Texas Two Step: A Pair of Right-Wing Judges Say “Meh” to Laws That Protect Women

Issue 278

An Amarillo, Texas federal judge is poised to ban key abortion pill nationwide while another judge says alleged wife-beaters have a constitutional right to own guns. 

Steven Wishnia Mar 23, 2023

Read also: Will Supreme Court Scrap NY Rent-Control Laws?

Alleged wife-beaters have a constitutional right to own guns, a federal appeals court in Texas ruled last month.

A three-judge panel of the Fifth Circuit Court of Appeals on Feb. 2 held that the 1994 federal law prohibiting people under a domestic-violence restraining order from possessing firearms was unconstitutional. It cited the Supreme Court’s decision last year that gun regulations violate the Second Amendment unless the government can prove they are “consistent with the Nation’s historical tradition of firearm regulation.” 

The few state gun restrictions in effect when the Constitution was written, Judge Cory T. Wilson’s opinion argued, “were not targeted to domestic violence or even more specifically to domestic homicide.” Therefore, the 1994 law, a provision of the Violence Against Women Act, was “an outlier that our ancestors would never have accepted.”

The ruling vacated the conviction of Zackey Rahimi, who had been involved in several shootings in the Dallas-Fort Worth area in December 2020 and January 2021, including a drug-deal dispute, a road-rage incident and firing at a police officer’s car. When police searched his home and found two guns, they also learned that he was under a restraining order for allegedly assaulting his ex-girlfriend, and arrested him.

The Justice Department argued that it was constitutional to deny guns to people who weren’t “law-abiding citizens.” The appeals court rejected that, saying that Rahimi had not been convicted of a felony, but had “merely been civilly adjudicated to be a threat to another person.” 

By that standard, Wilson asked, “Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle?”

“Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees,” he concluded.

The decision reversed a ruling by an earlier Fifth Circuit panel upholding Rahimi’s conviction. It had said the restraining-order law was reasonably adapted to the government interest of reducing domestic gun abuse. But the Supreme Court’s 2022 decision, Wilson wrote, “expressly repudiated” such balancing tests, making “historical tradition” the only valid standard.

Attorney General Merrick B. Garland said the Justice Department would appeal, insisting that “the statute is constitutional.” 

Two of the judges on the panel, Wilson and James Ho, were appointed by Donald Trump. Ho in a concurring opinion contended that bogus civil-protection orders are common in divorce cases. The third, Edith Jones, was appointed by Ronald Reagan. In 2013, she told a law-school forum that “racial groups like African Americans and Hispanics are predisposed to crime.”

Medication-Abortion Cutoff?

Meanwhile, another Trump-appointed judge in Texas might order one of the two drugs used in medication abortions taken off the market. Federal District Judge Matthew Kacsmaryk is entertaining claims by a Christian-right medical group that the Food and Drug Administration did not have the authority to approve mifepristone, the first part of the two-step procedure, in 2000.

If he accepts those claims, he could block the use of the drug nationwide until the case is considered by a higher court — in this case, the Fifth Circuit. Because of a quirk in federal judicial procedures in Texas, Kacsmaryk is now the only judge hearing new cases in the Amarillo area, so litigants can file cases there knowing that he will preside over them. 

Kacsmaryk was formerly a lawyer for a Dallas-area Christian-right litigation outfit, and his decisions have reflected that. In December, he ruled that it was unconstitutional for federally funded clinics to give birth control to people under 18 without their parents’ consent, saying that a father’s ability to raise his daughters in the Christian faith was weakened if they had access to things that “facilitate sexual promiscuity and premarital sex.” 

The anti-mifepristone lawsuit has “weak legal arguments” and “represents a serious risk to public health,” two lawyers and a doctor wrote in the New England Journal of Medicine March 9. They said it was “suggesting — contrary to statutory text, regulatory authority, and longstanding practice — that an agency isn’t empowered to do its job.”

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