Confirmation Hearing Reinforces Serious Concerns About Justice Priscilla Owen’s Record

Owen's Judicial Activism On Reproductive Rights

Prior to the hearing, 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 a 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 reproductive rights.

Under a 2000 statute, the Texas legislature determined that a minor should be able to obtain an abortion without notification of her parents if she complies with a “judicial bypass” procedure and demonstrates to a court either that she is “mature and sufficiently well informed” to make the decision without notification, that notification would not be in her best interest, or that notification may lead to her physical, sexual, or emotional abuse. Tex. Fam. Code 33.003(i). At the hearing, several Senators expressed concern that Owen would have held, contrary to the Texas Supreme Court majority, that in order to show that she was “mature and sufficiently well informed,” a minor must demonstrate that she was aware of and had considered “philosophic, social, moral and religious arguments” concerning abortion, as well as a specific “understanding of the impact the procedure will have on the fetus.” In re Jane Doe, 19 S.W.3d 249, 264-65 (2000) (Owen, J., concurring) (Doe 1(I)).6

In particular, several Senators raised concerns that these and other requirements were not explicitly contained in the Texas statute, that the Texas Supreme Court majority had found no statutory basis for imposing them, and that Owen’s attempt to impose them was a conservative activist attempt to remake the Texas law from the bench.7 Owen responded by suggesting that the Texas legislature had apparently taken the bypass language “straight out of U.S. Supreme Court cases”, literally “word for word” from another state statute before the Court, and she had thus looked to the meaning of the laws in those cases in interpreting the Texas law.8

In fact, Owen’s attempted explanation does 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 asserts.

Owen first referred to Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). That case did not concern the interpretation of a judicial bypass provision, and indeed barely mentioned the existence of a bypass procedure. Id. at 899. Instead, Casey concerned whether a series of specific Pennsylvania laws relating to abortion, such as a 24-hour waiting period, a detailed informed consent provision, an informed parental consent statute, and a spousal notification provision, imposed an undue burden on reproductive choice. There was no dispute, unlike the Texas cases, as to the meaning of any judicial bypass provision.

Nonetheless, in her concurring opinion in Doe 1(I), Owen relied exclusively on Casey to support her claim that the Texas judicial bypass law should be interpreted to include a requirement that the minor obtain an understanding of the impact of abortion on the fetus. Doe 1(I), 19 S.W.3d at 265. But Casey did not suggest that a generally worded bypass or any other statute should be interpreted to include such a mandate. Instead, it upheld a specific requirement in the Pennsylvania informed consent law that mandated that such information be provided. Casey, 505 U.S. at 881-82. Similarly, Casey’s reference to “philosophic and social arguments” relating to abortion concerned possible “informed consent” regulations that a state could choose to enact, not the question of how to interpret a judicial bypass provision. Id. at 872.

At the hearing, Owen testified that the basis for her claim that a minor must demonstrate that she had considered “religious arguments” concerning abortion was the decision in H.L. v. Matheson, 450 U.S. 398 (1981).9 But Matheson also did not concern the proper interpretation of a bypass provision. In fact, the issue of judicial bypass did not even come up in Matheson, since the case dealt with an “immature, dependent minor.” Id. at 409. Instead, the question was whether Utah could require parental notice by the attending physician for such minors, to which the Court answered yes. The decision’s only reference to religion was a citation in passing to an earlier Court decision for the accepted proposition that a state “may” determine that parental notification or consultation is “particularly desirable with respect to the abortion decision –- one that for some people raises profound moral and religious concerns.” Id. at 409. There was absolutely no suggestion in Matheson that a general bypass law like Texas’ should somehow be interpreted to mandate that a minor demonstrate that she had considered moral and religious arguments concerning abortion.

The final case referred to by Owen at her hearing, Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990), did at least consider a judicial bypass provision with language similar to that of the Texas law. Id. at 511. But Akron also did not concern the interpretation of such a bypass provision. Instead, it dealt with the constitutionality of specific mandates in the Ohio statute, such as the requirement that the minor prove her case by “clear and convincing evidence” and that the physician performing the abortion must notify parents directly unless a bypass is granted. Id. at 515-519. The general language in Akron cited by Owen concerned the state’s justifications for these provisions, specifically contained in the Ohio law, not the question of how the bypass language should be interpreted. Id. at 519, 520; Doe 1(I), 19 S.W.3d at 264.

In contrast to Owen, the Texas Supreme Court majority focused on the “plain meaning” of the statutory language in interpreting the Texas law. Doe 1(I), 19 S.W.3d at 255. They looked specifically at the decisions of other courts that had actually interpreted “similar statutes” with similar language. Id. at 255-56. They pointedly noted that the Texas law was not an informed consent statute, and that the legislature had specifically rejected a proposal to “supply specific, detailed information about abortion procedures and alternatives” to women, including minors. Doe I(2), 19 S.W.3d at 352 & n.5. And they explained that an effort by the 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 testimony at the hearing simply failed to address the concern that she has attempted precisely such judicial activism with respect to the Texas abortion statute.

6 See Trans. at 19-21, 37-38, 49, 71-73 (Senators Feinstein, Kennedy, and Cantwell).
7 Id. See also Trans. at 46-47 (Senator Durbin).
8 Id. at 21, 50.
9 Trans. at 71-72 (explaining that although she had not cited Matheson “on this point” in her opinion, Matheson was cited elsewhere and was the basis for the religion claim).

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