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Abortion is Exhibit A for the opponents of federal appeals court nominee Priscilla Owen. And she has a paper trail: As a Texas Supreme Court justice she ruled in a dozen cases involving teens who sought judicial approval to have abortions without telling their parents. Owen’s critics point to one case in particular in which they say she added, on her own and without legal precedent, a requirement that a young woman be advised of religious issues before undergoing an abortion. “You did insist on certain tests that were not in the statute,” said Sen. Dianne Feinstein, D-Calif., at Owen’s July 23 confirmation hearing before the Senate Judiciary Committee. Owen replied, “I tried my very best to give effect to legislative intent. I honestly believe I did not go beyond it.” The fate of Owen’s nomination to the 5th U.S. Circuit Court of Appeals may turn on the exchange, as well as the broader question it tapped into: Was Owen following the law, or is she a conservative “judicial activist”? A close look at the case at hand provides no clear answer. But it does illustrate a complex question of law that is often pummeled into caricature by the rough politics of judicial nominations: Judicial activism, particularly in the volatile arena of reproductive rights, is in the eye of the beholder. The issue in the case could also doom the nomination. Democrats hold a 10-9 majority on the Judiciary Committee, and some observers believe that the abortion and judicial activism questions could provide the Democratic votes to defeat Owen. The case, known as Jane Doe I, was decided Feb. 25, 2000, the first of a dozen in which the state court interpreted a new Texas statute effective on Jan. 1, 2000, that provides a “judicial bypass,” permitting teen-agers under the age of 18 in specific circumstances to have abortions without telling their parents. The court voted to send the case back for further consideration to the trial court, which had denied the bypass. But Owen wrote a separate opinion that reflected her views alone. The precise issue before the court was whether the young woman who brought the case was “sufficiently well informed” about abortion to make her decision. That phrase appears in the Texas notification statute, but it is not defined, nor does the statute say who has the job of informing the woman. Owen wrote, “[The young woman] should be able to demonstrate to a court that she understands that some women have experienced severe remorse and regret. She should also indicate to the court that she is aware of and has considered that there are philosophic, social, moral and religious arguments that can be brought to bear when considering abortion.” Last week, when Sen. Feinstein asked Owen about her approach to the case, Owen replied that, in her view, “the legislature wanted us to look at what the U.S. Supreme Court had done and said” in its cases interpreting other states’ notification laws. “So I looked at Casey and Akron.” Owen was referring to two U.S. Supreme Court cases — the 1992 decision in Planned Parenthood v. Casey and the 1990 ruling in Ohio v. Akron Center for Reproductive Health. Both upheld the constitutionality of parental notification laws that, like the Texas statute, include a judicial bypass. Akron does not refer to religion at all. Casey uses the word, but not in listing the factors that a state may require a woman to consider before having an abortion. In Akron, Justice Anthony Kennedy, writing for a 6-3 majority, stated: “A free and enlightened society may decide that each of its members should attain a clearer, more tolerant understanding of the profound philosophic choices confronted by a woman who is considering whether to seek an abortion. Her decision will embrace her own destiny and personal dignity, and the origins of the other human life that lie within the embryo.” In Casey, the Court repeated its emphasis on “philosophic” issues when addressing the limits of a state’s authority to require that a woman be informed before an abortion. In a joint opinion, Justices Kennedy, Sandra Day O’Connor and David Souter wrote: “The state may enact rules and regulations designed to encourage [the woman] to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term.” Casey went on to discuss religion in connection with the abortion choice — but not in the context of a judicial bypass. The Pennsylvania law at issue in Casey also mandated a 24-hour waiting period before an abortion, and religion came up incidentally in connection with that provision. “The waiting period may provide the parent or parents of a pregnant young woman the opportunity to consult with her in private,” the three-justice plurality opinion noted, “and to discuss the consequences of her decision in the context of the values and moral or religious principles of their family.” In discussing the judicial bypass in the Jane Doe I case, it appears that Owen added “moral and religious” principles to the “philosophic and social” ones specifically approved by the Supreme Court. But does that amount to a significant rewriting of the Court’s standards — especially given the Court’s discussion in Akron of the fetus as “the other human life”? The National Abortion and Reproductive Rights Action League (NARAL) set the anti-Owen tone before the July 23 hearing, referring to Jane Doe I and others. “Owen’s record reveals four particular instances of egregious judicial activism,” NARAL wrote. The first example it specified was “requiring a young woman to consider religious issues before she can have a judicial bypass.” Betsy Cavendish, legal director of NARAL, says Owen’s language “seems to me to be a great distance from Casey.” She adds, “‘Philosophical’ is a long way from ‘religious.’” C. Boyden Gray, a former White House counsel and leading Owen supporter, says that, on the contrary, Owen “tracks and paraphrases” the Supreme Court’s language. “I don’t think that’s legislating. I think that’s in the spirit of what the Supreme Court has said,” says Gray. “I don’t think anything in the Supreme Court cases excludes religion as a source of philosophy. In my book, philosophy includes the philosophy of religion.” BALANCING THE SCALES For more than a decade, liberal activists have had a couple of central addresses to turn to in coordinating their responses to judicial nominations. Now, a new group created by former White House Counsel C. Boyden Gray, a partner at Washington, D.C.’s Wilmer, Cutler & Pickering, is hoping to do for conservatives what People for the American Way and the Alliance for Justice have done for liberals. The conservative organization, the Committee for Justice, was launched on the same day as the Senate Judiciary Committee hearing for Priscilla Owen. Owen is the first beneficiary of the new group’s support. Gray had already come forward as a leader of the pro-Owen forces. On July 15, an hour after a liberal coalition presented the case against Owen at a press conference at the National Press Club, Gray spoke in favor of the nominee in the next room. Gray says he did not consult the White House before setting up the group. “I was the key force behind this,” he says. “There needs to be a counter to [People for the American Way President] Ralph Neas. He doesn’t have an opponent.” Gray says that unlike other groups of the left and right that lobby on nominations, all of which “have a lot of agendas,” his group will focus solely on the confirmation process. Other founders of the group include Fred Fielding, founding partner of D.C.’s Wiley, Rein & Fielding, and former Sen. Connie Mack, R-Fla., now a senior policy adviser at Shaw Pittman. The group plans to circulate position papers on controversial nominees and to launch television campaigns against Democratic senators in swing states who oppose the president’s judicial nominees. Elliot Mincberg, the legal director of People for the American Way, says the notion that his group faces no opposition is “absurd on its face.” “We have plenty of opponents — the Family Research Council, Concerned Women for America, the Free Congress Foundation — that consistently outspend us,” Mincberg says. “Gray is of course welcome to join in the game,” Mincberg adds. ETHICS WATCH As in the case of Judge Charles Pickering Sr. of the U.S. District Court for the Southern District of Mississippi, who was rejected by the committee on a 10-9 vote in March, some ethics questions not related to Owen’s work on the bench arose at her hearing. Sen. Russ Feingold, D-Wis., told Owen that he understood that she had lobbied then-Gov. George W. Bush of Texas in 1998 to set aside state funds for a prison ministry. He said that, if true, this conduct would violate several provisions of the Texas code of judicial conduct. Owen replied that she had merely helped set up a meeting between her pastor and the governor so that the pastor could propose a six-week ministry in a state women’s prison that did not cost the taxpayers a cent. “In my mind, it was friend to friend, not judge to governor, and it was not a lobbying effort,” said Owen. “I appreciate your answers,” Feingold replied. The issue did not come up again at the hearing.

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