Big Jolly Politics

politics in Harris County and Texas

A different prospective on how to evaluate legislative candidates

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Many have opined on the strengths and weaknesses of candidates and given endorsements on whom to vote for. That’s not the focus of this post. Rather, this is to give a different prism through which to view candidates running for legislative positions. The candidate who is knowledgeable about how to craft legislation (or at least willing to listen to advice on how to do so) that will survive judicial review is better suited for office. This view shouldn’t be used to winnow candidates, but if a person is undecided this prospective is good to use as a tie breaker so to speak. Since this is a long and somewhat meaty post a summary can be found in the last paragraph.

With HB2 before the Supreme Court next week, it’s time to look at the legislative process to examine how legislation is crafted and what makes legislation more likely to survive judicial review. HB2 will be used for illustrative purposes. For the sake of full disclosure I will note that I submitted a section of a brief on HB2 to Texas Right to Life to send to their legal counsel. The ideas posited in the brief were largely disregarded. This is unfortunate because the Fifth Circuit’s reasoning was almost verbatim to the brief portion submitted.

When crafting legislation likely to undergo judicial challenge (let’s assume a Constitutional issue) it’s important to craft the legislation to withstand the challenge even if the desired goal isn’t as robust as would be desired. To begin with, rather than look at what do we want to do (end abortion) look for what can we do (protect the health and safety of women.)

Standard of Review

The courts look at Constitutional challenges through two standards of review, rational relationship and strict scrutiny (yes, there’s a narrow sliver that gets “enhanced rational relationship” or “intermediate scrutiny” but it’s beyond the scope of this post.) Rational relationship means is the law rationally related to the purpose for which it is intended. This is a low standard of review where, “the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. Williamson v. Lee Optical, Inc. 348 U.S. 483 (1955) Bills reviewed under a rational relationship standard usually are found to pass Constitutional muster.

Strict scrutiny is a usually fatal. To survive strict scrutiny the legislative body must

1) have passed the law to further a compelling government interest
2) narrowly tailored the law to achieve the interest

(Note that the Religious Freedom Restoration Act is even more restrictive the second prong required the legislation is the least restrictive means of furthering the compelling interest.)

The legislation must survive both prongs of the test, and both prongs have to be considered in the entire legislative process since committee testimony and legislator statements can be used as evidence to establish the intent of the legislation and the intent of the legislation effectively determines what standard of review is used.

Almost all legislation that is controversial will have a severability clause so that if one portion of the law is found to be unconstitutional the rest of the law can stand. So with HB2 as the example the courts look at the three separate changes: moving the enhanced restrictions on abortions to 20 weeks when babies can feel pain rather than the 26 week third trimester mark, requiring physicians to have hospital privileges, and requiring abortion centers to be ambulatory surgical centers.

Crafting legislation such as this with different purposes and potentially different standards of review is risky as it could be separated into two (or three) different bills and have two different committee hearings and votes. In such a case the separate bills can be challenged, but the Courts will have to decide what standard of review to use for each separate bill even if they are all combined into one lawsuit. The take away is the exact same verbiage combined in one bill or broken into two bills can have radically different legal review since the purpose is distinguishable. The same language, the same effect, but it’s allowable under rational relationship and not allowable under strict scrutiny.

When deciding what standard of review the courts have two primary considerations. They look at what is the purpose of the legislation, and they weed out any “heckler’s veto.” It doesn’t matter how loud the opposition cries, and it doesn’t matter how often they repeat statements regarding the intention of the legislation. If the legislative intent is clearly stated and the hearings/testimony is in support of the intent the opposition’s assessment is not considered and the legislative intent, as set forth in the legislation, is used to determine the standard of review.

On the other hand, if the opposition’s statements are supported by the committee hearing questioning/testimony, individual legislator’s statements that write, sponsor, advocate for, etc. the legislation then the courts have to give consideration as to is the intent of the legislation actually different than what is stated in the plain language of the legislation. Even though the legislation states all the right things, if the actual intent of the legislation can be proven different than the plain language a different standard can be used.

Even though the HB2 makes statements about protecting the health and safety of women (a rational relationship standard) if the legislation’s intent is determined by evidentiary means to be to burden abortion (strict scrutiny) the entire legislation can be reviewed under strict scrutiny analysis. Despite a severability clause a want of development in committee testimony coupled with the statements of individual legislators can leave the clause functionally useless as each separate action is considered under strict scrutiny.

Defending the Legislation

The way the legislation is constructed should be done in a manner that allows the legislation to be defended on constitutional grounds even if some specific instances of enforcement are deemed unconstitutional as applied. Establishing a valid constitutional piece of legislation, especially if the matter has a chance to go before the Supreme Court, is useful to set precedent even if application is going to be difficult. With HB2, the underlying law is that:

1) restrictions on abortion cannot create an undue burden
2) distance to abortion providers does not create an undue burden.

The first factor is the constitutional principle that is involved. Should the legislation not survive a challenge on the constitutional challenge the second factor is not reached. The second factor is not the constitutional principle, but rather is law that impacts the application of the legislation to the constitutional principle.

Possible Outcomes

Well constructed and defended legislation will be both reviewed for what standard of review and application. This leaves three possible outcomes. The legislation can be deemed constitutional, unconstitutional, or constitutionally sound but unconstitutional as applied. Either constitutional outcome has great value. The legislation either survives in whole if found to be constitutional, or may be hamstrung but still serves to establish the overall legal framework for analysis if unconstitutional as applied. This then sets the lines for debate in other legislative bodies (the Oklahoma legislature as an example) and the legislation more artfully crafted to adhere to the constitutional principle and lie within the acceptable application as set forth in the court case.

Summary

This is a long and somewhat meaty entry, so here’s the main points to remember:
1) Individual legislator knowledge on how to craft legislation is an important tie breaking factor to consider when voting.
2) Crafting legislation is a process. Even if all the “right” words are in the final passed legislation the process is scrutinized to determine what standard of review is used to review the legislation.
3) Two standards of review are used. Rational relationship usually means the legislation survives, strict scrutiny usually means the legislation fails.
4) A severability clause is functionally useless if the same standard of review is used for all parts of the legislation.
5) The very same language can be analyzed differently if cobbled together in one bill or separated out into two. Same language, same effect, but different standard of review so different outcome.
6) The legislation needs to be crafted with defense in mind. Even if the final outcome is unconstitutional as applied the legislation serves to establish the legal framework for future pieces of legislation and a more impactful resolution can occur when future legislation is drafted.

A glimpse of Texas' future -young Republicans vs young Democrats

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If nothing else, the recent “battle” over some very commonsense regulations on abortion has provided us with a clear contrast between Republicans and Democrats. Republicans were respectful, polite, and prayerful in their efforts to improve the safety of women seeking abortions and to reduce late term abortions in line with advances in medical technology. Democrats were rude, disrupted, and showed no concern for women as they sought to block these commonsense regulations.See this and this if you don’t believe me.

This also played out among the younger people in our state, which might give us some hope for stopping the “demographic wave” that so many professionals insist will be the end of the Republican Party in Texas. Two blog posts perfectly illustrate the difference between young Republicans and young Democrats. One is titled Bro-Choice: How #HB2 Hurts Texas Men Who Like Women and was posted by Ben Sherman on the Austin based Burnt Orange Report. Sherman is listed as an undergraduate at the University of Texas. The second blog post was published here on BJP and is titled Texas College Republicans on abortion debate – let’s make it safer for women and was written by Kristopher M. Infante, who is a senior at Texas State University-San Marcos.

In his post, Mr. Infante does the unthinkable: he writes about what the bill actually does!

  • It takes away a woman’s right to choose! The bill prevents abortions after five months (20 weeks). There is no doubt in my mind that a woman that electing to have an abortion is facing a tough decision, but five months is enough time to make a choice.
  • What if the mother’s life is in danger? The five- month ban does not apply in cases where the mother’s life is in danger.
  • Well, it is going to shut down clinics!  The bill raises the standard of care for women by ensuring that abortion facilities have the same regulatory standards as ambulatory surgical centers (ASCs).
  • What is an ASC? I’m glad you asked; no one else has. ACS’s, otherwise known as outpatient surgery centers, must meet certain regulatory standards to provide some very common procedures, including  colonoscopies, carpal tunnel surgeries, and ear tubes for children. To break it down, the bill ensures that medical staff use appropriate and sanitary procedures.
  • What if current abortion providers do not meet the proposed new requirements? Like any other service provider that does not meet regulatory standards, they will have to upgrade their facilities
  • What if current abortion providers do not upgrade their facilities? They can continue to remain open and provide women’s health services such as contraceptives, annual visits and preventative services but cease to perform abortions.
  • The Gosnell case is rare, abortions are safe! Plane crashes are rare, as well. Planes are safe. However there is a chance that something can go wrong. What about this hospital, doctor, admitting privilege stuff?  Requiring doctors to have hospital admitting privileges is simply improving the standard of care. Hospitals provide admitting privileges based on their own assessment of quality of care. If a doctor does not have admitting privileges to a hospital, it is a troubling sign. Run.

A straightforward analysis of each objection, using the actual bill as a reference point. Contrast this information with that of Mr. Sherman.

For those of us guys who like girls — you know, like them like them — and want to have relationships with them that may last anywhere from a few minutes to many years, we need to think about how this bill, by curtailing the bodily autonomy and sexual freedom of women, hurts us, too. We need to stand with women in their fight to control their own bodies.

How #HB2 Hurts Straight Texas Men

  • Your girlfriend’s/wife’s life will be in danger. Making abortion inaccessible for millions of Texas women is going to put them in danger if they ever need to terminate a pregnancy. Black markets for unsafe abortions will emerge, and women will be pushed into potentially fatal back-alley abortions. That’s your girlfriend’s life we’re talking about.
  • Your freedom to choose is at stake, too. While it is ultimately a woman’s choice whether to have an abortion, many women choose to make that decision with the man involved. Do you want that decision ready-made for you by politicians in state government? Not if you value freedom, you don’t.
  • You want to decide when and if to have kids. This bill will force thousands of Texas men into unplanned fatherhood by making it impossible for women to access an abortion in the event of an unplanned pregnancy. Even if you want to have kids, you probably don’t want an accident to make you a father before you’re psychologically ready and able to care for a child. If you don’t want kids, you don’t want the narrow, personal views of politicians in the state government to force you to have them.
  • Your sex life is at stake. Can you think of anything that kills the vibe faster than a woman fearing a back-alley abortion? Making abortion essentially inaccessible in Texas will add an anxiety to sex that will drastically undercut its joys. And don’t be surprised if casual sex outside of relationships becomes far more difficult to come by.

It’s clear: if the Legislature basically takes away a Texas woman’s right to choose, having sex becomes a much, much riskier proposition for women and men.

See the difference? Of course you do. Mr. Sherman ignores the actual bill and uses false claims to try and elicit emotional responses. The very nature of the bill makes abortions safer for women, it certainly doesn’t endanger them. It doesn’t restrict anyone’s freedom to choose before 20 weeks – isn’t five months enough time to make a joint decision? The bill does nothing to hamper your ability to choose when and if to have kids because abortion remains legal and does not in any way restrict access to abortions before 20 weeks of gestation. As for his last objective, well, I’ll just take a comment on his post at Burnt Orange:

Yes, Ben. Nothing could be worse than having the mood spoiled by some pesky nagging worries that you might actually produce a baby with your fornication. How terrible it would be for you – and for your piece of tail – if you couldn’t just flush it and be done. Let’s all support causes that ensure that we never have to be worried about experiencing the consequences of our actions. Because, like, what a downer that would be.

When Holly Hansen, who blogs at Williamson County Conservative, noted how chauvinistic this kid is in her post titled Male Chauvinist Worries that Abortion Bill will Hamper His Casual Sex Life, he threw a temper tantrum titled 2013 or 1950? Conservatives Rail Against Having Sex Outside of Marriage.

Now let me ask the obvious question: which one of these two young men care about women? The one who wants to protect them with reasonable, commonsense regulation of the abortion industry? Or the one that is upset that his “vibe” might be lost if he ever finds a woman that will get in the sack with him?

Again, we’ll use a comment from Burnt Orange:

What a great example of the exploitation of women by “pro-choice” men. Abortion is used to treat women as objects that can be used over and over (or just once, whatever they prefer). Upset at the prospect of getting less tail?  Maybe it’s time to put on your big boy pants and be responsible for your actions.

Ladies, you are worth so much more than this.

I’m happy that even the people that read the “progressive” blog centered in Austin realize that actions have consequences. It gives me a glimmer of hope that the big demographic wave isn’t going to happen exactly the way the professionals think it will because of principled young men like Kristopher M. Infante and groups like the Texas College Republicans. People fundamentally understand that the conservative agenda is the one that truly allows freedom and liberty for all, including women, and protects them from the misogynists on the progressive left .

burnt-orange-vs-college-republicans

Texas College Republicans on abortion debate – let's make it safer for women

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Abortion. Possibly the most controversial issue of our time. An issue we are told to avoid. Why? You can argue your point until you are blue in the face but the result is always just that, blue faces. You either believe it is a life or not. Unless you can convince your opposition that what you believe is correct, you are wasting your breath.

If your news comes from browsing through news articles and headlines, 10 second soundbites, social media, or catching a few minutes of the nightly news, you heard the following story:  “the Texas GOP has launched a war on women, the Abortion Bill was anti-choice, and thousands of activists were expelled from the capitol for exercising their First Amendment rights.”

Let us address these compelling arguments against the bill that we have heard from  “pro-choice” activists sporting orange-shirts.

It takes away a woman’s right to choose! The bill prevents abortions after five months (20 weeks). There is no doubt in my mind that a woman that electing to have an abortion is facing a tough decision, but five months is enough time to make a choice.

What if the mother’s life is in danger? The five- month ban does not apply in cases where the mother’s life is in danger.

Well, it is going to shut down clinics!  The bill raises the standard of care for women by ensuring that abortion facilities have the same regulatory standards as ambulatory surgical centers (ASCs).

What is an ASC? I’m glad you asked; no one else has. ACS’s, otherwise known as outpatient surgery centers, must meet certain regulatory standards to provide some very common procedures, including  colonoscopies, carpal tunnel surgeries, and ear tubes for children. To break it down, the bill ensures that medical staff use appropriate and sanitary procedures.

What if current abortion providers do not meet the proposed new requirements? Like any other service provider that does not meet regulatory standards, they will have to upgrade their facilities

What if current abortion providers do not upgrade their facilities? They can continue to remain open and provide women’s health services such as contraceptives, annual visits and preventative services but cease to perform abortions.

The Gosnell case is rare, abortions are safe! Plane crashes are rare, as well. Planes are safe. However there is a chance that something can go wrong.

What about this hospital, doctor, admitting privilege stuff?  Requiring doctors to have hospital admitting privileges is simply improving the standard of care. Hospitals provide admitting privileges based on their own assessment of quality of care. If a doctor does not have admitting privileges to a hospital, it is a troubling sign. Run.

So why are protesters still screaming and chanting? We failed on delivering the message. We have read the reports on the 2012 Romney-Ryan fail, did our homework and crossed out hearts that we wouldn’t make the same mistake. Here we are at the first test to flaunt our new and improved selves and flop. Yes, we stand for life, but how does that communicate any part of the bills? It doesn’t.

The Republican Party of Texas and Texas Federation of College Republicans chose a different route. We have 140 characters to share our message and make our case. The Texas Federation of College Republicans led the charge with the #SaferForWomen message. The majority of their friends, the people we need in order to grow our party, are the ones that get their news in 140 characters or less, by watching short clips and summarized stories on Facebook and Twitter. Their friends are the ones that picked up the war on women bit. Preaching to the choir, otherwise known as primary voters, is not going to grow the Party. Effective messaging is the only way Texas can stay red. Screaming prolife and prochoice at each other is only going to result in a lot of blue faces. We invite you to follow this debate by following our hash tag #SaferForWomen.

By Kristopher Infante
State Chairman, Texas Federation of College Republicans

 

More information:

House Bill HB2

House Committee Report on HB2

House Research Organization Analysis of HB2