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Judges Have Two Ways to End the Assault on Abortion and Voting Rights. Here's the Right One.

Justin Sullivan/Getty

Across the country, a sustained assault on voting and abortion rights is being justified by phantom problems: voter fraud and unsafe abortions. Few states are leading that assault as aggressively as Texas, and on Tuesday it received a mixed response from the courts. The Fifth Circuit Court of Appeals reinstated Texas’ strict voter ID law for the upcoming election, while in the second, the Supreme Court issued a terse order temporarily freezing a set of controversial Texas abortion regulations.

Those rulings concern two entirely different subjects, but the laws they address share key features: both passed over the vehement objections of Texas Democrats, both are being sold as simple commonsense regulations, both create barriers to constitutionally protected freedoms, both were struck down by district judges who found evidence of unconstitutional legislative intent, and both were eventually put back into force by the Fifth Circuit. Both laws are also part of a larger trend, as Republican-dominated state governments have passed similar legislation throughout the South and Midwest and are now fighting a slew of liberal lawsuits.

Those shared elements reflect the fact that these court cases aren’t simply about voting, abortion, or rank political partisanship; they also reflect a deeper problem of political philosophy: How can judges protect basic rights when a legislature uses regulation to mask denials of basic liberties. With today’s restrictions, there is no clear means for dividing legitimate regulation from de facto rights suppression. Yesterday’s blanket prohibitions on abortion and poll taxes look comparably easy to identify.

Courts are thus left with two broad options: They can interrogate the intentions of a legislature, determining whether the restriction of a right was in fact its “true goal” in passing a law, or they can examine a law’s effects, weighing the supposed benefits of the law against the pressure placed on basic liberties. The first is immensely tempting. After all, it is the intentionality of the attack on liberties—the very fact that a legislature is trying to limit through subterfuge what it cannot ban openly that makes it so offensive. But the hunt for intentions is an exceedingly messy business, and courts would be wise to rest their defense of liberties on firmer ground.

Judges, unlike pundits, must limit themselves to that which can be proven. And as legislators have wised up and learned to speak carefully and preserve deniability, direct evidence of nefarious legislative intent will nearly always be lacking. The Texas legislature is particularly expert at this. The abortion bill’s author, state Rep. Jodie Laubenberg, welcomed its passage by saying: "I am proud of the step we've taken to protect both babies and women. I think it speaks volumes about who we are as humanity." And Texas Governor Rick Perry said the provisions “improve the quality of care women receive, ensuring that any procedure they undergo is performed in clean, sanitary and safe conditions, by capable personnel.” Patient safety, of course, is as present in their statements as the fetuses. So intention-seeking judges are left with nothing more than context and guesswork.

A few judges have embraced the opportunity to conjecture, and the mind-reading of the press has begun to seep into the courts. In his abortion rights opinion, Judge Lee Yeakel explains that although he “is not required” to examine the legislature’s motivations, he has chosen to do so anyway. He concludes that the law was “intended to close existing licensed abortion facilities.” Similarly, Judge Nelva Gonzales Ramos, the federal judge who struck down Texas’ voter ID law, didn’t just find the law’s effects unconstitutional; she went out of her way to accuse the Texas legislature of deliberate discrimination. Her blistering opinion carefully examines the context and passage of Texas’ voter ID law and demonstrates that it belongs squarely to Texas’ long history of racial injustice. The opinion boldly concludes, as a finding of fact, that the law had been “imposed with an unconstitutional discriminatory purpose.”

But do we really want our judges to be striking down laws on the basis of legislative motivations derived from guesswork and conjecture? Reading minds is always a dangerous business, but when dealing with a group of legislators, it’s not even clear what a collective intention means. Certainly some legislators who voted for the abortion restrictions were genuinely (if baselessly) concerned for women’s health, and certainly some legislators who voted for the photo ID law were genuinely (if foolishly) concerned about voter fraud. Surely many more were able to genuinely convince themselves over time that these were real concerns. And what about all those legislators who voted because of the bills’ other provisions, or because of a deal, or with no particular intent other than to do their leadership’s bidding? Whose intent is decisive and which purpose should we privilege? These questions have no good answers, and in the vast majority of cases, the courts are better off staying out of this mess of intertwining and opaque purposes.

But if courts cannot, and should not, prove deliberate discrimination, they can still apply objective balancing tests, to weigh the benefits of a law against its costs. When they do, the relevant question changes: judges no longer ask whether a legislature’s motivation was to limit abortion or to protect patient safety, but whether such a law can be justified by a reasonable person who takes both values seriously. In an important sense, this inquiry is far less fraught and far more coherent—no mind-reading necessary.

At the same time, the judge’s analysis has also become less objective. The judge is still called on to make factual findings about the marginal effects of a law on patient safety and access to abortion, but the degree of weight assigned to each—how much electoral integrity is worth how much voter inconvenience—becomes a matter of personal judgment. Of course, this sounds somewhat undemocratic, and the prospect of a judge actually exercising his judgment (constrained by law and legal precedent, of course) is deeply unsettling to some. In part, the quixotic search for legislative intentions is no doubt motivated by an attempt to allow judges to escape that responsibility. If we can prove that the legislature intended to end abortions, than the judge can refrain from asserting that X barrier to abortion cannot be justified by Y benefit to patient safety. This humility is understandable, but it is also silly. Judgment is what judges are for.

Nearly eight years ago, the Seventh Circuit voted to uphold one of the country’s first voter ID laws. In his stinging dissent, Judge Terrance Evans opened with a flamethrower: “Let’s not beat around the bush: the Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.” Fraud prevention, Evans insisted, was merely a “fig leaf of respectability.” Evans was right, and in the last decade we have only seen a proliferation of these fig leaves. But the proper way to combat them is not by outraged imaginings of an opposition’s intentions, but through the principled interventions of a confident judiciary.