It’s a bad week for women.
Just days ago, an appeals court reversed a federal judge’s decision to block a new law that would’ve shut down about a third of Texas’ reproductive health clinics. That sounds complicated, but it’s really not: Basically, Texas women are losing their legal right to abortions.
The very next day, the D.C. appeals court ruled that the contraceptive coverage mandate in the Affordable Care Act violates the religious freedom of Freshway Foods, an Ohio-based food company – meaning the company’s health insurance doesn’t have to cover birth control for its employees.
So who’s behind these blows to women’s rights? Strangely, it’s two female judges. Thursday’s decision was written by Judge Priscilla Owen, a Bush 43 appointee. And Friday’s ruling came from Judge Janice Rogers Brown, who was – surprise, surprise – also a George W. Bush pick.
Judge Owen’s a Texas native who previously served on the state’s Supreme Court. She was also reportedly in the running to replace Justice Sandra Day O’Connor in 2005, though Harriet Miers was eventually nominated instead. Owen’s got a long, respected legal career – more than thirty years in practice – and even earned the American Bar Association’s highest possible rating for her qualifications when she was nominated to the Fifth Circuit position.
But while Owen’s qualifications may be beyond reproach, her rulings regarding women’s health are more controversial. In 2000, she wrote a much-criticized minority opinion on Texas’ parental notification law, arguing that it should be harder for minors to get judicial approval for abortions without their parents’ consent. Former U.S. Attorney General Alberto Gonzales – also on the Texas Supreme Court at the time – slammed Owen and her contingent in his majority ruling, saying: “[T]o create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism.” In that same opinion, Owen argued that young women should “be aware of…philosophic, social, moral, and religious arguments” against abortions – which activists say is the only known instance of a state supreme court justice trying to create a “religious awareness” standard for the procedure.
As a Texas Supreme Court Justice, Owen also supported the elimination of buffer zones around Planned Parenthood clinics in Houston – another black mark on her women’s rights record.
And then there’s Janice Rogers Brown. Born to a farming family in Alabama in the heart of the Jim Crow years, Brown was originally a fairly progressive Democrat, inspired to go into law by the civil rights movement. But things changed. There’s that time she hired a convicted bank robber – fresh off a ten-year stint in prison – as her law clerk. Oh, and the time she compared liberalism to slavery. She’s an evangelical Christian with a penchant for quoting rock lyrics in her decisions (one greatest hit: rewriting the lyrics to Paul Simon’s “50 Ways to Leave Your Lover” as “50 Ways to Lose Your Liberty”). She was nominated to the D.C. Circuit in 2003, but Senate Democrats fought against her so hard that it took two years and the implementation of the “nuclear option” before she was confirmed. (For more on the so-called “nuclear option,” check out guest blogger Ari Rabin-Havt’s recent post on the topic.)
Where Judge Owen is generally considered a fair and knowledgeable jurist, Judge Brown’s reputation is less airtight. When she was nominated to the California State Supreme Court in 1994, the state’s bar association rated her “unqualified” for the role. In later years, Brown’s colleagues filed complaints against her, saying the justice was “insensitive to established legal precedent . . . and lacked compassion and intellectual tolerance for opposing views.”
And then there’s her record on women’s issues – the topic that’s putting her in the headlines this week. In a 2004 decision centered on employers’ responsibility to cover contraceptives – a case very similar to the current Freshway Foods one – Brown suggested that if employees felt discriminated against, then they should simply move to “more congenial employoment.”
The year before, in a case of alleged date rape involving a 17-year-old girl, Brown asked whether the girl had protested enough, saying none of her requests to stop the sexual activity were “unequivocal.” Though the court eventually ruled the case a rape, Brown was the lone dissenter, writing in her minority opinion: “Is persistence the same thing as force?”
Priscilla Owen and Janice Rogers Brown: women ruling against women, women taking away women’s rights. With these kinds of judges on the bench, perhaps it’s time to redefine the meaning of “violence against women.”
Emma Thorne