Dear President Obama, This Is Why Judges Matter

Two Bush appointees deliver body blows to reproductive rights—and demonstrate the power of the bench.

Janice Rogers Brown, and Priscilla Owen
Judges Janice Rogers Brown (left) and Priscilla Owen on May 17, 2005, on Capitol Hill in Washington.

Photo by Chip Somodevilla/Reuters

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.

As the district judge who blocked the provision observed, this rule really just operates to shut down clinics, because in states like Texas, there are hundreds of miles in which it’s impossible for a doctor who does abortions to find a hospital willing to grant her admitting privileges.

As Andrea Grimes of RH Reality Check reports, the Texas solicitor general made it easy to see through the charade here by arguing that the state has the right to impose “inconveniences on women seeking abortion in hopes that it may lead women considering abortion to consider childbirth instead.” In her ruling Thursday, Owen took that idea and ran with it. Texas can require doctors to have admitting privileges even though there’s no benefit to women seeking emergency treatment because of the state’s interest in “regulating the medical profession.” It is enough that one witness testified that admitting privileges help ensure that doctors are credentialed.

Owen next minimizes the effect that the admitting privileges will have on women. Planned Parenthood says that 22,000 women across Texas won’t have access to a clinic if this law goes into effect. Owen shaves that down to the women who live in 24 counties in the Rio Grande Valley by finding that 90 percent of women who lives elsewhere in Texas still live within 100 miles of a clinic—and that is good enough. As for the women of the Rio Grande, well, they can just jet off the 150 miles to Corpus Christi, and that too is not a real burden. As for evidence presented to the district court that many women in the area are immigrants who don’t have the papers to make it to Corpus Christi because of checkpoints: “This obstacle is unrelated to the hospital-admitting-privileges requirement.”

This is the kind of no-holds-barred approach that makes right-wing hearts sing. It goes without saying, but we will say it anyway: The hardship here falls almost entirely on poor women. They’re the ones for whom a long trip, which they will likely have to make more than once given the state waiting period already in effect, is a serious drain. Owen and the two other appellate judges who joined her are more than willing to make their lives harder. She may have gone further in this direction than any other judge. In 2003, the U.S. Court of Appeals for the 6th Circuit upheld an abortion regulation that shut down one clinic, saying it was good enough that there is another clinic 55 miles away. But 150 miles for women in 24 counties—that’s a real step up. Or down.

Compare Owen’s coldness to the women of the Rio Grande Valley to Brown’s bottomless concern for Francis and Philip Gilardi, the owners of Freshway Foods. They oppose contraception. So they exclude it from the company’s health insurance coverage. “But along came the Affordable Care Act,” Brown writes. The contraception mandate in the law doesn’t apply to religious organizations or small businesses. But Freshway Foods is neither. And so, Brown says, the Gilardis—personally—found themselves “on the horns of an impossible dilemma.”

To find in their favor, Brown has to effectively confer personhood on Freshway Foods, because the law protecting religious freedom that’s relevant here (the Religious Freedom Restoration Act) prevents the government from substantially burdening “a person’s exercise of religion.” No worries. Brown selectively cobbles together some history, and waves her Citizens United wand, and presto! Freshway Foods is saved from having to sign up with an insurer who will cover its employees for birth control.

The Supreme Court should have the last word here, for better or worse. Owen’s ruling means there’s now a split in the lower courts over the constitutionality of requiring hospital admitting privileges for abortion providers. Brown’s opinion means that the contraception mandate is now tied 2–1 in the federal appeals courts, with more suits pending.*

Obama cared enough about the Supreme Court to push for his two nominees, Elena Kagan and Sonia Sotomayor. But with a handful of notable exceptions, the president has not made bold choices for the appeals courts. And when his nominees have met obstruction in the Senate, he has rarely fought for them. Last summer, when he tapped Millett, Obama signaled that he was ready to take a bigger stand by presenting her as part of a package of three D.C. Circuit choices. Now it’s time for him to come through. If he needed any more reminders of the power of the bench—a power that endures for decades after a presidency has ended—Owen and Brown just gave it to him. In a double dose.

Correction, Nov. 3, 2013: This article originally said the contraception mandate is losing 2–1 in the federal appeals courts. In fact it is tied 2–2. (Return.) It also misstated that the D.C. Circuit ruled that the contraception mandate in Obamacare “trammels” the religious freedom of the company Freshway Foods, and conferred personhood on the company. The court found that the contraception mandate violates the Religious Freedom Restoration Act because Freshway Foods is a closely held company, so the mandate violates the rights of its owners. The ruling effectively confers personhood on the company rather than directly doing so.