The Abortion Jurisprudence of Alberto Gonzales Michael Stokes Paulsen Copyright 2005 All Rights Reserved

Alberto Gonzales has been a trusted friend and advisor of President George W. Bush for years, serving his administration ably and loyally first as White House Counsel and now as Attorney General, the first Latino to hold that position. So it is not at all surprising that he should be, and has been, considered seriously by President Bush as a possible nominee to the U.S. Supreme Court. The prospect of a Justice Gonzalez has produced fear and loathing by some on the right. But what is the basis for this reaction? To be sure, it is to be expected that Judge Gonzales=s earlier writings and actions B as Attorney General, as Counsel to the President, and perhaps most importantly as a justice on the Texas Supreme Court B should come under serious scrutiny for indications of Gonzales=s judicial philosophy and clues about how he likely would rule as a Supreme Court justice on the most important constitutional issues of the day: presidential power in foreign affairs, war and peace, and the law governing torture; race and affirmative action; and, of course, abortion, probably the defining constitutional issue of our era. What is the evidence concerning Gonzales=s views in these areas? Some of Gonzales=s thinking on these subjects has been open and notorious B and highly controversial. It is the area of abortion where his views are less clearly understood. Yet, ironically, that is where he has written and ruled as a judge most extensively. It is in this area that Gonzales=s judicial philosophy is most meaningfully expressed, in a series of cases in which he sat as a Texas Supreme Court justice. War, Foreign Affairs, Torture: A Staunch Presidentialist Before turning to those critical cases, though, it is worthwhile to begin with a brief review of the area in which Judge Gonzales draws the sharpest fire from political liberals: presidential war powers. Judge Gonzales=s views on presidential power in the war on terror, at least as expressed in his roles as White House Counsel and Attorney General, are well known. And they are aggressively B one might even say extremely B conservative: The President has the power unilaterally to terminate or re-interpret the United States=s treaty obligations under the United Nations Charter, the Geneva Conventions, and the Convention Against Torture, Gonzales has written. These positions were formulated by other leading administration attorneys, but 1

Gonzales vigorously embraced them. Gonzales has backed the administration away from its earlier position that the President=s constitutional power as Commander-in-Chief also permits him to override or disregard any laws passed by Congress that he regards as encroaching on that power B including laws banning torture of prisoners B but the administration has not formally repudiated that bold legal position; it has simply disavowed the practice of torture. All of this is reliably conservative, even the cautionary partial retreat from the most aggressive legal stance, where that stance was unnecessary to protect the administration=s interests. While it is difficult to be certain what position Gonzales would take as a Supreme Court justice, rather than an administration official, there is every reason to believe Gonzales means what he has said on these important issues, and would stick to his guns (so to speak) for the administration=s positions, were he appointed to the Supreme Court. There is no good reason for conservatives to doubt Gonzales=s fidelity to conservative positions in this area. Still, presidents have been disappointed by former attorneys general who became Supreme Court justices and ended up striking down executive branch positions that their prior opinions might have suggested they would uphold. Justice Robert Jackson took positions as FDR=s Attorney General that he explicitly rejected when ruling against President Truman in the famous Youngstown Sheet & Tube case, striking down Truman=s seizure of the nation=s steel mills to avoid a supply interruption during the Korean War. Justice Tom Clark B Truman=s own Attorney General B also ruled against the administration, to the great consternation of Truman. For better or worse, though, the question of how Gonzales would behave as a justice is largely academic, at least as they concern any war policies of the Bush administration formulated during the past five years. Because Gonzales was intimately involved in formulating the administration=s legal policies in the war on terror, he would be disqualified from ruling on them as a justice of the Court. Ironically, then, the issue area in which Gonzales has the strongest conservative legal credentials, and with which he is most strongly and clearly identified (and would thus draw attack from the left in a confirmation battle), is also the issue area in which he would be almost entirely sidelined as a Supreme Court justice.

Racial Preferences: A Moderate Backer of Affirmative Action The second hot-button issue of concern to conservatives is Aaffirmative action@ in the form of official government policies that provide preferences for programs like college admissions explicitly on the basis of race. Here, there is little doubt that Judge Gonzales=s views lean more toward the center or even slightly to the liberal end of the spectrum. As White House counsel, Gonzales intervened to soften the administration=s brief in the University of Michigan reverse discrimination cases, with the result that the government=s brief ended up taking the position that government programs giving racial preferences in college admissions are not necessarily unconstitutional and may be justified in the name of promoting the Aimportant and entirely legitimate government objective@ of Aensur[ing] diversity,@ if sufficiently narrow in scope. Administration insiders have reported that the language and position of the brief reflected 2

a compromise between the more conservative views of Department of Justice lawyers and the more liberal views of Judge Gonzales. It is possible that Gonzales steered the administration brief more to the center out of simple political calculations. But it is equally likely that Gonzales=s own personal views on affirmative action issues are to the left of his client=s. As a Justice, Gonzales would be more free to press that position, and he could rule on such issues other than in specific cases in which he was involved as White House Counsel or Attorney General. Again, the evidence is inconclusive B actions taken as an executive branch official are always an uncertain guide B but the best guess is that Gonzales would end up being somewhat to the left of Justice O=Connor=s mugwump Aswing@ position on these issues. He certainly would not be the champion of race-blindness under the Constitution that Justices Antonin Scalia and Clarence Thomas are.

Abortion: A Split-the-Baby-in-Two AModerate@? Far more probative of Judge Gonzales=s judicial philosophy than either war-on-terror issues or affirmative action, where he served in a political role, is a series of abortion cases that came before Gonzales when he was a justice of the Texas Supreme Court, in early 2000. Conservative critics have seized on these cases to charge that Gonzales is a weak opponent of Roe v. Wade and abortion, and perhaps even a soft supporter of abortion and abortion rights. More broadly, the Texas abortion cases in which Gonzales participated have been taken as evidence of a lack of any clear, coherent, conservative judicial philosophy. What exactly is the evidence to support this charge? Is it persuasive, or is the accusation unfair? The evidence merits a careful review, for the Texas abortion cases are not only important in their own right but, more broadly, serve as excellent paradigm cases for looking at judicial philosophy. The numerous opinions in these several cases illustrate just about every possible jurisprudential approach to statutory and constitutional interpretation, and do so in the crucible of a highly contentious legal issue. It is no exaggeration to say that these cases likely reveal more about the judicial philosophy of the judges involved than any other single set of indicators. And Alberto Gonzales was right smack in the middle of them B both figuratively and, as a jurisprudential matter. Gonzales=s position was Acentrist@ (after a fashion) on the issues involved, sometimes voting with the liberal wing of the court to order an abortion by a teenage minor without parental notification, sometimes voting with the conservative wing of the court to uphold lower courts= orders requiring parental notice, and generally adopting middle-of-the-road or just slightly left-of-center positions in interpreting the state laws addressing the topic.

In re Jane Doe 1 The Texas abortion cases in which Judge Gonzales participated B six of them B all bear 3

some version of the title AIn re Jane Doe,@ with the Jane Does numbered 1-4. (Some of the cases came up to the Court twice.) Each involves the situation of a minor seeking to have an abortion without her parents= knowledge. The issues are somewhat technical, but not terribly difficult to untangle. In brief, a Texas law enacted in 1999 required that the parent of a minor seeking an abortion be notified before any abortion occurred. As required by certain abortion decisions of the U.S. Supreme Court, however, the Texas statute provides for a Ajudicial bypass@ B a procedure by which a judge can authorize an abortion without either one of a girl=s parents knowing about it, in three circumstances: (1) if the judge is satisfied that the girl was sufficiently Amature@ and Awell-informed@ about the nature of the abortion procedure, (2) if the judge finds that notifying a parent would likely produce physical, emotional or sexual abuse, or (3) if neither of the other two exceptions applies, the judge nonetheless finds that authorizing an abortion without notice is nonetheless in the Abest interests@ of the minor. Several cases concerning the meaning and application of these requirements made their way to the Texas Supreme Court in rapid succession in early 2000. The first of these, In re Jane Doe (later renamed In re Jane Doe 1, because so many other AJane Doe@ cases followed fast on its heels), involved the first judicial-bypass route. Judge Gonzales voted with the majority (but did not write the opinion), construing the statute=s Amaturity@ and Awell-informed@ requirements as imposing a relatively low threshold of proof, so as more liberally to permit abortions without notice to a girl=s parents. The majority opinion joined by Gonzales held that a minor wishing an abortion must show, first, that she had Aobtained information from a health-care provider@ about health risks of abortion and that she understood those risks; second, that she understood that alternatives existed to abortion; and third, that Ashe is also aware of the emotional and psychological aspects of undergoing an abortion@ including how her decision Amight affect her family relations.@ These three types of information were all that the majority considered required to satisfy the statute=s requirement that a minor be Awell-informed.@ The court=s opinion did not require that such information be presented in any particular form. Moreover, it could be obtained from any Areliable and informed@ source B including, under the majority=s interpretation, the staff of an abortion clinic (a fact the dissenters pointedly protested). The majority in Jane Doe 1 also held that whether a minor is Amature@ and Asufficiently well informed@ are Atypical fact-finding functions, performed by a trial court only after hearing the minor=s live testimony and viewing her demeanor.@ Accordingly, appellate courts should be deferential to the trial judge=s on-the-ground, first-hand evaluation of the facts. As long as there was a Alegally sufficient@ basis for a lower court=s judgment as to whether a minor was sufficiently informed B that is, so long as the three required categories of information were presented and understood, the trial judge=s evaluation should stand. And, the court held, a trial judge=s finding of Amaturity@ should receive even greater deference. The majority=s actual disposition of Jane Doe 1 is also important (as will become clearer 4

below). Two lower courts B the trial court and the court of appeals B had denied the minor=s application for a judicial-bypass abortion. But since Jane Doe 1 was the first case presenting such issues to the Texas Supreme Court, the majority Avacated@ the lower courts= rulings and sent the case back to the trial court for fresh consideration in light of the majority=s new interpretation of the statute. The majority=s decision in In re Jane Doe 1 provoked some strong dissents. Justice Priscilla Owen B now recently confirmed as a Bush appointee to the U.S. Court of Appeals for the Fifth Circuit, and herself often mentioned as a possible nominee to the U.S. Supreme Court B wrote an opinion that, while in form a Aconcurrence@ (she agreed that the minor had not yet satisfied the statute=s requirements, but that the case should be returned to the trial court), strongly dissented from the standards adopted by the majority. Justice Owen emphasized the Ahistory of how and why the bypass procedure@ was adopted, and laid out the legislature=s purpose of tracking the U.S. Supreme Court=s cases establishing how far a state could go in requiring parental notice in most cases. The U.S. Supreme Court=s decisions Ashould guide interpretation@ of the Texas statute, she wrote, since this was the legislature=s intent. AThe bypass procedure@ was not meant to permit to permit an abortion without parental notice Abased on a minimal showing.@ Justice Hecht, joined by Justice Abbott, filed a detailed dissent, concluding that the majority=s view meant Athat it is not much harder now for a minor to obtain an abortion without telling her parents than it was before the Parental Notification Act was passed.@ Justice Hecht=s dissent carefully explained how the majority=s approach was contrary to the legislature=s intent, contrary to the U.S. Supreme Court=s cases that formed the backdrop of the legislature=s action, and permitted easy evasion. The majority=s opinion, Aacts as if these requirements are significant, but they plainly are not,@ Justice Hecht wrote. AAny competent attorney representing a minor in a case like this can easily script testimony that will meet all three requirements.@ Standing alone, Jane Doe 1 provides uncertain evidence of Alberto Gonzales=s views on abortion and of his judicial philosophy generally. The court split 6-3 on the key issues, with Gonzales joining the majority in a legitimately debatable interpretation of the Texas statute, adopting the more liberal judicial-bypass view. The position of the three dissenters (counting Judge Owen) was, on balance, the better one, though not overwhelmingly so. The dissenters read the statute against the backdrop of the Supreme Court=s cases outlining the permissibility of parental notification statutes, so long as a Ajudicial bypass@ procedure was also available. The statute probably reflected the Texas legislature=s intention to be as pro-parent and pro-life as possible, consistent with the constitutional criteria the Supreme Court had endorsed. The words of the statute track closely B albeit without elaboration B the Supreme Court=s language. For Justice Owen and the others, the majority=s decision to read such language as imposing relatively light proof requirements on the minor seemed to run against the intention of the legislature. In a sense, the dissenters were willing to interpret the legislature=s language in light of its background and purpose, and not to read it unduly narrowly. The dissenters= critiques are powerful and persuasive. As construed by the majority, the 5

Texas Parental Notification Act authorizes Ajudicial bypass@ abortions in more circumstances than the U.S. Supreme Court has said are constitutionally required, making Texas=s abortion law more permissive than the U.S. Supreme Court=s own decisions. This fact was emphasized by the dissenters, who probably had the better of the argument in terms of the legislature=s intent and, significantly, the likely permissive effect of the majority=s interpretation B a result almost certainly inconsistent with the purpose of the Texas law. The majority=s decision, which Gonzales joined, thus can be seen as Aliberal@ in the direction of abortion rights. Still, it is hard to say that the majority=s interpretation was entirely unreasonable or that Gonzales=s decision to join the majority is strong evidence of a pro-abortion orientation. The Gonzales position might be thought an example of Ajudicial restraint@ in the sense of declining to read into the statute requirements that are not specifically there. It declines to Aimprove@ on the legislature=s work. Yet on the other hand, reading the requirements in such a minimalist fashion does tend to show a lack of sympathy for the manifest pro-life orientation of the statute. It in essence reads the statute strictly, against the legislature. While this may be a reasonable approach to statutory interpretation, it is a somewhat uncharitable approach to the legislature=s efforts. Either view, standing alone, is arguably Aconservative,@ each in a slightly different way, with Justice Gonzales=s view ending up being more Amoderate@ in effect and Justice Owen=s and the other dissenters= being more conservative in its result on this specific issue. Yet the dispute over the abstract standards for determining whether a minor had satisfied the legislature=s requirements that she be mature and well-informed is probably one on which fair-minded men and women reasonably could differ. There is another, more important, chapter to the In re Jane Doe 1 story. The case came back up on appeal a second time, two weeks later, following remand to the trial court for reconsideration in light of the Texas Supreme Court=s new interpretation of the statute. Gonzales=s vote and opinions in that second appeal, which goes by the strange name AIn re Jane Doe 1 (II),@ end up saying much more about his judicial philosophy and approach to abortion than does the simple fact of his having joined the majority opinion on the question of the abstract standards of the statute. I will take up that second decision presently. But it is worthwhile to note the other decision of the Texas Supreme Court on the judicial-bypass issue during the weeks in between the first and second round of Doe 1.

In re Jane Doe 2 Shortly after the first decision in Doe 1, the Texas Supreme Court decided another important abortion case, In re Jane Doe 2 (March 7, 2000). In Jane Doe 2, Judge Gonzales voted with the majority to construe the third avenue for judicial bypass abortions, theAbest interest@ exception. This third exception is available to permit an abortion without parental notice even when the other two routes are not satisfied B that is, even where the minor was not sufficiently mature or well-informed and even where there was no showing that there would be 6

parental abuse of any kind. The Jane Doe 2 majority construed this exception as permitting a judge to authorize an abortion without parental notice upon a showing that notice to a parent would not be in the minor=s best interest, but not to require that the minor also show that having the abortion without notice to a parent was also in the minor=s best interest. The majority held that a court, in deciding whether parental notification is not in a minor=s best interest, must consider several factors, including Athe minor=s emotional or physical needs,@ Athe relationship between the parent and the minor and the effect of notification on that relationship,@ and Awhether notification may lead the parents to withdraw emotional and financial support from the minor.@ Again, Justice Gonzales did not write his own opinion but merely joined that of a somewhat more liberal 6-3 majority. And again, the contrast is with Justice Priscilla Owen=s dissenting opinion and the dissenting opinion of Justices Hecht and Abbott. Justice Owen took aim at the failure of the majority to require proof that authorizing the abortion itself, without parental notice, would be in the minor=s best interest: AThe Court has omitted any requirement that a trial court find an abortion to be in the best interest of the minor.@ Justice Owen noted that the U.S. Supreme Court, in a series of earlier cases, had considered Abest interest@ bypass provisions essentially identical to those adopted by Texas and found that they unavoidably entailed an inquiry not only into whether parental notice was in a minor=s best interest, but whether the abortion itself was in the minor=s best interest. Quoting the U.S. Supreme Court=s decision in Lambert v. Wicklund in 1997, Justice Owen noted that A>a judicial bypass procedure requiring a minor to show that parental notification is not in her best interests is equivalent to a judicial bypass procedure requiring a minor to show that abortion without notification is in her best interests.=@ (Justice Owen added the emphasis to the U.S. Supreme Court=s language.) Justice Hecht, again joined by Justice Abbott, filed a strenuous dissent, arguing that A[t]he Act=s bar to teenage abortions without parental involvement is set ankle high, according to the Court, and any minor who can hurdle it is, as a matter of law, entitled to have her application granted.@ The majority=s construction of Abest interest,@ Justice Hecht observed, permitted a minor to have an abortion without notice to her parents if notification might be Apotentially upsetting to the minor or her parents.@ The dissent continued, colorfully: AImagine the household in which the junior high or high school daughter announces to unsuspecting parents, without upsetting anyone, that she is pregnant and getting an abortion. Catatonic parents may be told that their daughter is having an abortion, the Court says; the Act spares all others the shock.@ Judge Gonzales=s vote in Jane Doe 2 is more troubling than his vote in Jane Doe 1, because it is very difficult to deny the force of the dissents= arguments in In re Jane Doe 2. Much more clearly so than in Jane Doe 1, the majority=s decision in Jane Doe 2 fails to address relevant (indeed, probably controlling) U.S. Supreme Court decisions, with the result that the standards adopted by the Texas Supreme Court for judicial-bypass minors= abortions are extremely liberal toward abortions without parental notice. The two decisions, Jane Doe 1 and Jane Doe 2, taken together, almost certainly frustrate the intention of the Texas legislature and 7

are clearly at odds with the approach dictated by the U.S. Supreme Court in closely analogous cases. Justice Owen=s dissenting opinion is clearly right on this latter point; and the majority opinion is clearly legally flawed. Justice Hecht=s dissenting opinion is also clearly right as to how low a standard the majority sets for not notifying parents of their daughter=s abortion. The effect of the majority=s decision is that a minor in Texas may receive an abortion without notifying her parents if a judge determines that parental notice would be emotionally upsetting to the minor, disrupt her relationship with her parents, or cause her parents to withdraw financial support. The judge need not find that the abortion is in the minor=s best interest, but only that notifying her parents would not be, for one or more of the reasons stated. This holds true, according to the majority=s disposition of the case, even where the minor is not mature and not well informed about the abortion decision, and even where there is no evidence that notification to her parents would result in abuse of any kind. Whether the majority (including Justice Gonzales) consciously intended such a result or not, it is plain that the standards the majority adopted render the Texas Parental Notification Act nearly toothless, as Justice Hecht so forcefully argued. A minor can almost always easily circumvent the supposed requirement of parental notice. The bar is set, as Justice Hecht put it, Aankle high@ and most trial judges would feel constrained to authorize the abortion. The only thing standing between a minor=s abortion without notice to her parents would be a trial judge who chose, notwithstanding Jane Doe 1's and Jane Doe 2's lenient standards, to exercise careful review over a minor=s assertions that she was mature and well informed or that it was in any event not in her interest to tell her parents. It is not easy to defend Justice Gonzales=s decision to join the majority in Jane Doe 2 as an exercise of judicial restraint, or as an inconsequential technical disagreement over statutory interpretation. This is not to say that Gonzales=s vote indicates a pro-abortion disposition. But the alternative explanations are not especially reassuring either. It may be that Gonzales=s vote was not carefully considered, that he was willing to go along with the majority=s decision, or that he thought the outcome a balanced and sensible result as a policy matter. No matter the explanation, it is difficult to avoid the force of conservatives= concern that, as a Texas Supreme Court justice, Gonzales=s vote in this case simply fails to come to grips with the powerful legal arguments of the dissents and that the consequence of his position was to render a Texas statute designed to secure parental involvement in abortion decisions virtually a meaningless cipher. The silver lining of both Jane Doe 1 and Jane Doe 2 is language concerning the need for reviewing courts to give great deference to the trial judge=s findings of fact. However, the decisions also made clear that appellate courts could exercise meaningful review, and might reverse, a lower court=s decision not to order an abortion under these standards. In the second appeal involving Jane Doe 1, decided just a few days later, that possibility became a reality, and became the occasion for the most important set of opinions in the Texas abortion decisions. In Re Jane Doe 1 (II) B the Second Round 8

Two weeks after the first opinion in the case, Jane Doe 1 returned to the Texas Supreme Court. Following the remand order in the first appeal, the trial judge had held a new hearing on the minor=s contention that she was Amature@ and Awell informed,@ taking into account the new standards of Jane Doe 1. The trial court again denied the application for an abortion without parental notice, making more specific findings as required. An appellate court affirmed the trial court=s decision, and the minor appealed to the Texas Supreme Court, filing the record after business hours on Wednesday, March 8, 2000. On Friday, March 10, the court, on a 5-4 vote, reversed the decisions of both lower courts and issued an order granting the minor=s application for a judicial bypass abortion. Justice Gonzales was in the majority B crucially, this time his vote was necessary to the outcome. Chief Justice Phillips (who had been in the majority in the earlier cases) joined Justices Owen, Hecht, and Abbott, in noting their dissents. Both the majority and the dissents indicated that their opinions would Afollow@ B which they did, more than three months later, on June 22, 2000. It is worth breaking the chronology of the decisions to go directly to those opinions, but it should be briefly noted that the Texas Supreme Court would issue three other abortion decisions in the meantime B In re Jane Doe 3, and two cases styled In re Jane Doe 4. Those cases will be discussed presently. It is sufficient to note here that those decisions certainly added to the steady crescendo in the level of rhetoric and anger that one sees burst out in In re Jane Doe 1 (II). The second appeal in Jane Doe 1 presented the issue of the lower courts= application of the more lenient standard for a minor=s obtaining an abortion without parental notice, adopted by the majority in the earlier appeal. As noted, in Jane Doe 1(II) the Texas Supreme Court reversed both the Texas trial court=s and the Texas intermediate appellate court=s finding that the minor in question was not sufficiently Amature,@ within the meaning of Texas=s Parental Notification Act as construed by the Court. Gonzales joined the majority in reversing this determination, and his vote was crucial to authorizing B against the views of four dissenting colleagues and of the lower court judges B a minor=s abortion without parental notice. He also wrote a separate concurring opinion defending the majority=s opinion and stating that any other outcome B meaning, apparently, the views of the dissenters B Awould be an unconscionable act of judicial activism.@ It is the decision in Jane Doe 1 (II), probably more than any other, that has fueled the ire of Gonzales=s opponents on the right, and especially those opposed to abortion on demand. For despite the assurances of the first two decisions, the Texas Supreme Court did not defer to the judgment of the trial judge who heard the evidence, or of the appellate court that had carefully reviewed that judgment. Instead, the majority, including Gonzales, rushed to issue an order authorizing the minor=s abortion without notice, and then rationalized the action months later in a collection of highly strained opinions. The majority opinion, which Gonzales joined but did not write, has something of the same epic and self-important tone as the U.S. Supreme Court=s AJoint Opinion@ in Planned Parenthood v. Casey, the 1992 decision narrowly reaffirming Roe on the bitterly ironic rationale of stare decisis and Ajudicial restraint.@ (A few years ago I wrote a law review article for the 9

Notre Dame Law Review for the tenth anniversary of Casey, calling it AThe Worst Constitutional Decision of All Time.@) The majority opinion in Jane Doe 1 (II) begins with a gratuitous ode to AThe Proper Role of Judges,@ championing the obligation of judges not to rewrite statutes, but to observe the constraints imposed on the judicial function by our democratic society. Then, after re-examining the statutory interpretation issue decided in the first appeal, the majority undertook to explain AWhy the Court Ruled with Opinion to Follow@ and added a concluding paragraph entitled ARespecting the Rule of Law.@ The majority=s stated justification for ruling within a day of the petition was Aconcern that any further delay might expose [Jane Doe] to greater risk.@ (Justice Owen=s dissent took strong issue with this claim, as we will see.) As to respecting Athe rule of law,@ the majority acknowledged that Aabortion is a divisive and highly-charged issue@ but added, rather condescendingly: Thus, we recognize that judges= personal views may inspire inflammatory and irresponsible rhetoric. Nevertheless, the issue=s highly-charged nature 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.= (Quoting Casey). This, of course, was a direct swipe at the dissenters. (The concurrences would end up being yet more direct, and more personal.) The dissenters, the majority was saying, were simply imposing their own personal convictions, and employing inflammatory and irresponsible rhetoric. They were disrespecting the rule of law and the proper office of judge, as that role had been explained by the U.S. Supreme Court in Casey. To be sure, the dissents= rhetoric attacks the majority opinion fully as harshly, as we shall see. But that rhetoric is trained on the merits of the majority=s judgment and what the dissenters see as the inadequacy of the majority=s justifications for its extraordinary action. The majority=s rationale on the merits was that, notwithstanding the seemingly deferential standards announced in the earlier appeal, ADoe does not have the burden of proving in this Court that she is mature.@ Rather, finding fault with the lower courts= application of the standards the Court had announced in the first appeal, the majority decided not to require proof by the minor of maturity after all. In a convoluted explanation, the majority stated: A[W]e cannot infer that the trial court based its decision on a determination that Doe was not mature. Rather, we consider whether Doe established that she is sufficiently well informed to make the decision to consent to an abortion without notifying a parent.@ Translation: The statute=s requirement that a minor be mature and well informed would be satisfied if the majority concluded that the minor was only Awell informed@ about abortion, contrary to the lower courts= findings, if the majority doubted that lack of maturity was an independent basis for the lower court=s denial of the abortion. Thus, maturity would be presumed to have been established, absent an explicit finding to the contrary.

10

The majority then concluded that Jane Doe #1 was sufficiently well informed because she had given alternatives to abortion Athoughtful consideration.@ The majority reasoned as follows: [E]ven though there may be generally recognized benefits to an alternative, those benefits must be considered in light of the minor=s particular situation. According to Doe=s testimony, adoption was not a realistic option for her because she would grow emotionally attached to the child after birth and would be unwilling to give the child up. Doe=s testimony shows that she does not perceive any benefits to carrying a baby to term in her current situation. The undeniable benefits of adoption the court of appeals identified are thus, to Doe, immaterial. The Texas Supreme Court majority thus rejected the conclusions of both lower courts that the 17-year-old girl did not fully understand the implications of her choice, at least not sufficiently to authorize an abortion without parental notification. The majority wrote: AThat 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.@ Further: AThe concept of >benefits= is inherently subjective; what one person may consider a benefit, another may not.@ The majority was unmoved by the lower courts= perception that there was something not very well-thought-out about the girl=s view that adoption was a poor alternative to abortion because she would not be able to part with her child after giving birth. The majority also noted that the girl had testified that it would be hard to care for a child at this age, that she had peers who had had children in similar situations and wished they Acould take it back,@ and that she wanted to go to college and have a career, and to be married and settled down, before having a child. The majority further noted that the girl was well informed because she had talked briefly with a doctor, at greater length (an hour and a half) with the abortion clinic counselor, and had read literature supplied by the abortion clinic addressing these points. The majority conceded that ADoe did not seek information or counseling from anyone who would be against her having an abortion.@ There were two concurring opinions, one by Justice Enoch (joined by Justice Baker) and one by Justice Gonzales (which Justice Enoch joined, in addition to writing his own concurrence). Since the concurring opinions are largely responses to the points, and the pointedness, of the dissents, it makes sense to look at the dissents first. Predictably, the dissents took sharp issue with the reasoning and result of the majority, training in on its obvious vulnerabilities. Justice Hecht mocked the self-congratulatory tone of the majority opinion and concurrences concerning the rule of law, charging that several aspects of Athe Court=s opinion belie its rhetoric.@ His lengthy dissent criticized the haste of the court=s decision as unnecessary to further any legitimate concern for increased risk to the minor from an abortion resulting from a few more days= delay. Justice Hecht next repeated, and augmented, criticisms he had made in his dissent in the earlier appeal. Finally, he vigorously challenged the propriety of overruling the trial court=s findings, which he quoted: 11

AJane Doe has failed to prove by a preponderance of the evidence she is sufficiently well informed to have an abortion without notification to either of her parents. While she has been well apprised of the risks attendant to abortion and childbirth, she has received inadequate counseling, and has shown no understanding, of the benefits and consequences of the alternatives to abortion. She admits that she does not know the benefits of keeping the child, and she presented no testimony that she has been counseled or understands the benefits of adoption. Thus, she has not demonstrated that she has given thoughtful consideration to her alternatives, including adoption and keeping the child. Additionally, and not in issue, she has not sufficiently proved that notifying the parents is not in her best interest, or that notifying her parents will lead to abuse.@ (Quoting trial court=s findings). Justice Hecht quoted at some length the trial record evidence that supported the trial judge=s findings, and concluded that there was ample evidence to support the trial court=s denial of the application for a judicial-bypass abortion. AThis Court simply usurps the trial court=s fact-finding authority, which it would not do in any other case, and ignores the limitations on appellate review. The Court offers no justification for its actions, and the only apparent explanation is its complete disregard of the lower courts= authority and its antagonism to the Legislature=s purposes in the Parental Notification Act.@ The concluding section of Justice Hecht=s dissent was undeniably a direct poke at the members of the majority (which may in part explain the tone and content of the concurrences): The rationale for the Court=s rulings, I think, is that the Court does not regard the decision to have an abortion as being a very important one. Minors should generally be allowed to make that decision by themselves, the Court thinks, even though the law does not allow them to decide whether to have a tonsillectomy. A tonsillectomy is serious surgery; an abortion, the Court thinks, is not. Also, the Court believes that minors need not know much more about the process than what they can find out in a short visit to Planned Parenthood. If their parents are opposed to abortion, that is reason enough to avoid telling them. And most importantly, according to the Court, minors need not give much consideration to their parents= rights to guide their lives, or their own need for parental involvement in their major, life-changing decisions. Justice Owen wrote her own dissent. Less caustic in tone that Justice Hecht=s dissent, Owen=s critique of the majority is more thorough and more devastating. Justice Owen began by challenging Athe methods employed by the Court@ in rendering its judgment, by implication turning the majority opinion=s rhetoric concerning the rule of law against the majority opinion itself: The Court summarily reversed the lower courts, without an opinion and without 12

the opportunity for considered, substantive deliberations. Now that the Court has, after the fact, issued an opinion, it has obliterated, with the stroke of a pen, more than fifty 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. Justice Owen undertook a lengthy review of the majority=s rush to authorize the abortion in March, without any explanation, even an abbreviated one, either of Athe substantive grounds for the ruling@ or of Athe need to render final judgment without an opinion or at least a notation.@ Justice Owen=s opinion made a persuasive case that such action was not warranted by any showing of urgency with evidentiary support in the record. Her opinion indicates considerable displeasure with the process of decision-making in the case, and hinted that she could have supplied more reasons were she not under an ethical duty as a judge not to report the content of internal court deliberations and discussions. Justice Owen concluded this section of her dissent with a pained reflection on both the process and the inevitability that the court=s ultimate opinion would strain, no matter how desperately, to validate what it had done in such an unreflective rush: Bluntly put, the Court has manufactured reasons to justify its action. Equally troubling is the lack of process accorded in this case. Once judgment had issued, and presumably Doe had proceeded with an abortion without the knowledge or consultation of either of her parents, how likely was it that any member of the Court who voted to summarily reverse the court of appeals= and trial court=s judgments and render judgment for Doe would be inclined to give studied consideration to writings offered by dissenting members? How likely was it that on consideration of written analyses, any of the five members of the Court who voted to hastily issue a judgment would change his or her mind and correspondingly, his or her vote? Justice Owen then proceeded to the merits, addressing first the majority=s overturning of the trial court=s findings of fact: AOne of the many remarkable statements in the Court=s opinion attempting to justify its reversal and rendition in this case is that because the trial court did not make a specific finding that Doe had not shown maturity, the Court is empowered to presume that Doe is mature. * * * The Court thus overrules more than fifty years of precedent.@ Justice Owen=s dissent then showed how the majority=s approach was inconsistent with well established Texas procedural law. Justice Owen strenuously argued that A[u]ntil today, it had been wellsettled law that when a trial court makes findings of fact and conclusions of law, an appellate court must presume that the evidence supports >not only the express findings but also any omitted findings which are necessary to support the judgment= unless the record does not support the judgment.@ Next, Justice Owen set forth in detail the factual evidence supporting the trial judge=s conclusion. She demonstrated that there was clearly an adequate factual basis in the record for 13

the trial judge=s determinations (affirmed by the intermediate appellate court) with respect to the maturity and well-informed requirements, and that the Texas Supreme Court majority clearly could not have carefully reviewed this record evidence, given their hasty Friday-afternoon authorization for the abortion without parental notice. Justice Owen observed that the minor=s reason for not notifying her parents was that it would upset them, because Athey do not >believe in abortion=@ and, revealingly, Athat she feared that her parents would no longer provide financial assistance to her if they knew that she had an abortion.@ Justice Owen would have held that, based on this and other testimony, the trial court Acould reasonably find that Doe was not mature enough to make the abortion decision without telling one of her parents@ and that it was wrong for the majority to have overturned the lower courts= determination in this regard. As to whether the minor was Awell informed@ concerning the totality of circumstances informing the abortion decision, Justice Owen pointed to testimony of the minor that indicated she was naive and uninformed concerning the adequacy of adoption procedures for assuring that a child be placed in a good home. Justice Owen pointed out how several of the majority=s factual assertions found Ano support in the record.@ Finally, she observed that the record showed that Doe Adid not seek advice or counseling from anyone who was inclined to thoroughly explore with her the adverse emotional and psychological impact that an abortion may have.@ Instead, ADoe 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.@ Justice Owen also noted the flaws in the majority=s analysis concerning whether Doe adequately understood the alternatives she had to abortion, and the implications of her own statements: The Court says Aadoption was not a realistic option for [Doe] because she would grow emotionally attached to the child after birth and would be unwilling to give the child up.@ (Citation omitted). This is an accurate paraphrase of her testimony, but it reveals that Doe did not consider whether her parents would help her raise the child or raise it themselves if she decided to carry her baby to term. Similarly, Doe expressed concern about her ability to provide financial support for her child, but she did not indicate that she had considered whether her parents would support her and her child if she decided to have it. The concluding section of Justice Owen=s dissent directly challenged the bona fides of the majority=s (and the concurrences=) Arule of law@ rhetoric, and merits quotation in full: The Court says that Ajudges= personal views may inspire inflammatory and irresponsible rhetoric@ and that the Ahighly-charged nature [of abortion issues] does not excuse judges who impose their own personal convictions into what must be a strictly legal inquiry.@ (Citation omitted). To which judge or judges 14

does the Court refer? To the judge of the trial court, who saw and heard Doe testify in person during the course of two hearings and made findings that are supported by the record? To the three justices on the court of appeals who reviewed the record and wrote a thoughtful opinion that cannot be characterized as inflammatory or as containing irresponsible rhetoric? To one of more of the justices on this Court? I challenge the Court to state plainly how any judge=s personal convictions have entered into analyzing what is strictly a legal issue in this case. That issue is whether there was some evidence to support the trial court=s failure to find by a preponderance of the evidence that Doe was mature and sufficiently well informed to make a decision to have an abortion without notifying one of her parents. It is the Court who has acted irresponsibly in this case by summarily rendering judgment without careful consideration of the record, by manufacturing reasons to support its actions, and by ignoring the evidence that supports the trial court=s judgment. I dissent from the Court=s judgment in this case and from the manner in which this appeal has been resolved. The Court has disregarded the law and has trampled the process on which the legitimacy of our law depends. The concurring opinions in the case, one by Justice Enoch and one by Justice Gonzales, respond primarily to the dissents= charges (Justice Abbott also wrote a separate dissent) that the majority had abused the judicial power in deciding the case. Justice Enoch=s concurrence was heated and personal, singling out Justice Hecht and condemning his dissenting opinion in this case and others, charging that Ahis passion overcomes reasoned discussion.@ The concluding paragraph captures the flavor: When influenced by emotions, a judge loses the judicial perspective, often overstating the case, and at times, resorting to writing that is unbecoming. My colleague=s writings in these cases have been inappropriate. Deep convictions do not excuse a judge from respecting his colleagues, the litigants, or the law. Obviously, justices on both sides of the Jane Doe 1 (II) case could be criticized on this score, including the majority and concurring opinions with equal (or greater) justification. To his credit, Justice Gonzales, while joining the majority opinion, wrote a somewhat more temperate concurrence (ironically, joined by Justice Enoch). Still, Gonzales, like Enoch, harshly criticized the dissents. Because this is one of the most significant statements of Justice Gonzales=s judicial philosophy, and because it came after a substantial period of reflection on the original decision to authorize the abortion, this opinion merits very careful attention as an important indicator of Gonzales=s style, his temperament, and his substantive approach to legal interpretation. AI fully join in the Court=s judgment and opinion,@ Justice Gonzales began. AI agree that 15

there is no evidence supporting the trial court=s finding that Jane Doe was not sufficiently well informed. And I agree that the contrary position is established as a matter of law.@ That is all that Justice Gonzales said, individually, about the specific issue presented by the case. In light of the evidence marshaled by the dissents, however, Justice Gonzales=s flat statements are little short of incredible. They certainly are not responsive to the objections raised by Justice Hecht and Justice Owen. To maintain, in light of the evidence assembled by the dissents, that there was Ano evidence@ supporting the trial court=s judgment, and to overturn the judgment of both lower courts, notwithstanding the obligation to defer to the trial court=s factual findings, and conclude that Athe contrary position is established as a matter of law,@ borders very nearly on the completely indefensible. The second paragraph of Justice Gonzales=s opinion then seeks to justify the actions of the court, noting how, on balance, more of the court=s decisions in the several abortion cases had ended up affirming the denial of a minor=s petition rather than reversing such determinations and authorizing abortions. Gonzales took strong issue with the claim that any of the judges of the court had been motivated by ideology. Instead, he maintained, the court=s results were Abased on the language of the Parental Notification Act as written by the Legislature and on established rules of construction. Any suggestion that something else is going on is simply wrong.@ The third paragraph continued with a short statement of Justice Gonzales=s approach to statutory interpretation: Legislative intent is the polestar of statutory construction. * * * 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. (Citations omitted). Standing on their own, Gonzales=s statements about statutory interpretation and a judge=s obligation are entirely unexceptionable. Indeed, they might have come from the pen of a strict textualist like Justice Scalia. The difficulty is that these aphorisms were entirely unresponsive to the case at hand. They address the issues involved in the first Jane Doe 1 appeal B how to interpret the statute B not the issues presented in the appeal from the lower courts= application of these standards on remand. As the dissents made plain, the issue in Jane Doe 1 (II) was the propriety of the Texas Supreme Court overruling the lower courts= factual determinations, on this record, and almost literally overnight, and the persuasiveness of its post hoc justifications for this action three months later. Gonzales=s statements about judicial method in statutory interpretation, however, sensible, are almost entirely beside the point to the issue at hand. (In one respect, though, they actually weaken Gonzales=s original position, in that they emphasize the primacy of Athe Legislature=s intent,@ which was almost certainly frustrated by the several majority opinions of the Texas Supreme Court interpreting the statute, all of which Justice Gonzales joined.) 16

In short, Justice Gonzales=s statement that the majority decision is fully justified by ordinary principles of statutory construction, and that any contrary suggestion Ais simply wrong,@ is itself simply wrong. The result in Jane Doe 1 (II), and Gonzales=s decisive vote to have authorized the minor=s abortion without parental notification in this specific case, cannot be explained away as a simple, honest disagreement as to correct principles of statutory interpretation. Justice Gonzales, defending his own vote and that of his colleagues, simply does not come to grips with the trenchant criticisms of the dissenting opinions. The next two paragraphs of Justice Gonzales=s concurrence continue the theme of statutory interpretation. The opinion makes salutary nods in the direction of the importance of parental rights, and the importance of straightforward textualist statutory interpretation. AThe policy decision here is clear B to protect parents= rights to involve themselves in their daughters= decisions and to encourage that involvement. But that is only the starting point. The Legislature did not make this parental right absolute.@ Gonzales then recited the exceptions contained in the statute, and said that AI find nothing in this statute to directly show that the Legislature intended * * * a narrow construction@ of these exceptions. To construe the Act in a way that would create Ahurdles@ not specifically found in the language of the statute, Gonzales concluded, would Abe an unconscionable act of judicial activism.@ He continued: AAs a judge, I hold the rights of parents to protect and guide the education, safety, health, and development of their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so.@ Thus, Gonzales felt Acompelled to grant Doe=s application.@ The concluding paragraph of Justice Gonzales=s opinion noted his discomfort, to some degree, with this result. AWhile 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. * * * Because the majority opinion correctly applies the Act as written to the facts in this record, I concur.@ Judge Gonzales=s statement about the positions of the dissenters being Aan unconscionable act of judicial activism@ were used by Democrats to justify the long filibuster of Priscilla Owen=s nomination to the U.S. Court of Appeals to the Fifth Circuit. Gonzales=s statement, of course, was taken slightly (but only slightly) out of context. It was not a direct attack on Justice Owen, and it was stated somewhat hypothetically B that a construction that placed hurdles to abortion into statutory language that did not specifically so provide Awould be@ an unconscionable act of judicial activism.@ Still, it is clear that, even as to the statutory construction point at issue, Gonzales=s statement was hyperbolic and unfair. More to the point, it was entirely misplaced as a ground for criticizing the dissents in the second appeal. Justice Gonzales=s concurring opinion was obviously designed to defend the majority=s result against the criticism of the dissents. His tone is, by and large, measured. Justice Gonzales noted that the tenor of the various opinions Ahave [sic] been unmistakably contentious@ and 17

criticized the sharply worded challenges of the dissenters as not warranted. At the same time, however, his characterization of the position of the dissenters as Aunconscionable . . . judicial activism@ is inapt, unfair, and arguably provocative in its own right. The core problem with Justice Gonzales=s argument is that the statutory interpretation issue was not the crux of the dissenting opinions in this case. His opinion simply does not engage Justice Owen=s arguments, in particular, on their own terms. Moreover, while Justice Gonzales=s general statements about the judicial role B to apply the law, and not personal policy preferences B are laudable, they ring somewhat hollow on the facts of this case. Simply put, the dilemma he posits was not presented by the In re Jane Doe case as it came to the court on appeal. The question, rather, was whether the appellate court should give deference to the factual judgments of the trial judge in applying the agreed legal standard, as usual appellate procedure would seem to dictate. On this point, Justice Owen had by far the better of the argument. Justice Gonzales=s invocation of judicial restraint and the judicial role appears, in this instance at least, to run precisely counter to his actions in reversing the determination of the lower courts not to authorize a secret abortion. To summarize Jane Doe 1 (II), and Gonzales=s role in it, briefly: Justice Owen=s views, and those of the other dissenters, cannot fairly be characterized as Ajudicial activism,@ let alone Aunconscionable.@ Nor can it fairly be said that the actions of the majority in this case were dictated by the language of the legislature or even by the court=s prior construction of the statute. Rather, the majority=s actions appear to run counter to usual notions of judicial restraint and deference. Justice Gonzales=s vote to reverse the lower courts, and authorize a minor=s abortion, simply cannot be defended very plausibly as mandated by notions of judicial restraint. Quite the reverse, the more activist course appears to have been the one adopted by a majority of the court, including Justice Gonzales. While the words of his concurring opinion are words of judicial restraint, it is hard to reconcile his actual actions in this case as consistent with such a principle. Justice Gonzales cast what proved to be a deciding vote in favor of a minor=s secret abortion and unfairly criticized the alternative view as activist. Justice Gonzales=s role in In re Jane Doe 1 (II) B his vote, his joining of the majority opinion, and what he chose to say (and not say) in his own separate concurring opinion B is the most disturbing single set of data bearing on his fitness to be appointed to the U.S. Supreme Court by a President who is both pro-life and committed to appointing only judges who will strictly construe the Constitution. To be sure, it is a single case (though the picture is not greatly improved by consideration of the other abortion cases). But it is a paradigm case B a signature case of defining importance. And on this case, Alberto Gonzales not only got it wrong, but got it badly wrong, displayed poor judgment, employed misplaced reasoning concerning judicial activism, and unfairly criticized the dissenters. Moreover, the result was dramatically wrong: Justice Gonzales authorized an abortion not truly required by law. As warning signs go, Gonzales=s decision here is a far more glaring red flag than anything that existed in David Souter=s record as a state court judge (and even with Souter, there was more reason to be concerned than was publicly acknowledged at the time B a topic I addressed in a law review article several years ago). 18

The only thing in which a judicial conservative could take solace are Gonzales=s general statements about the judicial role, and the fact that he clearly was more of a Abalancer@ or Amoderate@ or Asplit-the-difference@ judge on abortion, and more moderate in his record, than the more aggressive left wing of the Texas Supreme Court. But he joined the court=s opinion and judgment, and wrote separately in its defense. In re Jane Doe 3 Between the order to authorize the abortion in Jane Doe 1 (II), in early March of 2000, and the opinion defending that order, in late June of that year, the Texas Supreme Court issued three other opinions concerning judicial-bypass abortions. In re Jane Doe 3 involved a minor who had sought a judicial-bypass abortion on three grounds: first, that she was sufficiently mature and well informed; second, that notifying her parents would lead to emotional abuse; and third, that not notifying her parents was in her best interest. The trial court had found against the minor on all points, and the court of appeals had affirmed its findings. The Texas Supreme Court ordered the case sent back again to the trial court, but was badly split on the reason. Four justices, comprising the more liberal wing of the court, would have outright reversed the lower courts= judgment and authorized the minor to have an abortion without notice. Three justices, comprising the more conservative wing, would have outright affirmed the lower courts= decision, denying the abortion. The outcome was thus determined by the position of two justices in the middle B with Justice Gonzales writing the controlling opinion, joined by Chief Justice Phillips. Justice Gonzales=s opinion on the one hand sided with the conservative wing in finding that the minor had not satisfied the statutory standards as a matter of law; but on the other hand, Gonzales concluded that, Ain the interest of justice,@ the case should be sent back to the trial court because the trial court=s decision had come just two business days after the Court=s opinion in Jane Doe 1, setting the applicable standards. This position, joined with that of the four liberals who would have granted the abortion outright, supplied the disposition of the case: that the minor would at least have another chance to show that the court should authorize an abortion. Justice Gonzales=s opinion first discussed the standards of appellate review for lower courts= denial of judicial-bypass abortion. Following Jane Doe 1, Gonzales wrote that lower courts= determinations concerning whether a minor is mature and well informed are Areviewed for legal and factual sufficiency.@ Gonzales held that the same deferential standard should apply to lower court determinations on the question whether parental notification may lead to physical or emotional abuse of the minor, because it similarly Ainvolves fact finding.@ Gonzales wrote that the minor bears the burden of proof, so that in order to reverse a lower court ruling against an abortion without notice, a reviewing court must find not only that there was no sufficient evidence to support the trial court=s ruling but that the minor is affirmatively entitled to judgment as a matter of law B a very strict standard. The evidence Amust be such that reasonable minds can draw only one conclusion,@ Gonzales wrote. AThere must be no evidence of probative force to raise a material fact question.@ (Emphasis added). Thus, to reverse, A[t]he evidence also must 19

be undisputed and conclusive that Doe was mature and sufficiently well informed or that notification may lead to her abuse.@ Applying these principles, Justice Gonzales concluded that there was evidence to support the trial court=s judgment. He noted that Athere was little evidence that Doe understood the alternatives to abortion and their implications or that she had thoughtfully considered her alternatives, including adoption and keeping the child.@ In addition, ADoe=s testimony did not establish as a matter of law that Doe was aware of the emotional and psychological aspects of undergoing an abortion.@ On the issue of potential emotional abuse if a parent were notified, Justice Gonzales wrote that there must be Aevidence in the record of some character that notification may lead to serious emotional injury. Mere evidence that the minor would be upset or have short term feelings of guilt or anxiety would not establish emotional abuse.@ Reviewing the record, Justice Gonzales found that A[t]he scant direct evidence from Doe, combined with reasonable inferences, might be sufficient to support a finding on this issue in favor Doe, if that were our task. But the trial court failed to find the facts in Doe=s favor on issues she had the burden to prove. Before we can overturn a fact finding against Doe and render judgment, we must be able to hold that she conclusively established that notification may lead to emotional abuse.@ Here, Gonzales wrote, the evidence failed to establish such facts. AWhile it might be tempting to lower the standards for disregarding fact findings due to the sensitive nature of the subject matter, there is no justifiable basis for doing so in these proceedings.@ Nonetheless, Gonzales concluded that the case should be remanded to the trial court, since it had issued its original ruling only two days after Doe 1, and the record showed that the minor had Apresented her application without the benefit of that opinion=s instruction.@ As noted, the four justices in the more liberal bloc of the court would have found in favor of the minor, and reversed the judgments below. The three justices in the more conservative bloc would have held that no remand was warranted, because the minor had failed to satisfy the statutory standards. The liberal bloc criticized Gonzales=s interpretation of the statute, and deference to the lower courts= findings. The conservative bloc harshly attack the liberal bloc, but also expressed concern with the Gonzales opinion=s too-great readiness to remand for further proceedings, given that, under the standards announced, the minor=s evidence could not be sufficient to satisfy them. Justice Gonzales=s opinion was a classic Asplit-the-difference,@ middle-of-the-road decision. Gonzales=s explication of the governing legal standards was clearly very sound, and reached essentially the same conclusion as the three more conservative justices on the court. Moreover, his statement of the deferential standards for appellate review also aligned him with the conservative wing of the court, and seems clearly correct. The contrary position of the four more liberal members of the court was correctly labeled by the conservatives as Aactivist@ in its willingness to reverse lower court fact-findings and enter judgment. The sole point of disagreement between the Gonzales opinion and that of the dissenters was in its willingness to allow the minor a chance to try again with the trial court B a result in which the liberal bloc 20

joined, as a second-best alternative (in their minds) to an outright ruling that the minor could go ahead with the abortion. Gonzales=s decision to remand the case is one on which reasonable people could differ, under the circumstances. It is certainly no strong indicator of pro-abortion sympathies. Rather, it shows inclinations in the direction of Acompromise@ dispositions and proceduralist solutions. Gonzales=s emphasis on deference to lower court factual judgments, and his unwillingness to authorize liberal appellate court second-guessing of such judgments, is solidly conservative in its jurisprudential premises. There is only one difficulty with this approach, however, as it concerns Gonzales=s judicial philosophy: a strong case can be made that, were he to faithfully follow those principle, it should have led him to rule against reversal of the lower courts= factual determinations in the second round of the In re Jane Doe 1 (II) case. At the time of Justice Gonzales=s opinion in Jane Doe 3, he had just voted to authorize the abortion in Jane Doe 1, but not yet joined and written opinions attempting to explain that vote. The abortionauthorizing order of the Court in Jane Doe 1 (II) came on Friday, March 10. The opinions in Jane Doe 3 were released on Monday, March 13 (and certainly were well along in the drafting process before then, if not already completed). As we have seen, the explanations offered in Jane Doe 1 (II) are rather strongly discordant with Gonzales=s opinion in Jane Doe 3. It is hard to reconcile Gonzales=s statements of great deference in Jane Doe 3 with his vote to authorize the abortion in Jane Doe 1 (II). It is difficult to know exactly what to make of this conflict. As already noted, Justice Gonzales=s vote and opinion in Jane Doe 1 (II) are not defensible on their own terms. Gonzales=s Jane Doe 3 opinion only makes the conflict all the more clear: the decision to reverse the lower court=s denial of an abortion-without-notice in Jane Doe 1 (II), given the ample record evidence supporting the trial judge=s decision (which the intermediate appellate court had unanimously affirmed) B evidence set out at great length in the dissenting opinions of Justices Hecht, Owen, and Abbott in the Jane Doe 1 (II) case, simply cannot be squared with Gonzales=s judicialrestraint rhetoric and ruling in Jane Doe 3. Recall that Justice Owen had hinted broadly in her Jane Doe 1 (II) dissent about a failure of the deliberative process in that case, and indicated that there was more that could be said but that needed to be left unsaid because of rules about confidentiality in the court=s deliberations. Justice Owen had also noted the inevitability that the majority, having authorized the abortion, would not issue final opinions concluding that it had done so in error. Was she referring specifically to Alberto Gonzales=s vote? Recall also that part of Gonzales=s defense of his vote in Jane Doe 1 (II) was that the court had upheld lower courts= decisions to deny judicial-bypass abortions most of the time. Recall also his hand-wringing disclaimer that he did not necessarily agree with the policy that he stated he was constrained to apply as a faithful judge. All of this leaves a confusing picture, and invites speculation. Is Alberto Gonzales, by temperament, inclined to Asplit-the-difference@ and abjure decision according to consistent, coherent principle? Was he somehow Aasleep at the switch@ in Jane Doe 1(II) and then felt the need to rationalize that aberrant vote after-the-fact? None of the possible explanations is very flattering. In the end, the only reliable conclusion is that Gonzales=s opinion in Jane Doe 3 was 21

sensible, centrist, and eminently plausible, but that his vote and opinion in Jane Doe 1 (II) was unprincipled and legally indefensible, given the views expressed in Jane Doe 3 and the other abortion opinions he had joined. In re Jane Doe 4 (I) and (II) In re Jane Doe 4 B a case that came before the Texas Supreme Court twice B completes the tour of Alberto Gonzales=s abortion decisions. On March 22, 2000, Gonzales joined a majority opinion vacating a lower court=s ruling denying a minor a judicial-bypass abortion and ordering the case remanded for reconsideration. The majority found that Doe had presented very little to support her claim that she was sufficiently mature and well informed, but because her hearing had come on the same day that the Court=s decision in Jane Doe 1 had first interpreted the standards applicable to such a claim, the case should be remanded Ato afford Doe an opportunity to present evidence that she is >mature and sufficiently well informed= in light of Doe 1.@ Doe had also claimed, in the alternative, that notification of either parent would not be in her best interests. The majority again remanded, noting that the new standards for deciding such claims had been issued in Jane Doe 2. Again, the minor in Doe 4 had not had the benefit of Doe 2: ANeither 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.@ Justices Hecht, Owen, and Abbott dissented. Hecht=s dissent noted that, in all five cases to have come before the Court to date on appeal from lower courts= denial of a judicial-bypass abortion, the Court had reversed the denial, sometimes remanding and once authorizing the abortion itself. His dissent crystallized the core of the disagreements between the dissenters and the majority in all of the cases: Unfazed, the Court continues on its course of setting aside every denial of a minor=s application for an abortion without parental notification. It is not that the lower courts are persistently wrong. The basis for the Court=s five parental notification decisions is the majority=s deep-seated ideology that minors should have the right to an abortion without notice to their parents, free of any significant restriction. The existence and force of that ideology are evident in two elements present in every one of the Court=s five decisions. First, the Court has steadfastly refused to give trial courts= fact-findings the deference they would command in any other context. The reason for this lack of deference is that the Court intends to act as the trial court in these cases, even though it cannot see or hear the witnesses or assess their credibility. The Court refers to this unique procedure as Ameaningful appellate review,@ but what is most meaningful about it B indeed, what is unprecedented B is that five or six JUSTICES in an Austin courthouse are ensuring that minors throughout the State, sight unseen, can obtain abortions without telling their parents. Second, the Court has simply refused to 22

acknowledge that the Legislature=s purpose in adopting the Parental Notification Act was to make it harder, not easier, for minors to obtain abortions without parental notification. Surely no friend or foe of the legislation who struggled through the two legislative sessions that it took to pass the statute had any idea that it would actually facilitate teenage abortion, yet that is how the Court has construed it: no application is to be denied. The Legislature=s plain purposes in adopting the Act were to protect parents= rights to raise their children and to discourage teenage pregnancy and abortion. JUSTICES of this Court may disagree with legislative policy B and with respect to parental notification they very definitely do B but they may not substitute their views for the Legislature=s. As I have already observed: ATo substitute judicial intent for legislative intent, and Supreme Court findings for trial court findings is judicial activism.@ That activism continues. Justice Owen=s dissent was joined by the other two dissenters. She objected to the majority=s decision to order a remand, notwithstanding the fact that the majority had found no error in the judgment below: AThe Court does not and cannot find error in the trial court=s judgment or in the court of appeals= judgment affirming it, but the Court nevertheless remands this case for another hearing.@ Yet more fundamentally, Justice Owen Adisagree[d] that this Court has the authority, statutory or otherwise, to decide that parents will not be permitted to exercise their right to withdraw support from their children when those children become adults in the eyes of the law. If parents strongly disapprove of the conduct of their children when they were minors, parents are entitled to determine that there will be consequences when the children attain majority. While it is my fervent hope that no matter what the transgressions of the child have been, no parent would sever all contact with an adult child, it is not the business of courts to interject their own values into the lives of the citizens of this State.@ On remand for reconsideration under Doe 1 and Doe 2, the trial court again denied the abortion. In In re Jane Doe 4 (II), the Texas Supreme Court unanimously affirmed, in a brief opinion finding that Athe trial judge could have reasonably found that Doe was not sufficiently well informed@ and that Doe had Anot established the contrary as a matter of law.@ The court also found that Awe cannot say that the trial court abused its discretion in failing to find that a judicial bypass was in Doe=s best interests.@ Justices Hecht, joined by Justice Owen concurred in the judgment only, criticizing the majority=s review of the record and its intimations that the decision of the trial court was anything other than clearly correct. In the end, however, the outcome in Jane Doe 4, agreed to by the entire court, was that the trial court=s findings on remand were respected. The Court declined to reverse and authorize an abortion. Gonzales did not write in either Doe 4 case, and the opinions add little to the view of Justice Gonzales=s jurisprudential philosophy and impulses supplied by the other cases. ***** 23

A few months after the series of Jane Doe cases was decided between February and June of 2000, Governor George W. Bush was elected President of the United States. President Bush asked Alberto Gonzales to come with him to the White House as Counsel to the President, where he served throughout Bush=s entire first term, becoming Attorney General at the beginning of President Bush=s second term.

Conclusion It is hard to compress the six Jane Doe cases into a tight, precise Aexecutive summary@ without sacrificing some accuracy and nuance. Yet, in broad strokes, the cases paint the following picture of Justice Alberto Gonzales: In the Texas abortion cases, Gonzales consistently favored generally more liberal constructions of the scope of the judicial-bypass route for minors to obtain abortions without parental notice, but in one case (Doe 3) adopted a more centrist stance than the more liberal bloc would have embraced. In one of those cases (Doe 1), the majority=s interpretation of the statute (which Gonzales joined) was at least plausible, even if the dissenters probably had the better interpretation. In another (Doe 2), the majority=s interpretation (which Gonzales joined) was almost certainly wrong, and had the effect of substantially frustrating the legislature=s purposes. In a third (Doe 3), Gonzales=s interpretation, and principles for judicial review, seem clearly right, and departed from the view of the liberal bloc. In addition, Justice Gonzales consistently favored remanding cases to lower courts, for reconsideration in light of the Court=s newly announced standards in Doe 1 and in Doe 2, concerning interpretation of the statute. He joined such results in Doe 1, Doe 2, Doe 3, and Doe 4. He consistently supported, in concept, deference to lower courts= findings of fact and ultimate determinations. However, following remand, two of these same cases came before the Court again. In one of the cases (Doe 4 (II)), he voted with a unanimous court to affirm the trial court=s denial of a judicial-bypass abortion. In the other Doe 1 (II), he supplied the critical fifth to overturn the trial court=s determinations and to authorize an abortion without parental notice. The Doe 1 (II) decision was procedurally questionable, inconsistent with Gonzales=s stated principles of deferring to lower court factual determinations on these questions, inconsistent with his controlling opinion in Doe 3, unjustifiable under any conception of Ajudicial restraint,@ and indefensible on first principles. His separate concurring opinion in that case, attempting to justify his vote on principles of judicial restraint and the requirements of the judicial role, is utterly in conflict with his actual disposition of the case at hand. His explanation seems intellectually dishonest. His accusation that the position of the dissenters in that appeal constituted Aunconscionable judicial activism@ was completely out of place, and grotesquely unfair. What is one to make of all this? What do the Texas abortion cases reliably tell us about Judge Gonzales=s judicial philosophy generally, his legal views on abortion, and his likely conduct as a U.S. Supreme Court justice? One cannot be absolutely sure, but certain conclusions seem warranted. First, it is plain that Alberto Gonzales does not have a generally pro-life 24

disposition on matters of abortion law. On matters where the law was ambiguous, and competing interpretations fairly arguable, he did not choose the more life-protective interpretation. (Doe 1). Indeed, on one such issue of statutory interpretation, not to embrace the more pro-life interpretation was clearly wrong as a matter of straightforward principles of statutory construction. (Doe 2). Instead, Gonzales more often joined the more liberal wing of the Texas court in embracing interpretations favoring liberalized abortion for minors, in circumstances where such results clearly were not dictated by U.S. Supreme Court precedent, and indeed where U.S. Supreme Court precedent ran strongly in the opposite direction. To be sure, Gonzales=s opinions are not demonstrably pro-abortion, and the interpretations of the statute that he embraced were at least sometimes defensible. (Doe 1, Doe 3, and Doe 4), but the fact remains that Gonzales did not as a rule resolve state law ambiguity in favor of protection of fetal life or the involvement of parents in a minor=s decision to have an abortion, even in circumstances where the Supreme Court=s decisions in Roe and subsequent cases clearly would have permitted such a result. Second, as a judge in these cases, Alberto Gonzales displayed a tendency to seek politically middle-of-the-road or Asplit-the-difference@ outcomes, even when such outcomes seemed to run counter to strict legal principles B including principles he had embraced in other opinions. These tend to indicate that his commitment to those principles is episodic and unreliable. His judicial disposition tended more to be one of a case-by-case Abalancer@ (or even, one might say, a Aticket-splitter@), sometimes ruling against abortions and sometimes ruling for them. His conception of judicial restraint and judicial role, at least as illustrated by these cases, consists of such centrist, accommodating balancing. His does not appear to be a judicial philosophy that consistently applies clearly-thought-out, strictly-applied legal first premises. Gonzales=s opinions in the abortion cases also sought out compromise dispositions based on procedural points B like the consistent practice of returning cases to lower courts for reconsideration in light of the Texas Supreme Court=s new interpretations, in order to afford the minor seeking the judicial bypass abortion a fair opportunity to benefit from the new standards. Such a proceduralist disposition can be seen as sensitive to concerns of procedural fairness and regularity. Similarly (in some respects), Gonzales preferred to dispose of judicial-bypass appeals through stated procedural standards of deference to lower court determinations (though he was not consistent in applying these standards). Third, and finally, while Alberto Gonzales=s opinions in the abortion cases frequently spoke in the language of judicial restraint and deference to legislative policy choices, his actual disposition of the cases did not cohere very well at all with his rhetoric. To put it colloquially, Justice Gonzales Atalked the talk@ of conservative principles of judicial restraint, but he did not consistently Awalk the walk@ of fairly putting those principles into practice in resolving the cases. Indeed, some of the most pointed Atalk@ of judicial restraint was directed, improperly, at the more conservative justices whose opinions and votes were far more consistent with the principles Gonzales espoused than his own decisions and opinions were. In short, from the standpoint of legal conservatives, the abortion jurisprudence of Alberto 25

Gonzales, as illustrated by these six abortion cases decided in 2000, is a poor fit with the principles that President George W. Bush has said are most important for him in appointing federal judges, and especially in appointing Supreme Court justices. All indications are that he would not be a Astrict constructionist@ (to use President Bush=s term) but a moderate-politicianbalancer, a justice less in the mold of an Antonin Scalia or Clarence Thomas, and more in the mold of a Sandra Day O=Connor, Anthony Kennedy, or even David Souter. From the standpoint of pro-life conservatives, these cases are even more cause for legitimate concern. There is every reason to believe (based on these cases) that Alberto Gonzales would be inclined to reaffirm Roe v. Wade, on the basis of a conception of the judicial role that shares much in common with the conception set forth in the Joint Opinion (of Justices Kennedy, O=Connor, and Souter) in Planned Parenthood v. Casey in 1992: concern for occupying the political middle ground, attempted compromise, concern for public perceptions of the courts and the judges, and adherence in general to past precedent, whether or not in accord with what the judge would conclude is correct as a matter of first principles. There is, of course, much to be praised in Alberto Gonzales=s performance as White House Counsel and as Attorney General. In particular, there is much to be praised in the way that the administration, under Gonzales=s influence, has sought out and appointed many judges who are undoubtedly committed to solidly conservative legal principles. But Gonzales might be playing the role of loyal lawyer and politico, skillfully and faithfully carrying out President Bush=s agenda. Does Alberto Gonzales himself share the same rigorously conservative judicial philosophy and principles to the same degree as those men and women he has had an important role in appointing to the federal bench B men and women like John Roberts, Michael McConnell, Priscilla Owen, and Janice Rogers Brown? Unfortunately, the evidence of Gonzales=s decisions as a justice of the Texas Supreme Court tends to suggest that he does not.

Michael Stokes Paulsen is the McKnight Presidential Professor of Law & Public Policy, and Associate Dean for Research and Scholarship, at the University of Minnesota Law School. He served as Attorney-Advisor in the Office of Legal Counsel of the U.S. Department of Justice in the administration of President George H.W. Bush, from 1989-1991.

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