Enter Priscilla Owen
Fifth Circuit Judge Priscilla Owen was what is euphemistically known as a “controversial nominee” before a group of Senate Democrats allowed her to be confirmed in an ill-considered effort to ward off filibuster reform. As a Texas Supreme Court justice, Owen took thousands of dollars in campaign donations from Enron — yes, THAT Enron — and then authored an opinion reducing the company’s taxes by $15 million. She fought to limit abortion rights in a way that her fellow Justice Alberto Gonzales described as an “unconscionable act of judicial activism“. Yes, THAT Alberto Gonzales.
So there really wasn’t much question how Owen would vote when she was asked to consider Texas’ new law requiring doctors performing abortions to have admitting privileges in an nearby hospital.
If Roe v. Wade were still good law — that is, if abortion were still considered a “fundamental” right and laws abridging the right were still treated as preemptively unconstitutional — then no judge acting in good faith could have upheld the Texas law. As the trial court judge explained in his opinion blocking this provision of Texas law, “there is no rational relationship between improved patient outcomes and hospital admitting privileges.” Emergency room doctors “treat patients of physicians with admitting privileges no differently than patients of physicians without admitting privileges. Admitting privileges make no difference in the quality of care received by an abortion patient in an emergency room, and abortion patients are treated the same as all other patients who present to an emergency room.” Thousands of women will be unable to obtain an abortion because of Texas’ new law, and the law does little, if anything, to protect women’s health.
But, of course, Roe is not good law, Casey is, and Judge Owen had no trouble wielding Casey‘s vague standard to achieve the result she desired. Owen brushed off the evidence that more than 22,000 women would be denied care thanks to Texas’ law, concluding instead that “the provisions of H.B. 2 requiring a physician who performs an abortion to have admitting privileges at a hospital . . . do not impose a substantial obstacle to abortions.”