FLASHBACK: June 4, 2001Al Gonzales and Jane Doe

[Editor’s Note: This article first appeared in the June 4, 2001 issue of Human Events.]

Baby Doe was conceived the first week of December 1999.  Fifteen weeks later, it is believed, she was killed in a second trimester abortion arranged by Planned Parenthood.  This tragedy may have been averted if five justices of the Texas Supreme Court had not issued an order allowing the baby’s teenage mother to secure an abortion without first telling one of her parents.

Al Gonzales was one of the justices who signed that order.

Now, Gonzales serves as White House counsel to President Bush.  The hot rumor in Washington these days is that Bush might choose Gonzales to fill the first vacancy that opens on the U.S. Supreme Court.

Such a move would be an uncharacteristic blunder for Bush–and could permanently mar his presidency.

To be sure, there are compelling political reasons for Bush to nominate Gonzales.  He is a longtime colleague and friend.  He would be the first Latino ever nominated to the U.S. Supreme Court.  And like Clarence Thomas before him, his personal story (a son of migrant laborers who worked his way up through Harvard Law School) would evoke exactly the sort of colorblind vision of the American Dream that conservatives should endorse and promote.

But an even more compelling consideration ought to prevent Gonzales’ nomination.

In the process of approving Baby Doe’s abortion, Gonzales demonstrated that he is a judicial activist of the worst sort.  His life story may recall Clarence Thomas, but his judicial mindset recalls David Souter.

The identity of Baby Doe’s mother and the record of her two hearings in a Texas trial court are sealed by Texas law.  Although this baby was examined by her mother and by a nurse in a sonogram conducted when she was 11 weeks old, it is not publicly known whether Baby Doe was indeed a girl or a boy–or whether she was ever given a name.  It is only for convenience that I refer to her in this story as a little girl and call her Baby Doe.  She may well have been a little boy.

But there is no doubt that Baby Doe was a human child, and that at 15 weeks she was alive and well in her mother’s womb.

The story of this baby’s short life can be pieced together from evidence that emerged as the case was reviewed and debated in eleven different concurring and dissenting opinions issued by members of the Texas Supreme Court in two separate cases.

Baby Doe’s father was a 19-year-old college student.  Her mother, Jane Doe, as the court called her, was a 17-year-old high school senior.

Ms. Doe was the product of precisely the sort of American household most likely to be supportive of George Bush.  Her parents were active members of their church, outspokenly pro-life, at least somewhat affluent, and inclined to be generous, if not indulgent, with their 17-year-old daughter.

At the same time Jane Doe was seeking a court order to get an abortion without notifying these parents, she was driving around in a new car they had just bought her.  She was planning to use that car the next year when she went to college–where she expected her parents to cover her tuition and her living expenses.

But just before Christmas 1999, Doe realized she was pregnant.  And although she did not want to tell her parents, she did not keep it a secret, either.

Doe told the college boy who had impregnated her–who advised her to have an abortion.  She told a female relative who had had her own abortion.  She told her home economics teacher, who said it would “not be a problem” if she had an abortion.  She told a teenage friend who was happy about her own teenage abortion.  And she told two other teenagers who were unhappy because they had become pregnant and not chosen to undergo abortions.

Toward the end of January 2000, Doe showed up at a Planned Parenthood clinic.  She talked to an unlicensed counselor about getting an abortion and was given Planned Parenthood literature about the abortion decision.

This is where the courts came in:  On June 7, 1999, then-Gov. Bush had signed a parental notification law sponsored in the Texas legislature by Sen. Florence Shapiro and Rep. Dianne White Delisi.  “The measure I’ve signed makes a simple, urgent point,” said Bush.  “When a child is in crisis, parents should have a role and a voice.  They should be the first to help, not the last to know.  This law both respects families and protects life.”

Judicial Activism

The sponsors of the law had been careful to craft it so it conformed with restrictions the U.S. Supreme Court had placed on such laws.  In the 1979 case of Bellotti v. Baird (Bellotti II), a plurality of the Supreme Court ruled that a parental consent bill could be constitutional so long as it allowed a judicial bypass for a teenage girl who could demonstrate “either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests.”

Later, in City of Akron v. Akron Center for Reproductive Health, Inc. (II) a majority of the Supreme Court affirmed the Bellotti rule for parental consent laws.  The court did not rule directly on whether a judicial bypass was required for state parental notification laws–as opposed to parental consent laws–but, since the Bellotti II ruling struck down a provision that required parental notification when a minor went to court seeking to bypass a state’s consent law, it has been assumed that, if tested, the court would require a bypass for parental notification laws, too.

Accordingly, the sponsors of the Texas law followed the bypass rules in Bellotti II.  They would allow a teen to get an abortion without notifying a parent if she could show a judge she qualified for any of three exemptions: (1) that she was “mature and sufficiently well informed to make the decision to have an abortion performed without notification of either of her parents,” (2) that “notification would not be in the best interest of the minor,” or (3) that “notification may lead to physical, sexual, or emotional abuse of the minor.”

Shapiro, Delisi and 54 other sponsors of the Texas law later filed an amicus brief in the Texas Supreme Court, saying, “Legislators were unanimous in their characterization of the bypass as ‘rare’ or exceptional. … In House floor debate Representative Giddings gave the example of a mother who had agreed to require her daughter to have sex with the mother’s new husband.”

Jane Doe did not come from such a family.

But on Feb. 8, 2000, almost ten weeks pregnant, she showed up in a Texas court asking for a bypass.  She was “mature and sufficiently well informed,” she said, and thus need not tell her parents she planned to undergo an abortion.

The trial judge took her testimony, listened to her lawyer and a special guardian appointed by the court under the terms of the law, and denied her request.  A three-judge panel of appeals judges upheld the ruling.  On February 15, Jane Doe appealed to the Texas Supreme Court.

For ten days, the court issued no ruling.  Meanwhile, on February 19, Jane Doe underwent the sonogram.  Baby Doe, it confirmed, was now 11 weeks and one day old.

On February 25, Chief Justice Thomas R. Phillips published the opinion of the court.  Al Gonzales was the only associate justice who joined fully in the opinion.  It ruled that the trial judge and the appeals judges had made no error.  “We conclude that in this case, the minor has not met the statutory standard,” said the court.

But rather than send Doe to talk to her parents, the court remanded the case to the trial court so she could have a second try at a bypass.


Although the court would not admit it, its opinion essentially rewrote and narrowed the law the Texas legislature had enacted.  The court wanted the trial judge to rehear the case, and decide it again, in terms of the law as it was now interpreted by Phillips and Gonzales and four other justices.

How did the court alter the act?  By unnecessarily constricting the meaning of the phrase “mature and sufficiently well informed”–giving it a definition less conducive to pro-life outcomes than even the pro-choice majority of the U.S. Supreme Court would allow.

The opinion in which Gonzales joined said that a trial judge must find a minor “sufficiently well informed” if she showed only three things: (1) “that she has obtained information from a health-care provider about the health risks associated with abortion,” (2) “that she understands the alternatives to abortion and their implications,” and (3) “that she is aware of the emotional and psychological aspects of undergoing an abortion.”

The court admitted that a trial judge could properly employ his discretion in determining whether a minor was “mature.”  But while listing some obvious things that could not be used as evidence of immaturity (“a minor’s socio-economic status,” “the fact, standing alone, that the pregnant female is minor”), it did not limit its own future discretion in disallowing whatever factors trial judges did use to determine maturity.

The reasoning in this opinion came under heavy fire not only from two conservative dissenters–Justices Nathan Hecht and Greg Abbott (a Bush appointee)–but also from Justice Priscilla Owen, who actually concurred in part (agreeing with the standard of review applied, that the girl had not met the statutory standard for a bypass and in the need for a remand even though the trial court had committed no error).

“The court’s interpretation of ‘sufficiently well informed’ falls short of what the legislature had in mind,” wrote Owen.  “Most minors will, with the assistance of counsel, be able to meet the requirements set by the court, which are minimal.  The plain language of the Family Code and its historical backdrop require a more substantive showing.”

Owen then explained the U.S. Supreme Court precedents governing parental consent and notification laws, and pointed to a telling hole in the majority’s argument.  It had completely disregarded Planned Parenthood v. Casey, an important precedent on the meaning of informed consent in abortion law.

In Casey, argued Owen, the U.S. Supreme Court had said that states could enact regulations that compel women seeking abortions to confront the impact that abortion will have on the child in their womb.  How can a women be “well informed” about an abortion decision, she asked, if she is not well informed about what it is she is aborting?

“An informed appreciation of the emotional and psychological aspects of terminating a pregnancy includes an understanding of the impact the procedure will have on the fetus,” wrote Owen.  “As Justices O’Connor, Kennedy and Souter observed in Casey, failure to obtain a full understanding of this aspect of the procedure can lead to ‘devastating psychological consequences’ afterwards.”

Owen then quoted directly from the O’Connor-Kennedy-Souter opinion in Casey: “Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision.  In attempting to ensure that a woman apprehends the full consequences of her decision, the state furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

In his dissenting opinion, Hecht (joined by Abbott) revealed that the trial record showed that “Doe’s guardian asked her to get counseling at a crisis pregnancy center, and she made an appointment to do so, but she was unable to locate the office.”

“No one she spoke with,” wrote Hecht, “expressed any reservations about her having an abortion or about abortion in general.”

“With regard to alternatives to abortion,” wrote Owen, “Jane Doe exhibited only the most superficial consideration.”

But thanks to the opinion fully joined by Gonzales, which did not require teen age girls to think for even a moment about the life of the unborn they intended to abort, Jane Doe got another day in court to ask for permission to evade her parents, too.

Doe’s second hearing, on Feb. 29, 2000, lasted for “hours.”  A special witness, who had never met Doe, was brought in from Planned Parenthood to testify on the girl’s behalf.  The judge again ruled that Doe was not “sufficiently well informed” to consent to an abortion without telling a parent.  The appeals court again affirmed the judgment, and began preparing a written (though non-public) opinion supporting its ruling.

On March 8, two days shy of the last day of her 14th week of pregnancy, Jane Doe again appealed to the Texas Supreme Court.

The appeal arrived at the court via fax at about 7:00 p.m.  The 125 pages of transcript from the trial court arrived the next day, March 9.

On March 10, at close of business, the evening before Baby Doe began her 15th week of life, without even waiting to see the written opinion of the appeals court, five members of the court, including Gonzales, summarily reversed the judgment of the trial court and the appeals court and directly authorized Jane Doe’s abortion.  They did so without issuing their own written opinion or even a brief explanation of their reasoning.

The court maintained its silence on this ruling for more than three months.  Then, when Baby Doe was presumably long dead, it issued an opinion–an opinion in which Gonzales said he “fully join[ed],” while writing his own virtually meaningless and apologetic concurrence.

Justice Owen, who has since been nominated by President Bush to the federal Court of Appeals in New Orleans, penned a scorching dissent in which she accused the majority of acting “irresponsibly in this case by summarily rendering judgment without careful consideration of the record, by manufacturing reasons to support its actions, and by ignoring evidence that supports the trial court’s judgment.”

Sounding Like Mario Cuomo

“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 wrote.  “The court has forsaken any semblance of abiding by principles of appellate review.”

“But I dissent from far more than the judgment rendered in this particular appeal,” she said.  “I strongly dissent from the methods employed by the court in rendering that judgment.  The court summarily reversed the lower courts, without an opinion and without the opportunity for considered substantive deliberations.  Now that the court has, after the fact, issued an opinion, it has obliterated, with the stroke of the pen, more than 50 years of precedent regarding appellate review of a trial court’s findings.  The 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.”

On the question of whether Doe was sufficiently well informed, Owen said, “Doe said that she had received information about adoption or keeping her child from three sources other than a family member, the teenage father of her unborn child, and other teenage friends.  Those were (1) an unlicensed counselor at the clinic where she intended to have an abortion, (2) pamphlets that she was given at the clinic, and (3) her home economics teacher.”

On the question of whether Doe was mature, Owen said, “When asked why she did not want to tell either of her parents that she was pregnant and intended to have an abortion, Doe testified that it would upset them because they do not ‘believe in abortion.’  A pregnant minor’s desire not to upset her parents is not a basis for concluding as a matter of law that she is mature.  But more telling testimony is that Doe said that she feared that her parents would no longer provide financial assistance to her if they knew that she had an abortion.  She testified that she intended to tell them some day that she had an abortion ‘when she was ready.’  A reasonable inference from this testimony is that after Doe’s parents have paid most of her living, transportation, and education expenses over the next few years, she will tell them the truth, when there will be fewer consequences to face.  This is some evidence that Doe is not mature enough to accept responsibility for her actions or her future.”

In his own opinion, explaining why he authorized Jane Doe to abort without telling a parent, Al Gonzales said, “I agree that there is no evidence supporting the trial court’s finding that Jane Doe is not sufficiently well informed.  And I agree that the contrary position is established as a matter of law. … Based on the evidence of Doe’s maturity and knowledge, I conclude … I am compelled to grant Doe’s application.”

Unlike Owen, he cited no facts from the record to support his opinion.  But, he did say, “While the ramifications of such a law and the results of the court’s decision here may be personally troubling to me as a parent, it is my obligation as a judge to impartially apply the laws of this state without imposing my moral view on the decisions of the legislature.”

That, of course, doesn’t sound like Clarence Thomas.  It sounds like Mario Cuomo.