New Fifth Circuit Judicial Nomination Is Cause For Serious Concern.

By Megan Snider

Trump nominee for the 5th Circuit is Kyle Duncan, who is best known for representing Hobby Lobby in the Supreme Court case that ruled that corporations with religious owners cannot be required to pay for insurance coverage of contraception, which Hobby Lobby’s owners believe to be a form of abortion.

Duncan’s proponents cite his constitutional law experience but are already going on the defensive, differentiating the beliefs of the attorney from those of the clients he represents.  Nonetheless, his litigation history demonstrates otherwise. While Duncan defended Hobby Lobby’s corporate conscience, he has also consistently defended state actors’ intrusion into individual’s rights.  

Duncan is defending a Virginia school board after it banned a transgender teen from using the boys' bathroom.  On behalf of the teen, the ACLU argued that the policy violates equal protection and Title IX.

Prior to the Obergefell v. Hodges decision, Duncan defended former Louisiana Attorney General Buddy Caldwell in a suit that sought to strike down Louisiana laws prohibiting same-sex marriage.

In Connick v. Thompson, the Supreme Court reversed a §1983 judgment against Duncan’s client, the Orleans Parish District Attorney's Officer, determining that one prosecutor’s misconduct, failure to turn over evidence to the defense, did not render the prosecutor’s office liable.

Duncan also defends the State of Louisiana against lawsuits challenging the constitutionality of several anti-choice laws like the 72 hour waiting period between the first appointment and the procedure, the requirement for a woman to undergo an ultrasound before getting an abortion, and a ban on a common abortion procedure. Duncan, along with then-State Representative Mike Johnson, also defended the State’s requirement for abortion clinic doctors to have admitting privileges to nearby hospitals.  

The 5th Circuit is already a harbor for TRAP and anti-choice legislation.  It upheld the laws challenged in Whole Women’s Health before the case went to the Supreme Court.  Then, before the Supreme Court issued its decision, the 5th Circuit lifted a lower court ruling so Louisiana could continue to enforce identical admitting privileges requirement, citing to “irreparable harm” suffered by the state because of inability to enforce its laws – never mind the irreparable harm to those seeking access to abortions.

Rather than create a balance, Trump’s appointment of Duncan will further entrench such brash disregard for personal autonomy within the 5th Circuit.  Duncan’s appointment should be opposed by those who would defend choice, equal protection, anti-discrimination, prosecutorial misconduct, and more.  Without a balanced Court, the citizens of Texas, Louisiana, and Mississippi must abide and hope that other circuits render more favorable decisions that the Supreme Court upholds.   

Megan Snider is an attorney in private practice. She represents minors seeking abortions with the Louisiana Judicial Bypass Project and is co-counsel for a lawsuit, supported by Lift Louisiana, against Louisiana's abortion clinic licensing regulations.

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