| In re Jane Doe, 19 S.W.3d 346 (Tex. 2000) (Doe 1(II)) In a previous appeal by the minor in this case, In re Jane Doe, 19 S.W.3d 249 (Tex. 2000) (Doe 1 (I)), the Texas Supreme Court was given its first opportunity to consider the statutory requirements for a judicial bypass under the state's Parental Notification Act. In its opinion in that case, the Court set out the factual showing that a minor must make in order to satisfy the statutory bypass requirement that she be "sufficiently well informed" to have an abortion without parental notification, as well as the considerations bearing upon a determination as to whether the minor is "mature." Because the lower courts had denied the minor's application for a bypass, the Supreme Court remanded the case to the trial court for "further hearing and consideration" in light of the standards set out by the Supreme Court. 19 S.W.3d at 257. Owen had concurred in the Court's judgment, although not in the Court's explanation of the showing that a minor must make under the bypass provision. Indeed, she specifically criticized the standards adopted by the Court, claiming that they were "minimal" and likely to be met by "[m]ost minors . . . with the assistance of counsel." 19 S.W.3d at 260. Bush appointees Gonzales, Baker, and Hankinson joined the Court majority in the adoption of those standards. On remand, the lower courts again denied the minor's application for a bypass. In a 6-3 ruling, with Owen writing one of the dissents, the Texas Supreme Court reversed, holding that the minor had "conclusively established the statutory requirements to obtain a judicial bypass." 19 S.W.3d at 361. Owen's dissent focused in particular on her view that the minor was not adequately informed about abortion alternatives. Owen was extremely critical of the majority, which she accused of acting "irresponsibly" and of "manufactur[ing] reasons to justify its action." 19 S.W.3d at 383, 379. She further asserted that "[t]he Court's actions raise disturbing questions about its commitment to the rule of law and to the process that is fundamental to the public's trust in the judiciary." Id. at 377. The Court, however, explained that Owen's view contradicted the legislature's judgment in enacting the statute. While the legislature could have required that a minor be "fully informed" in order to make a decision to terminate her pregnancy without parental notification, the majority explained, it chose instead to require that a minor be "sufficiently well informed." 19 S.W.3d at 352 (emphasis in original). The Court further observed that "[t]he Legislature had before it -- but rejected -- at least one bill that would have required physicians to supply specified, detailed information about abortion procedures and alternatives to all women, including minors, in order to obtain their informed consent." Id. (citations omitted). The Court also noted that the fact that "a minor does not share the court's views about what the benefits of her alternatives might be does not mean that she has not thoughtfully considered her options or acquired sufficient information about them." Id. at 359. Particularly in view of the dissents by Owen and others, the Court's opinion is notable for containing specific sections devoted to "the proper role of judges" and "respecting the rule of law." Indeed, at the outset of its opinion, the Court observed that "[a]bortion is a highly-charged issue" and that the role of "the judicial branch [is] to independently review and dispassionately interpret legislation in accordance with the Legislature's will as expressed in the statute." 19 S.W.3d at 349. In light of the dissents, the majority pointedly cited Felix Frankfurter's explanation of "'the function [of a court] in construing a statute'" as "'ascertaining the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. . . A judge must not rewrite a statute, neither to enlarge nor to contract it.'" 19 S.W.3d at 350 (citation omitted)(emphasis added). The majority noted that in deciding this case they had "put aside [their] personal viewpoints." Id. They expressly stated that while "judges' personal views [on abortion] may inspire inflammatory and irresponsible rhetoric," the "highly-charged nature" of the abortion issue "does not excuse judges who impose their own personal convictions into what must be a strictly legal inquiry. . . As judges, we cannot ignore the statute or the record before us. Whatever our personal feelings may be, we must 'respect the rule of law.'" Id. at 356. (emphasis added). Justice Gonzales, a Bush appointee, not only joined the Court's opinion in its entirety but wrote a separate concurrence in which he criticized the dissenting opinions for suggesting a "narrow construction" of the bypass provision nowhere to be found in the statute, and one "directly contradict[ed]" by legislative history. 19 S.W.3d at 365-66. According to Gonzales, adopting the dissenters' narrow view "would be an unconscionable act of judicial activism." Id. at 366 (emphasis added). In addition to Justice Gonzales, Bush appointees Baker and Hankinson were in the majority. In re Jane Doe 3, 19 S.W.3d 300 (Tex. 2000) This case also involved a minor seeking an abortion who had applied for a judicial bypass of parental notification pursuant to Texas Family Code §33.003. The trial court denied the minor's application and the court of appeals affirmed. In a per curiam ruling joined by six members of the Court, the Texas Supreme Court set aside the judgment and remanded the case to the trial court for further proceedings. In so ordering, the Court noted that "the hearing in the trial court had occurred on the second business day after this Court issued its decision in In re Jane Doe, 19 S.W.3d 249 (Tex. 2000) (Doe 1)," 19 S.W.3d at 300-01, the seminal case in which the state Supreme Court set out the standards governing a bypass application under the "mature and sufficiently well informed" exception to the parental notification requirement. See supra. According to Justice Gonzales, who agreed with the decision to remand the case, "there is no principled basis in matters of this nature" for not permitting the minor to have the opportunity to present her case "with the benefit of the construction of [the Parental Notification Act] by the highest court in this state," while allowing that opportunity to minors in subsequent cases when the lower courts would have the opportunity to apply the decision in Doe 1. 19 S.W.3d at 306. Nevertheless, Justice Owen dissented from the Court's ruling remanding the case. In his decision concurring in the judgment, Justice Gonzales specifically criticized Owen's dissent as to the remand, stating that:
19 S.W.3d at 306 (emphasis added). One of the issues on appeal was whether the trial court had properly denied the minor's application for a bypass under the provision of the statute mandating a bypass when the minor establishes by a preponderance of the evidence that parental notification "may lead to physical, sexual, or emotional abuse of the minor." Tex. Fam. Code §33.003(i). Although Justice Owen was not in the minority on that issue, her opinion took a stringent view of what a minor must prove under the "emotional abuse" provision, staking out a position more extreme than that of most of her colleagues. The minor had testified that her father was "an alcoholic, that in the past he has gotten intoxicated, overreacted, and taken anger over the children out on her mother and 'become physical' with her mother." 19 S.W.3d at 307. She further testified that she did not want to inform her mother about her decision to have an abortion because "her mother would tell her father and her father would become angry and physically take it out on her mother." 19 S.W.3d at 308. This was insufficient for Owen, who stated that "the evidence of physical abuse of Jane Doe's mother was not so direct, clear, and positive that a trial court was required to conclude as a matter of law that if one of Jane Doe's parents were notified, then Jane Doe may be emotionally abused." 19 S.W.3d at 320. Four justices disagreed, noting that, under the express terms of the statute, a judicial bypass "shall" be granted when the minor shows that parental notification "may lead" to her emotional abuse. 19 S.W.3d at 306 (emphasis in original). Moreover, these justices were expressly critical of the severe standard of proof that Owen would have required:
19 S.W.3d at 307. In addition to Justice Gonzales, Bush appointees Baker and Hankinson were in the six-justice majority that ordered the case remanded for further proceedings. Baker and Hankinson were among the group of four justices who would have held that the minor had satisfied her burden of proof under the "emotional abuse" provision and should have been granted a bypass. In re Jane Doe 4, 19 S.W.3d 322 (Tex. 2000) Like the prior cases, this one also involved a minor's appeal from the lower courts' denial of her application for a judicial bypass so that she could obtain an abortion without parental notification. In a 6-3 ruling, with Owen writing a dissent, the Texas Supreme Court ordered that the lower court judgments be vacated and the case remanded to the trial court for another hearing in light of Doe 1 (above), which was issued the same day as the minor's hearing in this case, and a subsequent decision, In re Jane Doe 2, 19 S.W.3d 278 (Tex. 2000). Although the Court concluded that the minor had failed to demonstrate her entitlement to a bypass, the Court held that "[n]either the minor nor the trial court should be deprived of our clarification of the law in these cases merely because the hearing occurred before the trial court, the minor, or her lawyer were aware of this Court's holdings." 19 S.W.3d at 327. Owen, however, would have denied the minor even the opportunity to present her case with the benefit of the Court's decisions in Doe 1 and Doe 2. Bush appointees Gonzales, Baker and Hankinson were in the majority. -- Source |
because giving the other side this bone will smooth the way for appointing decent supremes?
1. I see NO evidence that Gonzalez is not pro-life.
2. I see many folks who have been waiting to come back out of the woodwork and attack the President for reasons that most likely have nothing to do with this appointment.
3. I see a President who has done many, many things in four short years to reduce the number of abortions, and to return value to the unborn and weak, and create in this country a culture of LIFE.
4. I am praising the Lord for the victory of this pro-LIFE President and the progress that will be made in the coming years because a man of God is in the White House.
5. I am urging his critics here to pray for him that God would continue to guide his steps, and give him the wisdom that he seeks to make decisions that are pleasing to HIM.
The American Life League wants an activist in judicial garb, they are wrong.
If we had less judicial activist, we'd be better off as a nation.
Being open minded I post this:
http://www.worldnetdaily.com/news/printer-friendly.asp?ARTICLE_ID=41386
Wednesday, November 10, 2004
Well , he did that last time and caught hell for it.
What is a judicial bypass in Texas?
The minor is mature and sufficiently well informed
about her pregnancy options to make the decision
without a parent or legal guardian being involved.
It is not in the minor’s best interest for the parent or
legal guardian to be notified.
Notification of a parent or legal guardian could lead
to physical, sexual or emotional abuse of the minor .
Tex. Fam. Code § 33.003(i). For a good overview of the Texas Family Code, Chapter 33 you may want to visit this site: http://www.supreme.courts.state.tx.us/rules/pnr/ch33.htm To download a copy of the application forms to print for use, click here for the version in Word Perfect or click here for the version in Microsoft Word.
(Note: You may receive a "Enter Network Password" message when trying to download these files. If this happens, simply select "Cancel" in the dialogue box, and the file will load)
Because it is a young law, the legal community has had to rely upon the majority opinions by the Texas Supreme Court for guidance. Thus far, twelve cases have been appealed to the Court, with six decisions released. You may want to read some of these decisions to understand why this new statute has become a controversial, challenging area of the law.
Jane Doe 1(I), No. 00-190, 19 S.W.3d 249 (Tex. Feb. 25, 2000); No. 00-224, 19 S.W.3d 300 (Mar. 10, 2000) (Hecht, J. dissenting from order reversing the court of appeals after remand); Jane Doe 1(II), No. 00-224, 19 S.W.3d 346 (Jun. 22, 2000)
Jane Doe 2, No. 00191, 19 S.W.3d 278 (Mar. 7, 2000)
Jane Doe 3, No. 00-193, 19 S.W.3d 300 (Mar. 10, 2000)
Jane Doe 4(I), No. 00-213, 19 S.W.3d 322 (Mar. 22, 2000); Jane Doe 4(II), No. 00-317, 19 S.W.3d 337 (Apr. 11, 2000)
Jane Doe 10 , 78 S.W. 3d 338 (April 19, 2002).
Jane Doe XI, No. 02-0933, 2002 92 S.W.3d 511 (Tex. Oct. 10, 2002
It is important when studying these decisions, that you know that the majority opinions are the ones that attorneys rely upon to interpret the expectations of the trial courts in considering judicial bypass applications. You should be able to read these opinions by viewing this site: http://www.supreme.courts.tx.us.
To read a summary of the interpretations of the provisions of Texas Family Code, Chapter 33 by the Texas Supreme Court, click here.
To read a summary of the history of the legal history that allows for judicial bypass of parental involvement laws in the United States, click here.
For attorneys, we also suggest you take the opportunity to read the recent South Texas Law Review article: "A Guide to Proceedings under the Texas Parental Notification Statutes and Rules" Vol.41:755 2000.
To download an updated copy of “Texas Parental Notification Rules and Forms” which discuss application, trail and appellate procedures,
click here for the version in Word Perfect or
click here for the version in Microsoft Word.
(Note: You may receive a "Enter Network Password" message when trying to download these files. If this happens, simply select "Cancel" in the dialogue box, and the file will load)
Click here to view and print a worksheet of questions a teenager applying for judicial bypass can use to be prepared for the hearing. It is available in English and Spanish.
Texas Supreme Court Undermines Parental Notification Law
It appears that the Texas law requiring that parents be notified prior to the performance of an abortion on a minor is being virtually nullified by the Texas Supreme Court.
On March 22, in a 6-3 decision, the Texas Supreme Court vacated a decision by an appellate court upholding a district court ruling that a 17 year-old girl is not mature enough to make an abortion decision without notifying her parents. The court said that the district court ruling occurred prior to the establishment by the Supreme Court of new guidelines that must be used to determine whether a minor can "bypass" parental notification. The majority ordered the lower court to reconsider their decision in light of the following new guidelines: 1) the girl’s emotional or physical needs; 2) the possibility of emotional or physical danger to the minor; 3) the stability of her home and whether notification "would cause serious and lasting harm to the family structure;" and 4) the effect of notification on the girl’s relationship with her parents.
Four cases in which girls were denied a judicial bypass have reached the Texas Supreme Court. In each case, the girl was granted a second hearing before a district judge. In one additional case, according to The Houston Chronicle, 3/22/00, the high court gave another girl outright permission to have an abortion without her parents being notified.
Justice Nathan Hecht, who, along with Justice Greg Abbott, dissented from the ruling in which the new guidelines were issued, wrote a sharply dissenting opinion in the latest case. "Five or six justices in an Austin courthouse are ensuring that minors throughout the state, sight unseen, can obtain abortions without telling their parents," Judge Hecht wrote. "For the fifth time in less than a month the Court sets aside the denial of a minor’s application to have an abortion without telling her parents. The Court’s decisions are contrary to the legislature’s purposes in enacting the Parental Notification Act. In this case the Court holds that a minor need not tell her parents that she wants an abortion if she fears they may disapprove. The legislature did not set this low a standard for excluding parents from their children’s lives."
Joining Justice Hecht in the dissent were Justices Priscilla Owen and Greg Abbott, who was appointed to the bench by Governor Bush. (In Texas judges are elected. The Governor may fill a vacancy with an appointee to fill the unexpired term.) Justice Owen, in a separate dissent said, "The minor fell far short of meeting the statutory exceptions that would allow her to have an abortion without notifying either of her parents and this case should not have been remanded. Additionally, the statute does not authorize a court in the ‘best interest’ of a minor to withhold information from a parent in order to avoid parental disapproval even if that disapproval is withdrawal of support when the child becomes an adult." "A minor could simply sign an affidavit, send it to a court, and her application would be granted . . . . That is not what the Legislature intended," Justice Owen said.
All nine members of the Texas Supreme Court are Republicans. The majority of the court — led by Chief Justice Tom Phillips and joined by Justices Craig Enoch, James A. Baker, Deborah Hankinson, Harriet O’Neill and Alberto Gonzales — said the girl’s emotional well-being and the long-term family relationship needed to be considered.
Justice Hecht accused the majority, three of whom — Baker, Gonzales, and Hankinson — were appointed by Bush to fill vacancies, of exhibiting judicial activism and re-writing the Parental Notification Act and said that the majority’s decision is unprecedented and proof of "ideological motivations."
A legal consultant to RNC/Life told us today that what is happening in Texas is unheard of in American jurisprudence. It is now possible for one side (a minor daughter) to petition a court to deprive another party (the parents) of their rights to protect the health and welfare of their child, without their knowledge and in complete secrecy.
Governor Bush signed the Parental Notification Act into law, and refers to it frequently when addressing pro-life audiences on the campaign trail. However, when it was passed last year, he went along with the curious provision that assigned to the Supreme Court the authority to write the guidelines rather than spelling them out in the legislation. Bush told the Houston Chronicle through a spokeswoman, Linda Edwards, that he would support changing or strengthening the law, if necessary, to carry out his intent of reducing abortions in Texas and involving parents in their daughter’s decisions. It appears those changes will be necessary. The fact remains that, at the end of the day, it is the makeup of the court that will determine the outcome of how the law is applied.
Joe Kral, legislative director for Texas Right to Life, said his organization believes that the Supreme Court "is trying to dumb-down this legislation." He said the court is watering down the law and accomplishing what pro-abortion supporters were unable to do during the last legislative session. "I firmly believe that this is a good thing that we can elect our Supreme Court," Mr. Kral said. "I expect this to be a campaign issue." The Dallas Morning News, 3/23/00.
Texas Right to Life and its parent organization National Right to Life Committee have thrown their wholehearted support behind George W. Bush in his quest for the presidency, despite his refusal to commit to nominating pro-life judges. But, unlike the citizens of Texas, the American people cannot elect the U.S. Supreme Court, and are dependent upon the judgment of the President and the advice and consent of the U.S. Senate (which has confirmed all President Clinton’s liberal nominees) except one. Shouldn’t pro-life leaders and voters make the selection of federal and Supreme Court judges a campaign issue for Bush as well?
At this point, we know what Gore will do — he will impose a pro-abortion requirement for judicial nominees. As for George W. Bush, unless he makes a pro-life commitment, voters can only speculate that his appointees to the highest court in the land will mirror those he has put on the Texas Supreme Court.
Answer: PC trumps pro-life every time.
No, I cannot vote for a Democrat, but I do vote in primaries. If Bush backs someone, I won't. If bush's candidate is the party nominee, I won't vote for that person. If there is a Pro Life third party, I vote that way. If Bush does the right thing NOW, we don't have a need to retaliate later.
I thought National Security was the most important issue. It is for the President, he has never said anything to the contrary. Who cares if the AG is pro or choice . WHO CARES?
When will it occur to good and decent pro-life people that the right of a woman to be secure in her person is violated by a rapist and the spawn that may be created by that involuntary act, and that the right of a person to be secure in her person from an unreasonable seizure is guaranteed by the Constitution? When talking about the right of an unborn person to life, we must take into account the rights of the mother to be free from having to tolerate the seizure of her person by another person. She must be allowed to end the seizure, if she wants to, but the baby must be allowed to live, if it can. Governmentally protectable life begins at the point of independence from the body of another soveriegn person.
What scares me is that the democrats LIKE Gonzales and Hated Ashcroft. That tells me something.
  November 12, 2004Choice of Gonzales May Blaze a Trail for the High CourtBy ELISABETH BUMILLER and NEIL A. LEWIS
These Republicans said Mr. Gonzales had been widely viewed as one of President Bush's top choices for the court. But by first sending him to the Justice Department, they said, Mr. Bush could then nominate a conservative favored by his political base to fill the first vacancy that arises. For Mr. Gonzales, tenure as attorney general would allow him to demonstrate his reliability to conservative leaders, many of whom say they are unsure of his views on issues like abortion and affirmative action, Republicans said. One Republican said Mr. Gonzales's nomination hearings in Congress would also "get out of the way'' the debate over legal memorandums that Mr. Gonzales supervised as White House counsel. Civil rights groups say memorandums about the treatment of captured terrorism suspects appeared to endorse the torture of some prisoners and opened the door to abuses at the Abu Ghraib prison in Iraq. The strategy, which Republicans said was in large part the work of Karl Rove, the president's chief political adviser, would clear the way for Mr. Bush to make his first nomination to the Supreme Court a trusted conservative, thus showing gratitude to his political base for the large role they played in giving him a second term. "It's a thank you to the right for the election,'' said one Republican adviser to the White House. "And they think they need to strike now in the post-election glow.'' The theory, the Republican said, is that Mr. Bush will be at the apex of his power at the beginning of the second term, and in a strong position to battle Democrats in any Supreme Court confirmation fight. "So you do the toughest nominee first,'' the Republican said. Presidents over the years have parked future candidates for the Supreme Court in other positions in order to bolster their résumés and improve their chances. Most often, however, potential nominees are first parked on federal appeals courts, the level just below the Supreme Court, not as attorneys general. Friends of Mr. Gonzales also say that if he is not put up later for the Supreme Court, the Justice Department is hardly a consolation prize, given that he has long desired to become the nation's first Hispanic attorney general. Even so, the post has also proved to be a perilous one and has at times harmed careers, as in the case of Janet Reno's difficult experiences with the Branch Davidian conflagration in Waco, Tex., and her return of a young boy in Florida, Elián González, to relatives in Cuba. Mr. Gonzales's appointment, Republicans said, reflected Mr. Bush's speed in moving to announce major personnel changes for his second term. They said the president's goal was to have all new appointments in place before Thanksgiving so that he can move quickly on his agenda after the inauguration in January. For now, however, some of the most prominent members of the administration are remaining in place. Republicans outside the administration as well as White House officials said Condoleezza Rice, the national security adviser, would stay in her job, at least for now, although she is widely said to be interested in succeeding Donald H. Rumsfeld as defense secretary. But Mr. Rumsfeld, Republicans said, wants to stay for the immediate future, if only to put the Abu Ghraib prison scandal well behind him. There is also a consensus emerging in Republican and diplomatic circles that Secretary of State Colin L. Powell will stay on into 2005 because of the international crises coming to a head - the difficulty of holding Iraqi elections scheduled for late January, impending showdowns with Iran and North Korea over their nuclear programs and negotiations in the Middle East after the death of Yasir Arafat. The United States may be more involved in working toward a settlement between the Israelis and Palestinians after Mr. Arafat's death, and Mr. Powell is thought to be eager to put his mark on the dealings, Republicans said. If and when Mr. Powell does step down, Ms. Rice is being mentioned as a possible successor to him as well. If Ms. Rice does move to the State Department, her deputy, Stephen J. Hadley, is a leading candidate to become national security adviser. Mr. Gonzales's impending move to the Justice Department means that he is no longer the front-runner for the first vacancy on the Supreme Court, which may become open because of the illness of Chief Justice William H. Rehnquist, 80, who has thyroid cancer. There has been no indication by the chief justice's office of when, or whether, he will return to the bench. Conservatives said on Thursday that a leading candidate for the first nomination to the Supreme Court was Judge J. Harvie Wilkinson III, who sits on the federal appeals court in Richmond. He was a protégé of the late Justice Lewis F. Powell, who was widely admired. Although Judge Wilkinson is opposed to abortion, he may be palatable to some Democrats because of his strong environmental and First Amendment record. Another leading candidate is Judge J. Michael Luttig, 50, who sits on the same court as Judge Wilkinson. Judge Luttig's relative youth would also make him attractive to Republicans, who tend to prefer younger candidates who will have longer careers and thus more influence. Other possible nominees include Judge Edith H. Jones, a federal appeals court judge, and Larry D. Thompson, a former deputy attorney general who is now the general counsel of Pepsico in Purchase, N.Y. Several Republicans said no decision had been made on filling Mr. Gonzales's position as White House counsel, although Brett M. Kavanaugh, a former associate counsel who has since been promoted to staff secretary to the president, is a strong candidate. Two officials said Mr. Kavanaugh had won Mr. Bush's confidence. "The president thinks he's great,'' said one Republican familiar with the White House operations. "He trusts him and really likes having him around to rely on.'' If chosen as White House counsel, Mr. Kavanaugh would not have to undergo a Senate confirmation. Earlier this year, he was nominated for a seat on the federal appeals court based in Washington and was batted around by Democrats in a confirmation hearing. Mr. Kavanaugh was criticized by Democrats for playing a principal role in the White House effort to nominate prominent conservatives to the nation's appeals courts and for his role in the Whitewater investigation of President Bill Clinton. Other candidates include David Leach, the deputy White House counsel, and Harriet Miers, the deputy chief of staff. |
ASHINGTON, Nov. 11 - Republicans close to the White House said on Thursday that the choice of Alberto R. Gonzales as attorney general was part of a political strategy to bolster Mr. Gonzales's credentials with conservatives and position him for a possible Supreme Court appointment.