A May 10 Washington Times news article claimed that Democrats have criticized Texas Supreme Court Justice Priscilla Owen, President Bush's nominee for the 5th U.S. Circuit Court of Appeals, primarily for refusing to grant minors waivers under Texas' parental notification law. The Times dismissed this criticism, claiming that "polls show overwhelming support" for laws requiring minors to notify or obtain permission from a parent before getting an abortion. In fact, such poll data is irrelevant to Democratic criticism of Owen. Democrats claim Owen tried to rewrite the law by imposing obstacles to receiving a waiver that the letter of the law did not require. In one case, then-fellow Texas Supreme Court Justice Alberto R. Gonzales, now Bush's attorney general, wrote a concurring opinion, in support of granting a bypass, in which he described Owen's attempt to rewrite the law as "an unconscionable act of judicial activism."
Texas law requires that minors seeking an abortion notify their parents, except under circumstances when a "preponderance of the evidence" shows that the minor is "mature and sufficiently well informed to make the decision"; "notification would not be in the best interest of the minor"; or "notification may lead to physical, sexual, or emotional abuse of the minor." Owen dissented from the court's 2000 ruling on Jane Doe 1(II), 19 S.W.3d 346, in which the court determined that "Jane Doe" had met the legal requirements for a judicial bypass. In his concurring opinion, Gonzales, then Owen's colleague on the Texas Supreme Court, harshly criticized the dissenting opinions for "suggest[ing] that the exceptions to the general rule of notification should be very rare and require a high standard of proof." Gonzales argued that those "are policy decisions for the Legislature."
Gonzales went on to express his own approval of parental notification laws, but noted that, as a judge, it was not in his power to "rewrite" them:
Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism. As a judge, I hold the rights of parents to protect and guide the education, safety, health, and development of their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so.
The Times hinted at this criticism by citing a NARAL Pro-Choice America "position statement," which described Owen as an "anti-choice" judge "who is willing to rewrite the law in accordance with those beliefs." The NARAL document noted Gonzales's criticism of Owen's opinion and cited numerous instances in which, the group argues, she attempted to create new obstacles preventing minors from obtaining a judicial bypass. The Times, however, did not discuss NARAL's criticisms further.
Apart from her record in parental notification cases, Owen's critics have levied other criticisms against her. A People for the American Way report on Owen noted her "frequent dissents and efforts at judicial activism in favor of corporate and other interests in cases in which the majority had protected the rights of consumers and other citizens." In addition, Sen. Patrick Leahy (D-VT), ranking member of the Senate Judiciary Committee, cited what he described as Owen's willingness to ignore legislative intent and anti-consumer bias apparent in her decisions.
The Times wrote:
Democrats' primary line against Justice Owen has been several cases in which she argued that the teenagers involved were not mature enough to bypass a Texas law requiring them to notify a parent before having an abortion.
"Her record to date is not only predictive of a judge who is personally anti-choice, but one who is willing to rewrite the law in accordance with those beliefs," said a position statement released by NARAL Pro-Choice America. Senate Democrats then went after her, describing her as "far outside the mainstream."
Yet polls show overwhelming support for laws requiring minors to get permission from a parent before getting an abortion. That support is even higher for laws that only require notification.