Texas Supreme Court Justice Priscilla Owen made her second appearance before the Senate Judiciary Committee Thursday — a fate few would wish on Saddam Hussein. While the hearing was more subdued than her first, liberal advocacy groups have not eased a bit, and are calling for the Senate to filibuster her nomination. Since she first appeared, Justice Owen’s feminist opponents have seized upon a battle cry: Owen is extreme, even by Texas standards. You have to give it to the left; they do have catchy sound bites. But like “No Blood for Oil,” what the Owen mantra boasts in Madison Avenue appeal is more than made up for in the complete absence of substance.
To appreciate the paper-thin quality of the argument against Justice Owen and Texas requires but a brief examination of the primary charge — that Owen and Texas are out-of-step on the issue of abortion. This charge is not based upon any statute challenging Roe v. Wade or case in which Justice Owen denied or challenged the right to an abortion — for no such statute or case exists. Rather, the allegation stems from a string of opinions in which Justice Owen interpreted the Texas “parental notification” statute.
It is first necessary to note that far from being “extreme,” the Texas notification law places the state on the moderate-to-liberal end of the regulatory spectrum. A quick survey reveals that 43 states have either parental notification or consent laws on the books. Of these states, a majority utilize the more restrictive “parental consent” type statutes, which require a juvenile seeking an abortion to obtain the consent of at least one parent, or to go to court for a judicial bypass.
Thus, in Ted Kennedy’s liberal haven of Massachusetts, a minor seeking an abortion must first seek the consent of at least one parent, or she must go to court for a finding that she meets the requirements for a bypass. If a minor in Senator Biden’s home state of Delaware wants an abortion, she must also get consent from a statutorily authorized relative or health-care professional, or seek a judicial bypass. In Senator Edward’s home state of North Carolina, a minor seeking an abortion either needs the consent of a parent or grandparent with whom she has lived for six months, or she will have to meet the standards for judicial bypass. And in Senator Kohl and Senator Feingold’s home state of Wisconsin, consent of one parent is also required barring judicial bypass.
By contrast, Texas joins a minority of states with a less restrictive parental notification statute. Under the Texas law, the parent does not have a formal veto as under a consent law, but rather a doctor performing an abortion on a minor must notify her parents at least 48 hours before performing the procedure. Although the Supreme Court has not expressly required a judicial-bypass mechanism for notification statutes, the Texas law provides that a minor can obtain permission from a court to avoid the notification requirement if she can demonstrate that she is “mature and sufficiently well informed,” or that notification would lead to abuse, or that notification would not be in her best interest. Thus, oddly enough, a majority of the Democrats on Judiciary Committee live in states that are more restrictive than Texas.
During Justice Owen’s appearances before the Judiciary Committee, her opinions interpreting the Texas notification statute have been derided as “activist,” and members of the committee have accused her of reading requirements into the statute. What was Justice Owen’s act of activism? In interpreting the somewhat vague or ambiguous terms of the statute (i.e., what does it mean to be “mature” or “well-informed” for the purposes of the statute), she looked to and quoted from United States Supreme Court precedent. Yet the Democratic members of the Judiciary Committee were not satisfied with this answer. If the words she used were not actually in the statute, then she was reading in new requirements and judging in an “activist” fashion. Yet the irony of these statements was somehow lost on them. How is it that in defending abortion — a right that cannot be found unless one wanders from the text of the Constitution into the murky emanations of penumbra — that Owen’s opponents make an argument that even the most rigid textualist reject: the idea that a law must be read as a set of rigid words, devoid of meaning, context, and of their prior interpretation by superior courts? If a Texas supreme court justice is “activist” because she abides by the decisions of the United States Supreme Court, then the term “activist” has been flipped on its head. And indeed, for the members of the Judiciary Committee, it has. Activism, once meaning a judge who acts based upon personal will rather than law, now appears to mean issuing rulings that are contrary to the desires of liberal advocacy groups.
So as Justice Owen awaits a vote from the Judiciary Committee and the Senate as a whole, keep in mind that no matter how many times Owen’s opponents rattle off the cliché, the facts make clear that Justice Owen isn’t extreme — and neither is Texas.
— Christopher Flannery is a senior fellow at the Claremont Institute.