If He Were Still Alive, Justice Scalia Might Have Rewarded Judge Who Struck Texas' Abortion Law

The Supreme Court 's most consequential abortion rights ruling in a generation  has vindicated a lower court judge who operates in relative obscurity in Austin, Texas.

U.S. District Judge Lee Yeakel, an appointee of George W. Bush, was not mentioned by name in the court's landmark decision in Whole Woman's Health v. Hellerstedt, but he laid the groundwork for the high court to ultimately rule that the Texas law was unconstitutional.

And if Justice Antonin Scalia were still alive, tradition might have compelled him to give Yeakel a special gift for ruling the way he did, even if the late justice didn't personally agree with the outcome.

The Texas law -- which required abortion doctors to have admitting privileges at nearby hospitals and imposed onerous structural requirements on clinics -- "creates a brutally effective system  of abortion regulation that reduces access to abortion clinics," Yeakel wrote in 2014, "thereby creating a statewide burden for substantial numbers of Texas women." 

The Supreme Court, in a 5-3 opinion by Justice Stephen Breyer, gave great weight to this and other findings by Yeakel -- methodically concluding that the law "provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an undue burden on their constitutional right to do so."

This was a huge vindication for Yeakel, who last year hadn't been so lucky when the conservative U.S. Court of Appeals for the 5th Circuit largely reversed  his earlier decision, which had blocked the contested provisions from going into effect and saved a handful of clinics from having to close their doors. 

In so many words, the appeals court said that Yeakel got it wrong -- that he "erred" in some of his legal conclusions and application of settled law. That meant, in the court's view, that the Texas law could be implemented because it couldn't be shown that it imposed "an undue burden on a large fraction of women for whom it is relevant." 

But that opinion is no more. The Supreme Court earlier this week reversed it.

Which brings us back to Scalia and Yeakel. As the justice assigned to oversee the workings of the 5th Circuit  -- the judicial region that also includes Louisiana and Mississippi -- Scalia had a tradition for district judges there. It went something like this : If you rule a certain way but then the appeals court reverses you, and later the Supreme Court vindicates your work, you get an award from me at our annual judges' conference.

The gift very much reflected Justice Scalia:

That would be U.S. District Judge Frank Montalvo, another Bush appointee who sits in the same district as Yeakel. A few years ago he had the good fortune of having the Supreme Court reinstate a decision that the 5th Circuit had shot down.

Like Montalvo and another lucky judge a year later , that kind of vindication might have earned Yeakel a duck call whistle from Scalia, an avid hunter who knew a thing or two about duck hunting. He once even wrote a controversial opinion about it .

Through a court assistant, Yeakel declined to comment for this article. But it is interesting to imagine him possibly receiving this special memento from Scalia -- who during his nearly 30 years on the bench had staunchly opposed abortion and the jurisprudence the Supreme Court had built to protect it.

"Does the deck seem stacked? You bet," Scalia complained in a dissent in an abortion-related case . "The decision in the present case is not an isolated distortion of our traditional constitutional principles, but is merely the latest of many aggressively pro-abortion novelties announced by the court in recent years."

Scalia's absence likely didn't make a difference in the outcome of the Whole Woman's Health decision -- the ruling was 5-3 after all -- but his voice might have resonated had he been around to cast a vote in the case.

This post has been updated to note that Yeakel declined to comment for this article.