ConfirmThem

By DanCT Posted in Circuit Courts — Comments () / Email this page » / Leave a comment »

The Texas parental notification case in which Justice Gonzales famously wrote "...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" was a highly contentious case in which Priscilla Owen proved to be an exemplary model of a prudent, restrained, and clear-thinking judge despite an incredibly contentious court and super-heated issue before the court.

The Law: Texas law (Texas Family Code, chapter 33) requires parental notification before minors are permitted to have an abortion. A bypass, though, may be granted by a court if the minor is "mature and sufficiently well informed to make the decision to have an abortion performed without notification to either of her parents."

Legislative intent on hearing the bypass: The author and sponsor of the law put together a team of nine senators and forty-seven representatives to submit a lengthy amicus brief to clarify the intent of the law. They wrote that:

[i.To establish 'maturity',] the evidence is to be weighed against the long-standing presumption that minors lack the experience, perspective, and judgment critical to making sound decisions, and the presumption that parents should be involved in all medical decisions for their children.

[ii. to establish that the minor is 'sufficiently well informed',] it is important that a minor be required to show that she has either received information from a disinterested and reliable healthcare provider who is not involved in abortion advocacy and does not stand to profit from any particular choice of the minor, or that she has received information from multiple sources, at least one of which expresses a preference for childbirth over abortion...[, and

iii.] Legislators were unanimous in their characterization of the bypass as "rare" or exceptional. The examples of cases involving use of the judicial bypass given by legislators during committee hearings or floor debate involved young girls facing dire circumstances.

The Supreme Court ruling: The lower courts ruled that she was not sufficiently well informed to warrant a bypass. The Supreme Court overturned them in a flash. The reasoning? "After reviewing the record, we determined that Doe conclusively established the statutory requirements and that she was entitled to consent to the procedure without notifying a parent." In particular, they determined that speaking with a couple of friends who were glad they had had abortions and with a doctor and counselor at Planned Parenthood was sufficient to establish that she was "well informed"---no need to discuss the issue with anyone who would express a preference for childbirth over abortion, and no need to discuss any details of adoption. The Court expressed a nervous self-consciousness about its determination:

Doe did not seek information or counseling from anyone who would be against her having an abortion,...but this Court held in Doe 1(I) that a minor is not required to seek information from any particular group or viewpoint so long as “she has obtained information on the relevant considerations from reliable sources of her choosing that enable her to make a thoughtful and informed decision.�

Hmmm...Let me get this right.The abortion doctor and Planned Parenthood counselor would bring up all the "relevant considerations" that she'd need to think about before being "well informed" in the eyes of the law? There's something fishy going on here, and something that the legislature tried to prevent (see ii. above), but there is just no stopping a Supreme Court intent on thwarting the legislature's will. But I digress...

The Court overruled lower courts' findings on the matter---Doe was well informed, and "conclusively" so! The law, though, requires that the minor also demonstrate a sufficient degree of maturity. "Never mind about that! We overturned the lower courts' findings that she was not well informed. Therefore, she is entitled to the judicial bypass. There is no need to think about the issue of maturity." Strange as it may sound, that parody really is the logic the Court employed:

Doe does not have the burden of proving in this Court that she is mature. That is because, as we explain below, a minor such as Doe, who is appealing the denial of her application under the first prong of the statute, only needs to conclusively refute the trial court’s actual findings.

So, the Court now explicitly argues that the minor does not need to meet the clear requirements of the law (i.e., "mature" + "well informed") before getting the judicial bypass. This is an extraordinary argument to make. The natural conclusion to reach is that anyone who applies for a bypass should be awarded one.

Indeed, the Court does go on to argue that girls should be given a bypass except in unusual circumstances:

Senator Shapiro described an attorney’s experience who works with Planned Parenthood in Nebraska representing minors who apply for a waiver under Nebraska’s similar bypass procedure: “in all of the years that she’s done this, one minor child, one, that was turned down, not only by the district court, but also by the court of appeals. And the reason this child was turned down was because she was 12 years old. Now that’s real world.� ...Senator Shapiro emphasized in Senate floor debate that, under the comparable Nebraska bypass procedure ...“ninety-nine percent� of bypasses had been granted.

This is what the Court wanted to do in Texas too and arrogantly threw down a challenge to the legisture: "If the Legislature, as a body, agrees with amici that we misunderstood their intent, it is the Legislature’s prerogative to amend the statute to give us different guidance."

Where Justice Gonzales comes down: Mr. Gonzales defends the liberal reading of law that turned the legislature's intent on its head. First, he defiantly states:

The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof. I respectfully submit that these are policy decisions for the Legislature. And I find nothing in this statute to directly show that the Legislature intended such a narrow construction.

...except that they did, and they clearly expressed so in their brief, which drew extensively on the debates in the legislature. In addition, contra Mr. Gonzales, the law really does explicitly and clearly call for a narrower interpretation than that rendered by the Court. In particular, in section 33.003(i) we read: "If the court finds that the minor is mature and sufficiently well informed...," then the court may grant a bypass. But, amazingly, the maturity issue was not considered in the Court's decision. Thus, the decision that Mr. Gonzales signed on to is far more liberal than a clear reading of the text would justify. From here he goes on to his (in)famous words: "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." I couldn't agree more--eliminating bypasses or reading extra ones into the law would be judicial activism. However, no one in dissent in this case has done anything of the sort! On the other hand, the six justices concurring in the decision have removed a hurdle that is clearly delineated in the statute, which, I would have to say, is an unconscionable act of judicial activism.

Priscilla Owen's dissent: In her dissent, Judge Owen points out the logical error in granting a bypass even though 'maturity' was not considered:

The Court says that a finding regarding maturity was not necessary to the judgment. The Court misunderstands the law. One basis on which a trial court may grant authorization for a minor to proceed with an abortion without notifying a parent is if she is mature and sufficiently well informed. Thus, there are two necessary elements to this ground for relief....Doe had the burden of establishing both elements of that ground fro [sic] proceeding with an abortion.

She then argues that there is considerable doubt about Doe's maturity. (NOTE: Her arguments casting doubt on Ms. Doe's maturity are well worth the read, but they are tangential and not reproduced here.)

However, her most devastating point was that:

Rather than conduct an appellate review to determine if there was evidence to support the lower courts’ determination, this Court has usurped the role of the trial court, reweighed the evidence, and drawn its own conclusions.

She argues eloquently and correctly that the role of the Supreme Court in this case is to defer to the lower courts unless compelled otherwise by the evidence:

In order for the Court to reverse and render judgment in her favor, it must examine the record to determine if there is any evidence that supports the trial court’s failure to find that Doe was sufficiently well informed...The evidence must be such that reasonable minds can draw only one conclusion. See Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978). ...Although this is a close case, there is some evidence from which a trial court could reasonably conclude that Doe was not sufficiently well informed to make the decision to have an abortion without notification of a parent.

In other words, although lower court decisions could have gone either way, the Supreme Court would not be justified in overturning the lower courts unless the lower courts were grossly in error and had no reasonable evidence to base their decision on. Admirably, she rose above the emotional tumultuousness and highly-charged political nature of the abortion issue and argued the profoundly conservative point that the lower courts should be treated with deference and not overturned willy-nilly. This is the exact opposite of a judicial activist and is characteristic of someone who deeply considers the proper role of the court in all its relations--a true judicial conservative (as opposed to a right wing activist).

There is something deeply unsettling about how fervently the majority of the court pursued this case, chasing down any piece of chaff in the wind that could help undermine the parental notification law, while overlooking the clear intent of the legislature (as described in the amicus and the legislative debates), the clear wording of the statute ("mature and well informed"), and the proper role of the Supreme Court in deciding this kind of appeal. Through her dissent, Priscilla Owen showed tremendous restraint, a cool head, and a sharp mind. She is a great nominee.

Another worrisome note from Gonzales:The three dissenting justices all expressed concern over the blatant judicial activism and apparent eagerness to overturn the lower courts. In response to the criticism, Justice Gonzales wrote:

It has been suggested that the Court’s decisions are motivated by personal ideology. ...To the contrary, every member of this Court agrees that the duty of a judge is to follow the law as written by the Legislature. ...Our role as judges requires that we put aside our own personal views of what we might like to see enacted, and instead do our best to discern what the Legislature actually intended. ...We take the words of the statute as the surest guide to legislative intent. ...Once we discern the Legislature’s intent we must put it into effect, even if we ourselves might have made different policy choices.

Dan's paraphrase: "It's just not true that we are judicial activists. Judges are supposed to put aside personal views to discern legislative intent; we are judges; therefore, we aren't judicial activists." Is he arguing that judicial activism doesn't exist, or just that the Texas Supreme court is free from it? In either case, it is unsettling that this man may be on George Bush's short list for a SCOTUS nomination. Priscilla Owen all the way!