Prior to Justice Owen’s first hearing last July, significant concerns had been raised about Owen’s record on reproductive rights, focusing on a number of her dissenting and concurring opinions in several cases dealing with the Texas parental notification statute. Owen’s hearing testimony failed to resolve, and instead reinforced, the concern that she has sought to rewrite or disregard the law in order to impose more burdens on the exercise of reproductive rights.13
In particular, at her hearing last July, Justice Owen contended that she was merely following three U.S. Supreme Court cases in her opinions and had not endeavored to impose burdens on reproductive rights not contained in state law. However, Owen’s explanation could not withstand scrutiny. In none of the three Supreme Court cases she cited did the Court even suggest that a bypass statute like Texas’ should be interpreted as she had asserted. 14
At the March 13 hearing and in written responses to Senator Feinstein, Owen essentially repeated the claim she had made last year that she had looked to several Supreme Court decisions in her opinions on the Texas bypass statute. As before, however, Owen’s claim mixes apples and oranges. The Supreme Court rulings mentioned by Owen all concerned the validity of and justification for various state restrictions on reproductive rights, such as informed consent provisions. None of the decisions concerned the interpretation of a bypass provision like Texas’ law. There is thus no support whatsoever in the Supreme Court cases cited by Owen for her attempts to rewrite the Texas statute to impose additional burdens on reproductive choice.
For example, Owen claimed that under the Texas law, a minor could not be considered “mature and sufficiently well informed” to decide to have an abortion without parental notification unless she demonstrates to a court that she is aware of and has considered “religious arguments” concerning abortion, notwithstanding the absence of any such language in the statute. In re Jane Doe, 19 S.W.3d 249, 265 (2000)(Owen, J., concurring)(“Doe 1(I)”). According to Owen, this was based on a statement by the Court in H.L. v. Matheson, 450 U.S. 398 (1981), in which the Court explained that a state “may” decide that parental notification for immature minors is “particularly desirable with respect to the abortion decision – one that for some people raises profound moral and religious concerns.” Id. at 409. The flaw in this assertion is clear. Matheson concerned one possible justification for a state requiring parental notification for immature minors. It had absolutely nothing to do with the meaning of a bypass statute for mature minors. For Owen to somehow transform such general Supreme Court language into a specific requirement that a minor must demonstrate that she has considered religious arguments under the Texas bypass statute, in the absence of any language or other indication to that effect in the law, is a clear example of judicial activism. 15
In contrast to Owen, the Texas Supreme Court majority did not seek to misuse language from U.S. Supreme Court decisions to inject new requirements into the Texas bypass law. They acknowledged that such rulings were relevant as part of the “backdrop” of the Texas law, but made clear that the statute should be interpreted according to its “plain meaning.” Doe 1(I), 19 S.W.3d at 254, 255. They also looked specifically at the decisions of other courts that had actually interpreted “similar statutes” with similar language, which Owen did not discuss whatsoever. Id. at 255-56. And they made clear that an attempt by a court to “impose a standard different” than that chosen by the legislature would “usurp the legislative function and amount to judicial activism.” Id. at 351. Owen’s recent effort to explain away her attempt to do precisely that was no more successful than it was last year.