Late yesterday, the Fifth Circuit handed down a decision which, as every headline (including ours) will tell you, threatens to close most of the abortion clinics left in Texas. This is beyond awful because thousands of women will be without health care.

It is also beyond awful because it illustrates the technical lengths to which conservative judges will go to try to legislate women's health rights out of existence.

First, a recap: The Fifth Circuit decision is not a full disposition of the abortion issues in dispute. Instead, it's a ruling that while Texas awaits such a disposition, it can go ahead and implement H.B. 2, a Texas law that imposes new operating burdens on abortion clinics. The main requirements are twofold: that the clinic employ a doctor who has admitting privileges at a local hospital, and that the abortion take place in what's called an "ambulatory surgical center."

Ambulatory surgical centers are expensive to build, and doctors with admitting privileges are hard to come by. In late August a district court ruled that these requirements were unconstitutional; the Fifth Circuit is still preparing to hear the appeal of that case. But they've decided that in the interim Texas can enforce the law, which makes the appeal almost moot. Regardless of whether or not the H.B. 2 standards are eventually unconstitutional, 13 abortion clinics will have to close in the interim because they don't meet them.

That means, as Irin Carmon notes at MSNBC, that "one out of six Texan women seeking an abortion will now live more than 150 miles from the nearest clinic." Super.

But the decision is also galling as a decision, thanks to the legal fiction the judge uses to justify lifting the stay. It is a master class in why people hate lawyers and are also—with the help of the Supreme Court—starting to hate judges. The decision cravenly and cynically treats the law like a disinterested machine, elevating technical bullshit over common sense.

A key technical question is whether in challenging H.B. 2, the plaintiffs had to show "direct evidence" that the Texas legislature had an "improper purpose" when it enacted the bill. That "improper purpose" is one prong of a test the Supreme Court set up years ago in Planned Parenthood v. Casey. It is the subject of a lot of confusing case law, and amounts to asking whether or not the legislature had some valid reason for setting up the restriction. And it is never more maddening than it is in this opinion.

It is crazy that a court can't simply assume, based on the evidence, that Texas legislators knew full well this law would close a bunch of abortion clinics and make it extremely expensive to build and maintain new ones. And that should be a de facto improper purpose. Otherwise you stick plaintiffs with the idiot task of having to parse intentionally bland and misleading legislative statements about safety and health for true intentions.

Another chunk of the decision tries to spank the district court for deciding that the closing would effectively be an undue burden. And their key point, believe it or not, is that the district court didn't use exactly the right language to describe it (I've omitted citations here to make this more readable):

The district court concluded that this reduction in supply of clinics was an undue burden and facially invalidated the ambulatory surgical center provision. In doing so, the district court applied neither the Fifth Circuit's "no set of circumstances" test nor Casey's "large fraction" test. Instead, the district court found that "a significant number of the reproductive-age female population of Texas will need to travel considerably further in order to exercise its right to a legal previability abortion." The district court "conclude[d] that the practical impact on Texas women due to the clinics' closure statewide would operate for a significant number of women in Texas just as drastically as a complete ban on abortion." However, under this circuit's precedent, and Carhart, a "significant number" is insufficient unless it amounts to a "large fraction."

So because the lower court chose to describe one in six Texas women as a "significant number" rather than a "large fraction," the Fifth Circuit ruled that it had not properly tested the question of how widely restrictive the law is. On the basis of this alleged semantic difference, the closings go ahead.

It will not surprise you, I'm sure, if I note that the judge who wrote this decision was appointed by George W. Bush.

Some people, looking at this, might say tough cookies, precedent is precedent, and give some kind of speech about the rule of law. And yet: the rule of law in the country is founded on faith, on some level—the belief that judges have a commitment to justice, that they are striking a balance between precedent and the true facts on the ground, and that they are not trying to deliberately screw anyone over.

But lately with some of these decisions, it's obvious that this is all just a silly political game to them. There was no reason on earth to lift this stay pending the proper appeal; doing it just illustrates how nastily committed to its political ends the Fifth Circuit already is.

[Image via AP.]