Priscilla Owen Was Right

When George Bush first ran for president, he said he would name "strict constructionists" to the Supreme Court, citing Antonin Scalia and Clarence Thomas as models.

Now, Attorney General Alberto Gonzales is being mentioned for a vacancy. But is he like Scalia and Thomas?

When In re Jane Doe, the first test of Texas’s parental notification law, came to the Texas Supreme Court in 2000, then-Justice Gonzales sided against then-Justice Priscilla Owen, whom Bush later named a federal appellate judge.

Doe, the 17-year-old daughter of pro-life parents, sought an abortion. The law required she first notify her parents unless she could secure a judicial bypass, which the law allowed if (among other reasons) she could demonstrate she was "mature and sufficiently well-informed" to make the decision without notifying them.

Doe explained to a judge: "Well, for me I feel if I were to have the child, my parents, they would be slightly upset to actually know that I became pregnant and they are very against abortion. … And I don’t favor the adoption. I know it could be done, but if I were to go nine months having this child, I would feel to keep it."

The judge decided she was not "sufficiently well-informed." An appeals court agreed. The majority of the Texas Supreme Court — including Gonzales — also agreed.

Yet, the court remanded Doe’s case for a second hearing, because, in determining she did not merit a bypass, the court also ruled on: the standard of review appellate courts should use in determining whether a trial court had ruled correctly on a bypass, and which factors trial courts should consider in determining whether a teenager was "mature and sufficiently well-informed." The majority decided to give Doe another chance under the new rules it had written in these areas.

In the first, the court said a "legal and factual sufficiency" standard applied: If there was evidence supporting the trial court’s judgment, an appeal should uphold it.

In the second, the court cited three questions the judge should weigh, including whether the teenager understood the health risks of abortion, whether "she has given thoughtful consideration to her alternatives, including adoption and keeping the child," and whether she is "aware of the emotional and psychological aspects" of abortion.

Justice Owen agreed with the standard of review, but argued the court set a lower hurdle for "sufficiently well-informed" than the legislature intended or the U.S. Supreme Court would allow.

Doe had a second hearing. The judge listened to her again and determined that under the new rules she still was not sufficiently well informed. The appeals court again agreed.

Now, the Texas Supreme Court majority, including Gonzales, disagreed. It ruled that Doe — entering her 15th week of pregnancy — could get an abortion without telling her parents.

Had Doe become "sufficiently well-informed" between the court’s two decisions? Did no evidence support the trial judge?

Then-Justice Greg Abbott, now Texas attorney general, argued in dissent that the court’s "analysis and conclusions depart from the true intent of the Legislature." He cited a brief filed by 56 Texas legislators, including the law’s sponsors. It said: "In order to achieve the legislative goal, it is important that a minor be required to show that she has received information from a disinterested and reliable healthcare provider who is not involved in abortion advocacy … or that she has received information from multiple sources, at least one of which expresses a preference for childbirth over abortion."

"Prior to the hearing on remand," Justice Nathan Hecht noted in dissent, "Doe returned to Planned Parenthood and spoke with an unlicensed counselor for about one-and-one-half hours and with a physician for about 15 minutes. … The only other person she talked with after the first hearing was a teacher at school who counsels pregnant students."

In a concurrence, Justice Gonzales wrote, "… there is no evidence supporting the trial court’s finding that Jane Doe was not sufficiently well informed."

Owen issued a scorching dissent. "Doe affirmatively avoided counseling from any source who might cause her to seriously examine her decision in a meaningful way, as notifying one of her parents may have caused her to do," she said.

"The question in this case is not whether this Court would have ruled differently when confronted with all the evidence that the trial court heard," said Owen. "The question is whether legally sufficient evidence supports the trial court’s judgment. The answer to this latter question is yes.

Longstanding principles of appellate review and our Texas Constitution do not permit this Court to substitute its judgment for that of the trial court and or to ignore the evidence, as it has done."

Would the next Scalia or Thomas have concurred with Gonzales? Not a chance.