Statement of Opposition to the Nomination of Justice Priscilla Owen
to the Fifth Circuit Court of Appeals
The National Partnership for Women & Families strongly opposes the nomination of Texas Supreme
Court Justice Priscilla Owen to the U.S. Court of Appeals for the Fifth Circuit. Justice Owen, whose
nomination previously was rejected by the Senate Judiciary Committee, has demonstrated a troubling
pattern of hostility toward reproductive rights, civil rights, worker rights, and plaintiffs while on the
Texas Supreme Court. Her elevation to the Fifth Circuit would put many of these critical rights and
protections at risk. We urge the United States Senate to reject Justice Owen’s nomination.
A Record of Support for Restricting Reproductive Rights
Justice Owen consistently has favored restricting or denying access to reproductive health care services.
In particular, she has been unsupportive of young women seeking judicial assistance – often called a judicial
bypass – to have access to an abortion, offering overly narrow interpretations of Texas’ parental consent
law.1 She has disregarded the need for the judicial assistance authorized under the law, even
when necessary to help plaintiffs avoid abusive situations, or when health risks were at issue.
e In one particularly disturbing example, Justice Owen trivialized a young woman’s assertion that
her alcoholic father, who physically abused his wife, would physically or emotionally abuse her if
he learned she was pregnant.2 In a separate case, Justice Owen was not persuaded that a past
incident of a father striking his daughter constituted evidence of potential for physical abuse to
justify judicial bypass.3
e In another case, the young woman’s pregnancy was approaching the date at which she would
have to undergo a more complicated procedure. Justice Owen criticized the majority for
expediting their decision in the case to ensure the availability of the safest abortion procedure.4
e Justice Owen’s attempts to legislate from the bench to make parental notification laws more
restrictive once even earned her a reprimand from Attorney General (then Texas Supreme Court
Justice) Alberto Gonzales. Though he now claims that Owen is “superbly qualified,”5 Gonzales
sharply criticized Owen and two other dissenters in 2000, claiming their opinions regarding parental
notification represented “an unconscionable act of judicial activism.”6
Only after her nomination to the Fifth Circuit did Justice Owen vote in favor of a judicial bypass.7 Her
restrictive views, if applied more broadly, would only exacerbate the desperation facing many young
1
Under the Texas Parental Notification Act, a court may allow a minor to have an abortion without first telling a
parent if the girl is mature and sufficiently well-informed to do so; if parental notification is not in her best interest;
or if parental notification may lead to physical, sexual or emotional abuse. Tex. Family Code § 33.001 et seq.
2
In re Jane Doe 3, 19 S.W.3d 300 (Tex. 2000).
3
In re Jane Doe 2, 19 S.W.3d 278 (Tex. 2000).
4
In re Jane Doe 1(II), 19 S.W.3d 346, 377-79 (Tex. 2000).
5
Gonzales’s spokesperson downplayed Gonzales’s previous criticism as an “honest and legitimate different of how
to interpret a difficult and vague statute.” Amy Fagan, White House Defends Nominee, WASH. TIMES, April 6, 2002.
6
In re Jane Doe 1(II), 19 S.W.3d 346 (Tex. 2000) (Gonzales, J., concurring).
7
In one case, the trial court had so clearly failed to comply with the statute that the entire Texas Supreme Court
agreed to grant judicial bypass of parental notification. In re Jane Doe 10, 78 S.W.3d 338 (Tex. 2002). See Tex.
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women seeking safe and appropriate ways to end their pregnancies.8 Moreover, given the Fifth Circuit
Court of Appeals’ troubling record of opposing reproductive rights, her confirmation to the Fifth Circuit
will only further the Circuit’s anti-choice bias.
A Record of Favoring Big Business
Justice Owen is equally unsympathetic to claims brought by working individuals for injuries or
discrimination suffered on the job and to consumer lawsuits against deceptive merchants.
e In Quantum Chemical Corp. v. Toennies,9 Owen joined a dissenting opinion that would have
made it more difficult for employees to prove discrimination. Although the statute at issue barred age
as a basis for an employment decision, the dissent insisted that to be unlawful, age must be
the sole basis of the employment decision. The majority rejected the dissent’s approach and
instead concluded, consistent with the statute’s language, that age must only be a motivating
factor in the adverse employment decision.
e In Uniroyal Goodrich Tire Co. v. Martinez,10 an individual was seriously injured when the rim on
the tire he was mounting exploded. The tire company, which knew about the problem, did not use
a safer alternative product and only included a manufacturer’s warning that might have
prevented the man’s injury. The Texas Supreme Court affirmed the jury’s verdict for the injured
man, writing that the issue as to whether or not the manufacturer’s warning was sufficient was an
appropriate decision for a jury. Owen joined a dissent that criticized the majority’s ruling and
sided with the tire company.
e In Helena Chemical Co. v. Wilkins,11 farmers brought suit under Texas’ Deceptive Trade
Practices – Consumer Protection Act against a seed seller for making false promises about the
performance of a type of seed, and the jury found for the farmers and awarded them their lost
profits. The Texas Supreme Court affirmed. Justice Owen joined a dissent that claimed Texas
law barred the farmers’ claims of deceptive trade practices and breach of warranty. The majority
opinion criticized the dissent for ignoring the text of the law, noting, “the dissent glosses over the
section’s actual language.”
A Record of Overturning Jury Verdicts
Most courts avoid interfering with the role of juries. However, in several cases, Justice Owen has
supported overturning jury verdicts and instead finding in favor of corporate interests.
Fam. Code § 33.003(h) (specifying that “[i]f the court fails to rule on the application and issue written findings of
fact and conclusions of law within the period specified . . . the application is deemed to be granted and the physician
may perform the abortion as if the court had issued an order authorizing the minor to consent to the performance of
the abortion without notification under Section 33.002.”). In the other case, Justice Owen signed on to a unanimous
opinion reaffirming that an applicant’s bypass application had been granted by operation of Texas law because of
the trial court’s failure to follow § 33.003(h). In re Jane Doe 11, 92 S.W.3d 511 (Tex. 2002). Neither of these cases,
however, discount the restrictive views on reproductive rights evidenced in Justice Owen’s other opinions.
8
For other written decisions where Justice Owen supported denying judicial bypass, see, e.g., In re Jane Doe 4(I), 19
S.W.3d 322 (Tex. 2000); In re Jane Doe 4(II), 19 S.W.3d 337 (Tex. 2000) (second appeal of Jane Doe 4).
9
47 S.W.3d 473, 475 (Tex. 2001).
10
977 S.W.2d 328 (Tex. 1998).
11
47 S.W.3d 486 (Tex. 2001).
2