Why did courts hit pause for Trump — but not Texas abortions?

A brutal irony is emerging around the legal battle over congressional access to official government records regarding White House involvement in the Jan. 6 insurrection at the Capitol. Last week, former President Trump managed to persuade an appeals court to temporarily halt production of documents (which include call logs, speech drafts and handwritten notes) on the theory that he’d otherwise be irreparably harmed by their release pending a full hearing in the case.

Here’s the irony: When abortion clinics made a similar plea for temporary relief to the U.S. Court of Appeals for the Fifth Circuit and to the U.S. Supreme Court (twice) about a Texas abortion law that clearly violates Roe v. Wade, they were turned down. Being forced to continue a pregnancy, possibly to delivery, was not sufficiently harmful to justify an injunction maintaining the status quo in Texas pending a full hearing on SB8, the law that bans most abortions at six weeks of pregnancy.

By contrast, a former president not being able to stop a sitting president from turning public records over to Congress regarding a bloody coup attempt on Jan. 6 is too much harm for the law to bear. Yet it’s hard to imagine what that actual harm might be — after all, if Trump has nothing to hide, he would have no reason to push this hard. For now, the court nonetheless decided not to put the proverbial cart before the horse.

Given the high-profile nature of Trump’s case, and the presidential and national interests at stake, it makes sense that the U.S. Court of Appeals for the D.C. Circuit decided to tread carefully. But ultimately, he should lose. Trump claims in his lawsuit that his desire for confidentiality (under the auspices of “executive privilege”) supersedes the assessment of sitting President Joe Biden that providing official presidential records to a coordinate branch of government serves the public. Although former presidents do have statutory authority to weigh in on their records for up to 12 years after leaving office, the law has an exception for records requested by Congress. It also enables the current president to effectively veto a former president’s preference. It could take months before an appeals court — maybe even the U.S. Supreme Court — finally decides whether to affirm U.S. District Judge Tanya S. Chutkan’s refusal to enjoin Biden from exercising his prerogative as set forth in the Presidential Records Act and implementing regulations. 

Trump persuaded the U.S. Court of Appeals for the D.C. Circuit that he’d be harmed if the records release was not halted (a stay) because the National Archives and Records Administration was due to deliver the first tranche of documents to the Jan. 6 Committee on Friday. Without an emergency injunction, Trump’s lawyers argued, he would be irreparably harmed because Congress would get the documents while his case for confidentiality makes its way through the appeals process.

It’s the kind of relief that a spouse might seek to keep an abusive partner away from a home pending a custody dispute — sometimes known as a temporary restraining order (TRO). The governing legal standards require that the party asking for the emergency injunction must show at least two more things in addition to showing that they will suffer irreparable harm without a stay: that they are ultimately likely to win the case, and that the public interest favors the injunction. Unlike in Trump’s case, the case for a stay of SB8 was strong.

For abortion providers, the argument was that the Supreme Court already established a constitutional right to an abortion at six weeks under Roe, which forbids states from banning abortions before 24 weeks of gestation, otherwise known as the point of “viability.” As for the public interest, SB8 also made things easy. It contains an unprecedented enforcement mechanism that outsources the work of the government to private vigilantes for up to a $10,000 bounty. A stay — which would keep this law on the sidelines while the courts work through its legality — would have certainly made sense for the public at large, as groups across the political spectrum have argued.

Meanwhile, abortions after six weeks have all but stopped in Texas, despite the fact that federal law protects them. Without a stay from the courts, women are having to travel hundreds of miles and spend hundreds of dollars to exercise a right under the Constitution while the Supreme Court decides whether to tinker with that right in a separate lawsuit involving Mississippi’s 15-week ban, which is set for oral argument in December. Low-income women who cannot afford the costs of arranging travel, child care or missing work might wind up carrying and delivering an infant to term. That is not something that can be undone or repaired. 

Worse, Supreme Court Justice Elena Kagan wrote in her dissent of the court’s first refusal to stay the Texas law that it was done after the court “reviewed only the most cursory party submissions, and then only hastily.” And, she added, “it barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.”

For his part, Trump’s petition was granted swiftly and without Congress or the Department of Justice objecting, or for that matter even taking a position on it. For pregnant Texans seeking access to a constitutional right that’s been guaranteed since 1973, the rules governing emergency relief provided no such protection. The harm is theirs and theirs alone to bear.

Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why” (forthcoming February 2022). Follow her on Twitter: @kimwehle