Judges Ask: How Bad Is Too Bad for Texas Women Seeking Abortions?
The state of Texas has argued that it doesn’t matter what the American Medical Association says, because it has the right to regulate the practice of medicine as it sees fit, without having to prove that it’s based in evidence.
Both Judge Jennifer Elrod and Jones seemed to agree with the state of Texas that the burden of proof is on the plaintiffs, not the state, which is the crucial legal point at stake. But Crepps argued that the state itself had justified the law as benefiting women’s health. More importantly, she said, “We believe, given the constitutional status of abortion as a fundamental right, that means strict scrutiny of health regulations [around it].”
The Judges’ questioning of Texas solicitor general Jonathan Mitchell was more restrained and technical. Jones did remark sardonically, “I know you think you’re preparing for the Supreme Court.” (Indeed, when the preliminary injunction stage was before the Supreme Court, Justice Breyer wrote in his dissent that he believed there were enough votes for the Court to eventually take the case.)