It’s been a day of body blows for reproductive rights. On Thursday night, the U.S. Court of Appeals for the 5th Circuit reversed a lower court’s decision to temporarily block a provision of the omnibus Texas abortion law that requires doctors performing abortions to have admitting privileges at a local hospital. The appeals court found that it’s constitutionally OK for the requirement to trigger the closure of fully one-third of the reproductive health clinics in the state, because the Supreme Court has found that “the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” The ruling will be catastrophic, measured in access for women to a procedure they have the constitutional right to obtain. The decision was written by Judge Priscilla R. Owen, a George W. Bush appointee, and joined by two other judges who are women—oh how the right is crowing—and also Bush appointees.
Similar admitting privileges provisions have been struck down by courts in Alabama, Mississippi, North Dakota, and Wisconsin. Judges in each of those cases saw these abortion restrictions for what they are—unconstitutional burdens on the right to access—and blocked them.
On Friday, morning, it was the turn of another extremely conservative woman chosen for the bench by Bush, Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit. Brown handed down a similarly dramatic decision holding that the provision in the Affordable Care Act that requires companies to provide health care coverage that includes contraception "trammels" the religious freedom of an Ohio-based food service company, Freshway Foods, through its two owners, who claimed that the mandate violated its Catholic faith. This is a company we are talking about, not its owners. But following headlong in the wake of the Supreme Court’s wrongheaded finding in Citizens United that corporations are people, too, Brown found that the mandate violates the company’s strongly held religious convictions. To make the company provide a health care plan—from an outside insurer—that offers contraceptive coverage is a “compel[led] affirmation of a repugnant belief,” Brown wrote. The argument that a for-profit secular company has a religious conscience—separate and apart from the religious beliefs of its owners—is a notion that vaults the concept of personhood from the silly (“corporations are people, my friend”) to the sublime (also they pray).
It’s hard to overstate how radical these two decisions are. So it should be especially dispiriting for the left that the other really big thing that happened Thursday was the filibuster by Senate Republicans of Patricia Ann Millett, Obama’s centrist nominee to fill a vacancy on the D.C. Circuit, despite her exemplary credentials. Millett is no radical—no lefty retort to Owen and Brown. She’s a partner at Akin Gump who worked in the solicitor general’s office for both Clinton and Bush and has represented the pro-business U.S. Chamber of Commerce. She’s a military wife. That didn’t stop Republicans from claiming that simply by putting up a judicial nominee of his choosing, President Obama was attempting the “pack the court.”
What’s the thread through these three stories? Just this. If Priscilla Owen and Janice Rogers Brown sound familiar to you, that’s because they were the two Bush judicial nominees at the center of the Great Filibuster Showdown of 2005. In May 2001, just after taking office, Bush introduced 11 nominees for vacancies on the federal appellate courts. He was signaling his intention to reshape the federal judiciary, and his willingness to fight for his nominees, right down to the bloody end. Because that’s what his base demanded. Democrats blocked some of those appointments. Bush stuck to his guns. In 2004, immediately following his re-election and emboldened by Republican gains in the Senate, he pushed forward a list of judges he planned to renominate, despite what he characterized as years of Democratic obstruction. Both Owen and Brown were on that list. And as Charlie Savage detailed at considerable length in 2008, the effect of the Bush nominations on the federal judiciary was staggering. It still is. As we’ve seen it again this week.
A close reading of Owen and Brown’s opinions shows how far they are willing to go. A little history first: In 2000, when Owen was on the Texas Supreme Court, she had to interpret a law that allowed girls to have abortions without telling their parents if they could show a judge they were “mature and sufficiently well informed” to make the decision on their own. Owen and another judge repeatedly dissented when their colleagues opted to give girls a second try to meet the standard. They chided 16- and 17-year-olds for not speaking with members of the clergy and, in one case, for not considering “marrying the father of the child.” Another judge on the court at the time accused Owen of “unconscionable judicial activism.” You know who that was? Not a guy known for his great solicitude for the right to abortion: future Bush Attorney General Alberto Gonzales.
In Thursday’s ruling, Owen champions the double speak of abortion opponents that is their new favorite weapon. This is the argument that regulations designed to fundamentally block access to abortion are really all about protecting women’s health. The justification for requiring abortion providers to have local admitting privileges sounds so pure: Texas just wants to ensure that a patient who experiences complications gets the care she needs. But women already get this care in the rare instance that they need it—they just have to go to the emergency room.
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