Earlier this week, District Court judge Lee Yeakal issued an injunction preventing some provisions of Texas’s draconian new anti-safe abortion law from being enforced. As the Prospect‘s Abby Rapoport explained in detail, Judge Yeakal’s ruling was hardly an unmitigated triumph for reproductive freedom, as it left some of the worst parts of the statute standing. Still, in a legal context in which states have been permitted to do almost anything to restrict abortion access short of an outright ban, the ruling was an important victory. Even a partial victory for reproductive rights, however, was too much for Fifth Circuit Republicans to bear.
The Fifth Circuit panel that reinstated the Texas law consisted of three judges nominated by George W. Bush. The author’s opinion was Priscilla Owen, an anti-reproductive freedom fanatic so extreme that as a judge on the Texas state judge she invented an extra-statutory requirement that minors undergo religious counseling before obtaining an abortion without parental consent. (She believed, in other words, that it wasn’t enough for young women to have their 14th Amendment rights ignored; their 1st Amendment rights should be ignored as well.) Owen’s opinion was so lawless that future Bush attorney general Alberto Gonzales-someone unlikely to be invited to many ACLU awards dinners-called her opinion an “unconscionable act of judicial activism.” Owen and her two reactionary colleagues found that Texas “was likely to succeed on the merits” when its appeal was heard and hence lifted the injunction against enforcing certain key parts of the legislation.
Owen’s opinion yesterday reflects her longstanding hostility to the fundamental rights of women. Judge Yeakel’s finding that the mandate requiring doctors administering abortions to maintain admitting privileges at hospitals unconstitutional was based on the obvious fact that the requirement would make abortion far less accessible for many Texas women-with no evidence that it would make the procedure safer. Under Planned Parenthood v. Casey, regulations are unconstitutional if they constitute an “undue burden.” If Texas’s regulation isn’t an undue burden it’s not clear what regulation short of a ban could be. Judge Owen’s argument is that because rural women are disproportionately affected, the group of women affected isn’t large enough to constitute an undue burden:
There was evidence offered by Planned Parenthood that more than 90% of the women seeking an abortion in Texas would be able to obtain an abortion from a physician within 100 miles of their respective residences even if H.B. 2 went into effect. This does not constitute an undue burden in a large fraction of the relevant cases.
This argument-which has a long history among conservative judges hoping to overrule Roe v. Wade incrementally-is transparently illogical and destructive when it comes to the fundamental rights of women. As the Court argued when striking down a spousal notification requirement in Casey, “[t]he proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Owen’s standard, conversely, has the perverse effect of making the fact that most abortion regulations are grossly inequitable an argument in favor of their constitutionality.
It must be said, however, that a large part of the problem here remains Casey itself. Casey‘s vacuous “undue burden” standard certainly doesn’t require Owen’s finding that the statute is likely constitutional. But nor does it clearly foreclose it. Particularly given that the Court-as Owen notes more than once-used similar logic in Casey to uphold arbitrary mandatory waiting periods, it’s hard to argue that the Fifth Circuit is refusing to apply Casey per se. The “undue burden” standard, because it has no real content, is exactly as good as the judge applying it. When this judge is someone like Priscilla Owen, you end up with things like a regulation resulting in a third of Texas abortion clinics closing being upheld under a precedent that allegedly holds a woman’s right to choose in the highest esteem.
The wide discretion that Casey gives to lower Court judges, however, is an excellent illustration of why Republican “packing the court” truthers are so desperate to assert that it’s fundamentally illegitimate for Obama to make consequential appointments to the circuit courts. When judges like Priscilla Owen are charged with applying Supreme Court precedents, this is bad news anyone but the most powerful interests when they claim their rights in court. It’s also an excellent example of why Senate Democrats can’t tolerate Republican obstructionism-if Republican presidents can get judges as radical as Owen confirmed, Obama’s mainstream nominees should be confirmed too. And if the Republican minority continues to systematically obstruct judicial appointments, the filibuster needs to go.