NAF TOOK A STAND/JUDICIAL NOMINEES/Janice Rogers Brown/NAF's Statement of Opposition

District of Columbia Circuit

National Abortion Federation Opposes the Nomination of Janice Rogers Brown to the Court of Appeals for the District of Columbia Circuit

The National Abortion Federation (NAF) opposes the re-nomination of California Supreme Court Justice Janice Rogers Brown to the District of Columbia Circuit of the United States Court of Appeals. The District of Columbia Circuit is widely perceived to be the most influential of the appellate courts and a stepping-stone to the United States Supreme Court. During her service on the California Supreme Court, Brown has become well known for her reactionary politics and conservative jurisprudence. The nomination of Brown to the District of Columbia Circuit presents a direct attack on the rights of women, especially their reproductive rights.

Janice Rogers Brown Has a Record of Opposition to a Woman's Right to Choose

In 1997, the California Supreme Court considered whether a statute that required parental consent before a minor could obtain an abortion conflicted with the California Constitution. California's constitution differs from the U.S. Constitution in that it contains specific provisions safeguarding individual privacy. The majority found that the law violated a minor's right to privacy under the state constitution. The decision incensed Brown, who wrote an unusually bitter dissent attacking the majority opinion.

In a clear departure from the California Constitution, which guarantees the right of privacy to "all people," Brown maintained that an unemancipated minor's privacy interests could not be equal to those of an adult. She even questioned whether pro-choice physicians were objective enough to determine whether a minor was able to give informed consent for an abortion. She went so far as to suggest that physicians were biased and motivated by profit rather than the welfare of their patients, relying on materials provided by the Christian Action Council (now called CareNet), an organization with a history of hostility to legal abortion.

Brown concluded by stating that the ruling would allow the courts "to topple every cultural icon, to dismiss all society values, and to become final arbiters of traditional morality."¹ Her language in this decision is characteristic of her legal writing. In other decisions, she has termed her colleagues' opinions to be "bizarre," "schizophrenic," and "lame."² Indeed, the California State Bar found her unqualified for the California Supreme Court.

Most recently, Brown dissented in a case which upheld the Women's Contraceptive Equity Act (WCEA) and its requirement that organizations like Catholic Charities provide health insurance coverage for prescription contraceptives.³ Brown broke from the majority which held that the WCEA's requirements applied neutrally and generally to all employers regardless of religious affiliation, except those covered by a narrow exception. The court also held that contrary to Catholic Charities' contentions, the WCEA did not discriminate against the Catholic Church.

Although her judicial opinions speak to Brown's animus towards reproductive rights, the California State Bar Association also found her unqualified for additional reasons. When considering her for the California Supreme Court, the California State Bar Association noted that she inserted personal views into her opinions and was insensitive to established precedent. Her record further indicates that she has not tempered her judicial approach.

Conclusion

Selection of such a controversial nominee for appointment to the most influential of appellate courts shows that the Bush Administration continues to ignore Americans' desire for an independent judiciary. In the past, conservatives have complained that the District of Columbia Circuit had too many judges, and have called for elimination of seats. However, given the opportunity to place such a conservative judge on so high a court, the opposition to the number of District of Columbia Circuit court judges has subsided. It is time for the administration to stop their efforts to pack the courts and nominate judges who can fairly adjudicate diverse matters including abortion. For these reasons, NAF opposes the nomination of Janice Rogers Brown to the DC Circuit Court of Appeals.

1. American Academy of Pediatrics v. Lungren, 16 Cal.4^th 307, 441 (Cal. 1997).
2. County of San Bernardino v. City of San Bernardino, 15 Cal.4^th 909, 940 (CA. 1997); People v. Mar, 28 Cal.4^th 1201 at 1231 (Cal. 2002).
3. Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4^th 527 (Cal. 2004).

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