You may remember Priscilla Owen from such hits as “young women seeking to exercise their 14th Amendment rights forfeit their First Amendment rights.” She’s on the 5th Circuit, and the news is expectedly awful for reproductive rights:
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.