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.
"Judicial Activist Gonzales" is probably why President Bush appointed him to the AG position instead of the SCOTUS, and will save the slot for Priscilla Owen.
Gonzales will have to enforce current laws in his position as AG so there probably won't be much of a problem with he being in this position, let's hope.
What exactly did they base their decision on the maturity of the girl?
What does the law say?
Well, for one thing...in Texas the age of consent is 17, so it's absurd to argue that one can legally consent to having sex at the age of 17, but one is not mature enough to deal with the consequences of the act.
"Five or six justices in an Austin courthouse are ensuring that minors throughout the state, sight unseen, can obtain abortions without telling their parents,"
"Sight unseen"?
"On March 22, in a 6-3 decision, the Texas Supreme Court vacated a decision by an appellate court upholding a district court ruling "
Hardly "sight unseen."
"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."
The Legislature wrote into law the ability of a minor to seek "judicial bypass" of the Texas Parental Act, the only thing that the Judges are asked to consider is whether the individual's request for that "judicial bypass" pass muster under the letter of the law or not.
"The minor fell far short of meeting the statutory exceptions that would allow her to have an abortion without notifying either of her parents"
What exactly are those "statutory exceptions"?
"The court may grant her request if the minor is able to establish she is mature and sufficiently well informed to make the decision to have the abortion without telling her parent or guardian." -- Source
The young woman was A) sufficiently mature to pursue the matter in the Court system, and just shy of legal age, and B) was "sufficiently well informed to make the decision to have the abortion without telling her parent or guardian.
Gonzales is not only NOT an activist, but an excellent Judge, the activism was evident in the dissents where the entire argument was stated as "The legislature did not set this low a standard for excluding parents from their children’s lives."
An Judge interpreting what the legislature clearly said, and basing his opinion on what he believed they INTENDED to say.
Legislatures write laws, and laws are to be judged only against their specific, self-evident wording, and the specific, self-evident wording of the Constitution and nothing further.
Most definitely NOT on where a Judge considers that the Legislature has set the standard.
THAT is the essence of Judicial activism.