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Priscilla, Queen of the Wingnuts


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.

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  • That first link is just so depressing I could cry.

    • It’s hard to pick which arbitrary restriction on abortion is the worst, but parental notification is definitely up there.

      • Parental notification is perverse, but not just bare-facedly crazy. There are aspects to abortion that make it necessary to OK a doctor’s providing a quasi-surgical procedure to a minor who’s legally unable to consent, where that would otherwise be WTF??? material.

        The admitting-privileges stuff is just nakedly “let’s find a way to close abortion clinics.” They’re trying this in Mississippi, where we have ONE clinic. The Catholic and Baptist hospitals of course won’t credential the doc(s), the state hospital doesn’t dare, and neither do the private hospitals that can’t afford the bad press.

        So I’ll rate the latter as somewhat worse than the former. Tho this is a bit like asking who’s crazier, Ted Cruz or the guy in charge of North Korea.

        • But we should treat those situations the same as we treat other ‘quasi-surgical’ situations, and obviously not try to extend them to abortions that aren’t surgical.

          It’s sort of the same thing as with the biased counseling requirements, which are ostensibly about informed consent. Of course there’s a certain level of responsibility doctors owe their patients (and the parents of minor patients), but that’s already covered. All these laws do is single out abortion and normalize the idea that there’s something pernicious about it that requires additional regulating, and they harm actual women in the process.

          • ema

            Parental notification is perverse, but not just bare-facedly crazy.

            Yes, yes it is. Because:

            1) Pregnant minors do not need parental consent for pregnancy-related procedures up to, and including, C/S (major abdominal surgery).

            The argument that pregnant minors are considered emancipated and able to consent when it comes to medical decisions with a 1:10,000* mortality risk (carrying to term), but need parental consent for those with a 1:263,000 risk (1st trim, legal abx) is not sane.

            2) The argument that parents have the right to deny an abx and expose their minor child to high morbidity/mortality but they don’t have the right to force the child to terminate in order to significantly decrease her morbidity/mortality, again, not sane.

            **Williams 21 ed, p 1518

            • ema

              Ugh, extra *, ignore.

        • BlueLoom

          Parental notification is perverse, but not just bare-facedly crazy.

          My problem with parental consent/notification is that too many women, particularly young (read: ages 12-16) women are impregnated/raped by family members (step parent, older brother, uncle, older cousin). Parental consent in such cases is probably not forthcoming. Parental notification could potentially result in serious harm being done to the young woman (by the offending family member or simply by member(s) of the family wishing to cover up the abuse).

          School teacher? School principal? School guidance counselor? Pastor? Maybe. But not parent.

          • Joe

            The fact that some sizable subset involves familial abuse does complicate an already bad situation but if a girl (“woman”?) impregnated by some of these people very well might get a parent’s consent/notification, partially to cover the crime. But, it’s variable.

            I do think someone who is 12 or something needs some assistance. A House episode comes to mind. Forced parental notification/consent is not the answer even there though.

  • It is really depressing to see two other women signing onto this, too. Haynes at least is quite sharp, which rules out ignorance as a motive and leaves us with just plain evil.

    • Joe

      The third judge is a Perry/Bush appointee. Shocker if she is deeply conservative. The no undue burden if you have to travel only 100 miles bit is charming.

      • HA!
        100 mile is nothing!!!

        But, of course, it’s probably a bit tougher on your chauffeur, though…

        But who cares?
        After all, he’s nothing but another moocher and taker!

        • guthrie

          You’d think classifying your servants and extended life support system (food growers, preparers, pharmacy workers etc etc) as moochers and takers would end rather badly, but not so far, in the USA.

  • Joe

    Meanwhile, the USSC — after the Oklahoma Supreme Court held the law was an undue burden after it was sent back to them for clarification — decided not to hear an abortion drug challenge.

    • Probably not teed up so as to assure a Kennedy vote in the majority.

  • Maybe the next time, Judge Owen will sing her decision:

    ‘Arie der Königin der Wingnut.’

  • Wasn’t she also the one who said the Constitution established “cowboy capitalism”?

    • That was Janice Rogers Brown, I think, in a *different* travesty of judicial power issued last week.

      Not to be confused either with the travesty of judicial power by the *2d* Circuit re: stop-and-frisk.

      Bad week. Halloween or something, I guess – scary ghouls in black robes, taking their scythes to the Fourteenth Amendment.

  • JJB

    The opinion is appalling on the merits, and the discussion of the stay pending appeal is if anything even worse. Owen devotes all of one paragraph to the other three factors beyond likelihood of success on the merits. She asserts (1) a state is *always* irreperably harmed whenever its law is enjoined; (2) whenever the state is the appellant, its interest is *always* the same as the “public interest”; and (3)even though Planned Parenthood showed real harm on its side, that’s not enough given that the state is likely to succeed on the merits. This approach completely eliminates the other three stay factors whenever a plaintiff successfully enjoins a law at the district court and the state appeals. And, of course, the application here makes no sense: somehow the state would be irreparably harmed by having the status quo continue for two more months, while actual women will be unable to get the services they need until it’s too late (the very definition of irreparable harm).

    • Wow, I knew I was exercising mental self-defense by not reading that op.

      For (1), the ONLY authority she cites are a couple of single-justice ops by Rehnquist and Roberts. For you non-lawyers, that is pretty desperate reaching for precedent. The authority cited in the Roberts op is … the Rehnquist op. And here’s the sum total of the legal argument & authority in the Rehnquist op:

      “It also seems to me that any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.”

      That’s it. No citation. Just “it seems to me.”

      That P.O.S. *should* be reversed just for failure to apply a correct standard. Unhappily, the circuit justice for the 5th Circuit is Scalia.

      For (2) that “merging” thing doesn’t foreclose the issue of *whether* the public is harmed. Her circuit-justice “citations” get her past that.

      • (I provide some quotations & bonus bitterness here. Thanks for the pointer, JJB!)

  • Joe

    She was involved in the “Gang of 14” compromise and was let thru as well as Pryor and Janice Rogers Brown. Sort of makes it hard to feel that the filibuster for judicial nominations is so important that we cannot go all nuclear or something.


    Meanwhile, inability to nullify the law because the wrong President is filling in nominations to the D.C. Circuit — extraordinary circumstance!

  • Timb

    Who do we imagine is worse? Her or Rogers Brown?

    Personally, I’ll vote for Sentelle as still the worst

    • Sentelle has a lot of history to back that up, but Brown has a long future of wingnuttery ahead of her. Mostly in dissent one day, let us hope.

  • carolannie1949

    What, no condiments? Or does the salt from tears count?

  • Tiny Hermaphrodite, Esq.

    Prediction: Within my lifetime (a good sixty years or so are left to me) the chinese justice system will outstrip the US one in fairness, incorruptibility and humaneness.

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