The U.S. Court of Appeals for the Tenth Circuit encompasses Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. To date, the Tenth Circuit has had six women serve on the court, including Judge Allison Hartwell Eid, who was nominated by President Donald Trump in 2017 and received her commission on November 3, 2017.260 The first woman to be appointed to this circuit was Stephanie Kulp Seymour.261 Judge Seymour was appointed by President Carter in 1979, followed by Judge Deanell Reece Tacha, who was appointed by President Ronald Reagan and received commission in 1985.262 It would take another ten years before the next female judge was appointed—Mary Beck Briscoe, who was nominated by President Clinton in 1995.263 It took roughly another twenty years for the next women to be nominated to this circuit: Carolyn Baldwin McHugh and Nancy Louise Moritz in 2014, both appointed by President Obama.264 Only two people of color have sat on this court and both are men;265 no women of color have ever served on this court.
Tenth Circuit abortion jurisprudence is exactly what we expected to see as far as the role of women on the court in deciding abortion cases. The majority of cases that women were involved in had pro-choice outcomes.266 Where the opinions were anti-choice, the female judge dissented or was bound by Supreme Court jurisprudence. In this circuit, women have often dissented from anti-choice opinions and men have dissented from pro-choice opinions.
260. See Eid, Allison Hartwell, FED.JUD. CTR., https://www.fjc.gov/history/judges/eid-
allison-hartwell [https://perma.cc/6A7B-SAKJ] (last visited Apr. 10, 2019); U.S. Court of
Appeals for the Tenth Circuit: Judges, FED.JUD.CTR., https://www.fjc.gov/history/courts/
u.s.-court-appeals-tenth-circuit-judges [https://perma.cc/J2CH-4AXC] (last visited Apr. 10, 2019).
261. See U.S. Court of Appeals for the Tenth Circuit: Judges, supra note 260.
262. See Seymour, Stephanie Kulp, FED.JUD.CTR., https://www.fjc.gov/history/judges/
seymour-stephanie-kulp [https://perma.cc/WYS7-NU4Z] (last visited Apr. 10, 2019); Tacha,
Deanell Reece, FED. JUD. CTR., https://www.fjc.gov/history/judges/tacha-deanell-reece
[https://perma.cc/BAA7-6VT2] (last visited Apr. 10, 2019).
263. See Briscoe, Mary Beck, FED.JUD.CTR., https://www.fjc.gov/history/judges/briscoe- mary-beck [https://perma.cc/42Y6-WXPE] (last visited Apr. 10, 2019).
264. See McHugh, Carolyn Baldwin, FED.JUD.CTR., https://www.fjc.gov/history/judges/
mchugh-carolyn-baldwin [https://perma.cc/K7DY-D78W] (last visited Apr. 10, 2019);
Moritz, Nancy Louise, FED. JUD. CTR., https://www.fjc.gov/history/judges/moritz-nancy-
louise [https://perma.cc/UFH4-TSM4] (last visited Apr. 10, 2019).
265. Judge Carlos F. Lucero is a Latino man and the first person of color to serve on the Tenth Circuit. He was confirmed in 1995. Lucero, Carlos F., FED. JUD. CTR.,
https://www.fjc.gov/history/judges/lucero-carlos-f [https://perma.cc/R389-AR74] (last visited Apr. 10, 2019). Judge Jerome Holmes, a Black man, was the second person of color to be nominated to the Tenth Circuit. He was confirmed in 2006. Holmes, Jerome A., FED.
JUD.CTR., https://www.fjc.gov/history/judges/holmes-jerome [https://perma.cc/575H-PHNF]
(last visited Apr. 10, 2019).
Of the twenty-two abortion cases decided since 1979, women sat on the three-judge panel for fourteen cases.267 Only in one of those cases was more than one woman represented on the panel.268 Ten of the fourteen decisions were pro-choice, two were anti-choice, and two were mixed. The following will analyze each case in turn.
For example, in Hern v. Beye,269 Judge Tacha, appointed by President Ronald Reagan, wrote a pro-choice majority opinion. In Hern, the plaintiffs—a physician and three women’s health-care facilities—challenged various sections of Colorado’s constitution, statutes, and regulations that forbade the use of state funds to pay for abortion services unless the life of the mother is at risk.270 The district court granted an injunction prohibiting the enforcement of these provisions and held that any state that participates in the federal Medicaid program must cover abortions for pregnancies resulting from rape or incest.271 Judge Tacha, writing for the majority, affirmed.272 Relying on the Supreme Court case Harris v. McRae,273 Judge Tacha held that, under Medicaid, as amended by the Hyde Amendment, states are obligated to cover abortion for which federal funding is available.274 Judge Tacha further held that Colorado’s funding restriction on abortion violated the requirements of federal law:
First, Colorado’s Medicaid program as amended by the abortion funding restriction impermissibly discriminates in its coverage of abortions on the basis of a patient’s diagnosis and condition. While 42 C.F.R. § 440.230(c) allows states to use medical need as a criterion for placing appropriate limits on coverage, a state may not single out a particular, medically necessary service and restrict coverage to those instances where the patient’s life is at risk. . . .
Second, Colorado’s restriction violates 42 U.S.C. § 1396a(a)(17) because it is inconsistent with the basic objective of Title XIX—to provide qualified individuals with medically necessary care.275
Here, Judge Tacha identifies both the discrimination that the funding restriction is based on and that abortion is medically necessary care that must be covered by Medicaid in the case of rape or incest. The court ultimately held that, as long as Colorado continues to participate in the federal Medicaid program, it must cover abortion in the case of rape or incest for all eligible individuals.276
267. See id.
268. See Planned Parenthood Ass’n of Utah v. Herbert, 839 F.3d 1301, 1302 (10th Cir.
2016). 269. 57 F.3d 906 (10th Cir. 1995). 270. See id. at 907. 271. Id. at 908. 272. See id. at 907–08. 273. 448 U.S. 297 (1980). 274. Hern, 57 F.3d at 909. 275. Id. at 910–11. 276. See id. at 913.