Patients can only avoid this sound and description if they cover their ears and make noises to drown it out.

I am trying to identify what state interest this serves. Does it simply make the Kentucky state legislature feel better to know that they got to put some poor woman (who no doubt will wrestle with the decision to terminate her pregnancy for the remainder of her life) through a series of mental tortures?

Again, from the article, quoting a woman who testified regarding her experience during this "description."

While the staff at the abortion clinic did all they could for me, this experience was nothing short of torture. I had to lie on an examination table, with my feet in stirrups. My belly was exposed with the ultrasound gel and abdominal probe on it while we saw images of our sick child forming on the screen for the third time that day. Before the doctor even started the description, I began to sob until I could barely breathe. My husband had to calm me down and the doctor had to wait for me to find my breath.

The description the doctor provided was perhaps the most devastating part because although our baby was profoundly ill, he had healthy organs too. So, the doctor was forced to describe—and I to hear—that he had a well-developed diaphragm and four healthy chambers of the heart. His words were unwelcome and I felt completely trapped. I closed my eyes. I twisted away from the screen. The doctor and staff repeatedly apologized for making us go through this, but their compassion could not ameliorate my pain.

This is what is at stake when we talk about judges and reproductive rights. I had a commenter tell me that, even with Justice Kegstand Kavanaugh on the bench, Roe v. Wade will not be overturned. My commenter can be forgiven for not realizing that Justice Kennedy substantially limited Roe in the matter of Planned Parenthood v. Casey, which simply held that a state can't put "unreasonable restrictions" on a woman's right to family planning services, including abortion.

What amounts to "unreasonable," I can say from years of experience in litigation, is very much in the eye of the beholder.

Two final points:
1. Remember, a government that has the power to prevent you from getting an abortion is a government powerful enough to compel you to get one. Most pro-choicers, myself included, don't revel in the notion of terminating pregnancies. For us, the issue is who gets to choose to terminate a pregnancy or not. Apparently many pro-lifers believe that is a choice best left to the government (ironically, so many of these so-called pro-lifers label themselves "small government conservatives," but I digress).

2. Further, insofar as people argue about "states rights," just remember that if Kentucky can do this, New York or California can pass laws allowing abortion up to the day (or hour, or minute) before birth. When you devolve responsibility to the states, you can't then micromanage how they handle such responsibility.