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Legal

Thoughts on the Bizarre “Easter Worshippers” Episode

By | LBB, Legal, News and Events, Religious Liberty | No Comments

The Easter Sunday bombings in Sri Lanka targeted Christians. Among the sites targeted were St. Anthony’s Shrine in Kochchikade, St. Sebastian’s Church in Negombo, and Zion Church in the city of Batticaloa. More than 300 died and hundreds more were injured. Naturally, the entire world condemned the terrorists who engaged in these suicide bombings, and millions sent words of encouragement to those affected.

One rather bizarre group of iterations on Twitter cause many to wonder if a coordinated effort to minimize the victim’s religious affiliation was underway. A group of prominent Democrat leaders decided to use the Euphemism “Easter Worshipers” to refer to the Christian victims.

 

I confess it is hard to conclude there was no coordination, though the motives are not entirely clear.

Former President Barack Obama tweeted: “The attacks on tourists and Easter worshippers in Sri Lanka are an attack on humanity. On a day devoted to love, redemption, and renewal, we pray for the victims and stand with the people of Sri Lanka.”

Why not say Christians? Why the hesitation? “Easter worshippers” is not a commonly used term so it seemed strange.

But then Former Secretary of State Hillary Clinton tweeted using the term (spelled the same way) to send her condolences: “On this holy weekend for many faiths, we must stand united against hatred and violence. I’m praying for everyone affected by today’s horrific attacks on Easter worshippers and travelers in Sri Lanka.” Others followed suit.

Many took offense. Christians worship Christ, not Easter, they were quick to point out. I am not unsympathetic. Words matter. Jesus was called “The Word” (John 1:1). Of course, the Bible is known as “The Word of God” (Hebrews 4:12). And the schemes of Satan have always involved semantic deception— “Did God really say, ‘You must not eat from any tree in the garden’?” (Genesis 3:1).

At a time when Christians are being persecuted all around the world in historic numbers, we need leaders (especially Christian leaders!) to be clear in their support for their brothers and sisters around the world. They are being targeted because of their faith and so their faith should not be minimized in any way.

According to Open Doors, every month, on average: “345 Christians are killed for faith-related reasons, 105 Churches and Christian buildings are burned or attacked, and 219 Christians are detained without trial, arrested, sentenced, and imprisoned.”

At one level, if this was an attempt to obfuscate the issue on the part of this group of Democrats, the attempt should be rightfully condemned.  But at another level, from the beginning in the first century A.D. those who followed Jesus have been described in many ways, almost always in an attempt to disparage our faith. In fact, the very term Christian was given to the disciples at Antioch (Acts 11:26) in a seemingly condescending way. Before that, they were known as people of ‘the way” (Acts 9:2; 11:26) or of “the book,” as identified in the Quran (5:77-80). These weird “Easter worshippers.”

I have a sense of pride then in standing with the brothers and sisters in Christ, whatever the world may want to call us. Even when done maliciously, to undermine us, “Blessed are [we] when people insult [us], persecute [us], and falsely say all kinds of evil against [us] because of [Jesus]” (Matthew 5:11).

So, I am a Christian. Count me in among those “of the book” or “of the way,” the “Easter worshippers,” speaking about the “unknown god” (Acts 17:23) and the crucified Christ, risen back to life (yes, in His physical body!) and sitting at the right hand of the Father (Acts 2:32-33). He is the hope of the world, and I will gladly suffer this and more to share that hope with you.


Mario Diaz, Esq. is CWA’s general counsel. Follow him on Twitter @mariodiazesq.

Senate Rule Change on Nominations Unfortunately Necessary

By | LBB, News and Events | No Comments

The U.S. Senate has now officially moved to limit the amount of post-cloture debate time for sub-Cabinet executive nominees and judicial nominees other than the circuit and Supreme Court level. Debate time will be limited to two hours as opposed to the usual thirty. The move was (unfortunately) desperately needed after the unprecedented and unnecessary obstruction campaign that Democrats have launched against President Trump’s nominees.

There are a total of 152 vacancies in the federal judiciary (88 considered a judicial emergency) and 68 nominees pending in the Senate. Forty-seven of those are simply awaiting floor votes. Forty-one of those have waited more than a year. Four of those have waited more than 500 days.

It is not that senators have raised specific, substantive objections to these nominees. The Democrats have simply taken the position of treating virtually every nominee as hostile merely to slow down the process as much as possible, even though they might even vote to confirm them in the end.

Under normal circumstances, unobjectionable nominees would be passed by a voice vote, requiring no time to end the debate.  But President Trump has faced 57 votes to end debate on judicial nominees during his first two years in office, far more than under previous presidents. President Barack Obama had only faced two at the same point in his presidency. President George W. Bush had seven at that point, President Clinton merely one.

It is not only judicial nominations, either.  John Ryder was confirmed earlier this year to the Board of Directors of the Tennessee Valley Authority (TVA). He lingered for more than a year, awaiting a floor vote for some nine months, only to be confirmed with a simple voice vote. There is nothing fair about such a process. One of the things liberals forget in their petty fights against President Trump is the fact that they are harming the lives of these nominees who have families and are being put through this unfair process for no reason of their own making. Emotional sentiments against the president should not be allowed to control the nominations process.

This rule change then essentially restores a fairer procedure where nominations who are not objectionable are able to be confirmed at a sensible pace. There is nothing radical or extreme about that. There is no court-packing scheme in play here, despite what you might hear in the mainstream media.

Senate Majority Leader Mitch McConnell (R-Kentucky) is actually following a precedent already established by former Democrat Majority Leader Harry Reid (D-Nevada).  Following the Reid model, Leader McConnell made a point of order to establish the new rule, which was ultimately upheld by a simple majority vote (51-48). This procedure establishes a new precedent while avoiding a formal rule change which would require a supermajority to end a filibuster.

The rule change will speed up the confirmation of lower-court nominees considerably. To further illustrate the point, the Senate has just confirmed three district-court judges to this point in 2019. That is simply unacceptable. It was time for this change. It is time for the Senate to get to work.

“Until Justice Rolls Down Like Dollars”— the SPLC Exposed

By | Legal, News and Events, Religious Liberty | No Comments

The Southern Poverty Law Center (SPLC) has once again been exposed for what it is, “a high profitable scam,” according to one former employee who wrote for the New Yorker in a recent, explosive op-ed. Recall that the SPLC is a hateful racket that smears Christian conservatives as racists. Remember when they smeared Dr. Ben Carson for having a Biblical, historical view of marriage?

The SPLC was key in that horrible shooting attack at the Family Research Council that injured their building’s security guard, Leo Johnson. After the incident, the FBI released a video of the terrorist’s interrogation where he confessed to using the center’s “Extremist” list map to find out where the councils’ offices were located.

Still, the SPLC’s smear campaigns were highly profitable for the group, so it continued to expand its list of “hate groups” with Christian organizations. For years, we have struggled to tell the world about this fraud of a group, making some strides. At one point, they were used as an official resource by the Department of Justice (DOJ), and they were removed from that position, thanks to the light that was shone on them. But many in the media showed little interest, since they were useful politically. These recent revelations might change all that.

“The Law Center had a way of turning idealists into cynics,” wrote Bob Moser, the former SPLC writer.  He joined the SPLC thinking it was a justice-seeking small organization and discovered it was all a façade. He recounts one employee referring to their offices as “the Poverty Palace.” Allegations of racial discrimination came from within while they accused everyone else of discriminating.  Sexual harassment allegations also loomed which eventually led to the firing of Morris Dees, one of SPLC’s co-founders.

Of Dees, he recalls one exposé that showed him to be one “who viewed civil-rights work mainly as a marketing tool for bilking gullible Northern liberals. … Co-workers stealthily passed along these articles to me,” he says.

When the news of Dees broke, he notes another former SPLC employee said, “It could be racial, sexual, financial — that place was a virtual buffet of injustices.”

But that’s on the inside. On the outside, they’re bringing in the money by accusing others, most prominently President Trump, of the things they are practicing. He writes, “Donald Trump’s presidency opened up a gusher of donations; after raising fifty million dollars in 2016, the center took in a hundred and thirty-two million dollars in 2017 …”

He concludes, “We were part of the con, and we knew it.” Tagline: “The S.P.L.C. — making hate pay …”

But friends, the reality is that, even after all of this (after all those facts) the SPLC continues its hateful work today as it did yesterday, aided by its multi-million-dollar endowment. Next week, hundreds of journalists will refer to Christian organizations smeared by the SPLC as “hate groups.” George Clooney, who donated a million dollars to them recently, and Apple, who chipped in another, and hundreds of other liberals seeking to advance their radical causes will continue to support them and ignore their putrid foundation, because they help them smear their opponents.

This is why we must be diligent to expose them at every turn. When you see a journalist quoting their stats or their “hate group” classification, write to them and let them know that they are discrediting themselves by using the SPLC.

If you see it on television or radio, call the station. It must become common knowledge that the SPLC is a racket and a hate group itself. But that can only happen through you and me. The media must be made to care; it won’t volunteer. Let us speak in unison, and we may yet see justice roll down like waters, as Martin Luther King, Jr., dreamed.

Your Voice Made a Difference— Neomi Rao to the D.C. Circuit

By | LBB, Legal, News and Events | No Comments

Neomi Rao, President Trump’s nominee to be a judge on the D.C. Circuit Court of Appeals, often recognized as the second-highest court in the land, was confirmed by the U.S. Senate last week by a vote of 53-46. No Republican senator opposed Rao.

This is a major victory and a testament to your voice and influence on Capitol Hill. Rao came under attack in the waning days of her nomination. But thanks to your voice, we have a conservative woman with excellent credentials and a trustworthy judicial philosophy at the D.C. Circuit. CWA leaders from across the country, and especially in key states, were quickly mobilized to express our support for Rao and to help explain her record and address any concerns Senators might have. Because of your efforts, she is now a federal appellate court judge.

Rao will fill the seat left vacant by Justice Brett Kavanaugh at the D.C. Circuit where she will handle numerous cases involving federal agencies, which is her area of expertise— administrative law. She comes to the bench after serving in the Office of Information and Regulatory Affairs where she worked on deregulation efforts that have untangled businesses to invest in our economy and give rise to the current favorable economic numbers we are witnessing. As an associate professor of law at George Mason University’s Antonin Scalia Law School, Rao also founded the school’s Center for the Study of the Administrative State.

These experiences, along with her solid judicial philosophy, will make her a major stabilizing influence at this important federal appellate court. During her hearing, Rao stated consistently that judges do not create law, but rather interpret and apply the Constitution, law, and precedents as they exist. She has publicly criticized activist judges who try to go “beyond the law to reach a particular result” they desire, rather than ruling as the law demands.

She is the type of judge we are in desperate need of, and we are glad to have played a role in her confirmation.


Mario Diaz, Esq. is CWA’s general counsel. Follow him on Twitter @mariodiazesq.

 

For America (Day 102)

By | LBB, News and Events, Prayer | No Comments

O let us taste and see that You are good, Lord;
Help us to trust in You and the promises
You have given to us through Your Word.
Blessed is He who puts his hopes in them.

Help us to know You and understand You, increasingly so;
Help us to fear You in Your holy love.
Teach us to love as You do
Keep us from becoming “noisy gongs” or “clanging cymbals.”

May all our works be covered in love and humility;
Directed by discernment and a desire to serve those in need.
You have prospered us, and we are grateful
For all we have, big and small.

We confess our sins before You,
Our joyless bouts and unforgiving hearts.
We are in desperate need
Of Your mind and heart-altering touch.

Help us to wield the sword of truth in love.
Help us to expose the darkness and bring joy.
In You there is life and peace and hope.
Help us to live and move in You.

Merciful Father, be near us;
Bring us ever closer to Your holy presence
And remind us of who we are in You –
Who we are becoming through Your sanctification.

Give us food for the hungry,
A calming word for those in distress,
A loving hand for those who are hurt,
And hearts who empathize with all.

Give us boldness to speak against
Injustice and unrighteousness and evil.
Give us hearts inclined to prayer
That in our weakness, we may stand strong.

In Jesus’ Name,
Amen.

 


Click here for more prayers from our For America Prayer Journal.

Mario Diaz, Esq. is CWA’s general counsel. Follow him on Twitter @mariodiazesq.

Sixth Circuit Greenlights Ohio Law Prohibiting Public Funding of Abortion Clinics

By | Case Vault, Legal, Planned Parenthood, Sanctity of Life | No Comments

Planned Parenthood of Greater Ohio v. Hodges

The Sixth Circuit Court of Appeals reversed a decision from the Southern District of Ohio at Cincinnati invalidating an Ohio law barring the public funding of abortion clinics. This is good news. The law has now been upheld and can go into full effect.

The court said the state’s condition for receiving public health funds “does not violate the Constitution because the [clinics] do not have a due process right to perform abortions.” I know that seems obvious, but this is exactly what Planned Parenthood has tried to argue for many years. They claim not only that women have a constitutional right to abortion but also that they, as the providers of this “holy” right, have a constitutional right to provide abortions. The court appropriately and emphatically rejected that claim. The court’s sound reasoning now opens the door for the will of the majority of Ohioans to be carried out. The citizens of Ohio, along with the majority of the rest of the country, do not want their tax dollars to subsidize abortion providers.

In 2016 Ohio passed a law prohibiting funds from being used to “(1) Perform nontherapeutic abortions; (2) Promote nontherapeutic abortions; (3) Contract with any entity that performs or promotes nontherapeutic abortions; (4) Become or continue to be an affiliate of any entity that performs or promotes nontherapeutic abortions.”

Ohio made clear the purpose of the law is, (1) to “Promote childbirth over abortion” which the Supreme Court has already said is constitutionally permissible (“[A] State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest.” Planned Parenthood v. Casey, 505 U.S. 833, 886 (1992)), (2) “to avoid ‘muddl[ing]’ that message by using abortion providers as the face of the state healthcare programs” (there are thousands of quality health care options for women besides Planned Parenthood – in Ohio, one study found 280 federally qualified health clinics and rural health clinics, compared to just 28 Planned Parenthood Abortion Clinics), and (3) “to avoid entangling program funding and abortion funding” (public funding inevitably helps Planned Parenthood be the number one abortion provider in the country, performing more than 300,000 abortions a year – more than 27,000 a month, more than 900 a day).

Planned Parenthood, having become synonymous with abortion, promptly sued Ohio, “claiming that the law violates the First and Fourteenth Amendments by conditioning government funding on giving up their rights to provide abortions and to advocate for them.” The district court and a panel of the Sixth Circuit agreed and permanently enjoined the State from enforcing the law.

Thankfully, the Sixth Circuit en banc (before the full court) now reverses those misguided opinions and correctly applies the law, including applicable precedent, to this case. Judge Jeffrey Sutton, writing for the court, reminds us that, “The United States Constitution does not contain an Unconstitutional Conditions Clause.” Writing clearly and concisely, he says, “Governments generally may do what they wish with public funds,” citing Rust v. Sullivan, 500 U.S. 173, 192–94 (1991). He continues, “What makes a condition unconstitutional turns not on a freestanding prohibition against restricting public funds but on a pre-existing obligation not to violate constitutional rights.” In other words, the government cannot deny a clinic’s funding on a reason that violates the clinic’s constitutional rights.

But the constitutional right at issue here “prohibits a State from imposing an ‘undue burden’ on a woman’s access to an abortion before fetal viability. Casey, 505 U.S. at 877 (plurality).” It has nothing to do with a clinic’s right to perform abortions. “The Supreme Court has never identified a freestanding right to perform abortions.”

Therefore, since there is no constitutional right, there can be no constitutional violation of that right. It is that simple.

A woman may bring a claim, as the dissent envisions, saying this law places an undue burden on her constitutional right to obtain an abortion, but this is hard to imagine, given the facts of this case where the clinics have all publicly expressed their commitment to abortion with or without this law. Ruling for Planned Parenthood in this case, “would create a constitutional right for providers to offer abortion services and, in doing so, move the law perilously close to requiring States to subsidize abortions. Case law rejects both possibilities.”

Bottom line, “so long as the subsidy program does not otherwise violate a constitutional right of the regulated entity, the State may choose to subsidize what it wishes — whether abortion services or adoption services, whether stores that sell guns or stores that don’t.”

Mario Diaz, Esq. is CWA’s general counsel. Follow him on Twitter @mariodiazesq.

Time for the FCC to Take Parent’s Concerns Seriously

By | LBB, News and Events, Sanctity of Life, Sexual Exploitation | No Comments

In a recent Public Notice, the Federal Communications Commission’s (FCC) Media Bureau sought comments on “the accuracy of the television content rating system, known as the TV Parental Guidelines, and the ability of the governing body for TV ratings, the TV Parental Guidelines Oversight Monitoring Board, to oversee the rating system and address public concerns.”

We thank those of you who took the time to write comments in response to our post. It is important for the commission to hear from you personally.

Your voice will also be heard as a supporter of Concerned Women for America (CWA). We submitted an official comment on your behalf, asking the FCC to “put American families

first.” In it, we argue the current rating system benefits the big entertainment conglomerates to the detriment of families and, especially, children.

An effort that was presented as aiming to benefit the public has in fact developed, unsurprisingly, into a system benefiting those who control it, the entertainment industry. Television is more dangerous for families today than it was before this system was devised.

You ask, “Are programs with violent, sexual, or other content that may be inappropriate for children being rated accurately?” No, they are not. Graphic sexual scenes, adult topics, violence, and profanity are routinely rated as appropriate for children. TV-14 and TV-PG ratings are routinely abused to peddle violent, lewd, and salacious content, to the horror of parents who are helpless once their children are exposed to the material without proper warning. This is, of course, an ideal business model which gives advertisers a much larger audience, but it is most certainly not in the best interest of families.

A major breakdown in the implementation of the rating system is the unaccountability of the industry-proposed and self-governing Oversight Monitoring Board (OMB). Here, too, we raise serious concerns on your behalf.

This is a darkly covered body overwhelmingly composed of industry members who even get to choose the very few advocates for families that are part of it. Transparency, which should be at the core of such a body, is virtually non-existent. There is no record of their meetings, when and how often they meet, what is discussed — everything is secret. How can the public feel any assurance that their complaints are being handled appropriately when the people they are complaining about get to judge themselves in secret with virtually no accountability?

The entertainment industry has been masterful in keeping this body under a deep cloud. Most parents do not have any idea that OMB even exists, let alone who is a member of it. They are completely unaccountable. How can we allow this to continue? CWA supporters can’t believe it when we inform them that not even a representative of the Federal Communications Commission (FCC) is part of this mysterious group. And since no press is allowed in the meetings either, can there be any doubt that the public is systematically and intentionally being kept in the dark on this process?

We conclude by urging the FCC to intervene.

It is time the FCC takes the concerns of parents in this area seriously and exercises the considerable power Congress has granted it to act in the best interest of the public. The entertainment industry has been granted the chance it wanted to do the right thing by families and come up with a process that could empower citizens with the information they need to make the best decisions for their families. But it has taken advantage of the public, betraying our trust, and it is time for the FCC to intervene.

Conservatives Support Rao

By | LBB, Legal, News and Events | No Comments

Neomi Rao, President Donald J. Trump’s nominee to take over the seat left vacant by Justice Brett Kavanaugh at the United States Court of Appeals for the District of Columbia Circuit, has come under unfair attack by the left for some conservative writings in her college days.  But as the Wall Street Journal noted:

The real motive for destroying Ms. Rao is maintaining progressive control of the D.C. Circuit to rubber stamp the left’s agenda on climate change, health care and more. Then Senate Majority Leader Harry Reid packed the court during the Obama years, but Ms. Rao replacing Justice Kavanaugh won’t alter the composition of the court.

Concerned Women for America Legislative Action Committee (CWALAC) sent a letter of support to the Senate Judiciary Committee, saying:

As the largest public policy organization for women in the nation, CWALAC supporters around the country are excited to see a woman of such caliber excelling at the top levels of the legal field. We strongly ask you to rise above the hyper-partisanship of the day and give Prof. Rao the serious consideration she deserves. After examining her record, we are confident that any reasonable observer would conclude she is more than qualified to serve in this position. We ask you to vote for her confirmation.

CWALAC also joined a coalition letter with other conservative organizations representing hundreds of thousands of Americans who are tired of the Senate’s recent mistreatment of nominees. It reads in part:

Prof. Rao’s career should be celebrated and honored, not caricatured and maligned for political purposes. We owe a great debt of gratitude for her contribution to the legal and public policy fields. We hope this committee will treat her with the seriousness and respect she deserves.

Prof. Rao’s hearing was just today and she, once again, showed why she is considered one of the top legal minds in our country. She rose above partisan attacks and showed the judicial restraint that will make her a stellar member of the D.C. Court.

In a statement following the hearings, Penny Nance, CEO & President of Concerned Women for America, said:

Extreme liberals in the U.S. Senate once again tried to bully Professor Rao, despite her sterling credentials to sit on the U.S. Circuit Court of Appeals for the District of Columbia, perhaps the most important court in the country besides the U.S. Supreme Court. Concerned Women for America Legislative Action Committee fully supports Neomi Rao’s nomination and calls on Senate liberals to stop the religious litmus tests, gridlock, and bullying tactics and confirm her; she will make an outstanding addition to the federal bench.

Fifth Circuit: Planned Parenthood Undercover Videos Authentic and Not Deceptively Edited

By | Legal, News and Events, Planned Parenthood, Sanctity of Life, Texas | No Comments

CWA President & CEO Penny Nance talks with CMP Founder David Daleiden at the 2019 March for Life

After being exposed for their unscrupulous attempts to sell baby body parts for profit, Planned Parenthood, the largest abortion provider in the nation, tried to discredit the evidence in a massive PR campaign. They claim the videos which clearly showed they sought to benefit from the sale of aborted baby hearts, brains, lungs, etc. were “deceptively edited.”

This blatant lie was so flagrantly promoted by the liberal mainstream media that many Americans, including some judges, took it as fact.

Thankfully, we still have independent-minded judges who refuse to adjudicate based on popular beliefs, choosing instead to follow the law as written, even in difficult cases. Such was the case with a panel from the Fifth Circuit Court of Appeals who took a look at the evidence in Planned Parenthood of Greater Texas v. Smith.

The panel found a district court who had fully sided with Planned Parenthood’s characterization of the video evidence based on their word alone had abused its discretion. The Fifth Circuit panel composed of Judges Edith Jones, E. Grady Jolly, and Catharina Haynes, said, “The district court stated, inaccurately, that the CMP video had not been authenticated and suggested that it may have been edited” (Emphasis mine). The appellate panel was not just acting on emotion or personal preference by writing this, there was no evidence, aside from Planned Parenthood’s word, to sustain the district court’s characterization of the videos. The court notes:

In fact, the record reflects that [the Texas Health and Human Services Commission Office of Inspector General (OIG)] had submitted a report from a forensic firm concluding that the video was authentic and not deceptively edited. And the plaintiffs did not identify any particular omission or addition in the video footage. (Emphasis mine)

This simple statement of truth has sent shockwaves around the country. And we shouldn’t be surprised. Just as darkness cannot withstand the light, lies crumble at the sight of truth. The court’s acknowledgment is also great vindication for David Daleiden, the founder of The Center for Medical Progress (CMP), who produced the groundbreaking undercover videos exposing the dubious, unethical, immoral, and potentially criminal enterprise.

Daleiden said in a statement: “CMP’s undercover video series caught Planned Parenthood’s top leaders openly admitting to selling baby body parts for profit in violation of federal law. Tonight, the Fifth Circuit Court of Appeals vindicated our citizen journalism work by debunking Planned Parenthood’s smear that the videos were ‘heavily edited’ or ‘doctored.’”

The Texas case dealt with the state’s efforts to terminate its Medicaid provider agreement with Planned Parenthood after their unethical behavior was revealed by the CMP videos. Federal law allows states to terminate a Medical provider agreement when, as in this case, there is evidence of a program violation. The Court explained that, “A ‘program violation’ includes any violation of federal law, state law, or the Texas Medicaid program policies.”

Federal law makes it a crime “to knowingly acquire, receive, or otherwise transfer any human fetal tissue for valuable consideration if the transfer affects interstate commerce” (42 U.S.C. 289g-2). Not only that, it also requires “no alteration of the timing, method, or procedures used to terminate the pregnancy [be] made solely for the purposes of obtaining the tissue” (42 U.S.C. 289g-1(b)(2)). This is exactly what we see in the forensically-authenticated CMP videos.

The court noted several statements where the videos clearly show Planned Parenthood was willing and able to change the abortion procedure to obtain “intact specimens.” Quoting their representative:

Yeah. So she knows what’s involved in modifying what we need to do to get you the specimens that are intact because she’s done it. … And she was doing those here.

Note Planned Parenthood not only admits it is willing to alter its abortion procedures for this purpose in the future, but it alleges they have done it in the past, also. There are numerous statements of this nature. The lower court dismissed all those statements because it wholeheartedly took Planned Parenthood’s word that they didn’t mean any of it. The appellate panel said, “The district court credited [Planned Parenthood’s] self-justifying explanations.”

It would be like a court believing an abuser because he shows up in court and says he didn’t do anything, while dismissing outright all the bruises and testimony from the victim. The district court’s decision was not based on facts but preference. One can see that when the appellate court notes the lower court actually concluded there was no “evidence, or even a scintilla of evidence,” for Texas’ conclusions about Planned Parenthood. Whatever you think of their decision, any reasonable observer can see that the videos are something – gosh, are the millions of people troubled by them just uneducated troglodytes?

It is that type of extreme, unmeasured action by a judge which shows they are not approaching a case and the evidence in good faith. The appellate court, on the other hand, approached the case with the evenhandedness that is at the heart of ensuring a just outcome. It identifies the case as a case of “judicial review of an agency action.” And accordingly, it gives proper deference to the state agency on its determinations. It noted, “despite being litigated with the trappings of the abortion debate, this is fundamentally a statutory construction case, not an abortion case.”

This is the model of judicial restraint that should be paramount in our judicial system. The court gives deference to the state agency in making its determination based on legitimate evidence of misconduct.

Planned Parenthood argued that Texas could not even make a determination on them because “OIG has insufficient expertise to determine the qualifications of abortion providers.” Unbelievably, the lower court had gone along with Planned Parenthood in that argument too.

Fortunately, the appellate panel gave a proper smackdown to that inane notion:

We reject this argument. OIG is the agency that the state of Texas has empowered to investigate and penalize Medicaid program violations. The agency is in the business of saying when providers are qualified and when they are not. That the Chief Medical Officer is a surgeon—and not himself an abortion provider— does not mean that he deserves no deference when deciding whether a provider has failed to meet the medical and ethical standards the state requires. It is even odder to claim that federal judges, who have no experience in the regulations and ethics applicable to Medicaid or medical practice, much less in regard to harvesting fetal organs for research, should claim superior expertise. (Emphasis mine)

The appellate court ultimately vacated the preliminary injunction imposed by the district court. It remanded the case back to limit the review to the agency record, taking a serious look at the evidence in the videos and not merely at Planned Parenthood’s self-serving explanations after the fact. It also asked the lower court to review the case under the proper arbitrary-and-capricious standard. Here’s hoping they follow through on their application of the law this time, regardless of the political pressures that come with any case even remotely associated with Planned Parenthood.

Mario Diaz, Esq. is CWA’s general counsel. Follow him on Twitter @mariodiazesq.