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Alberto Gonzales and Priscilla Owen

By Robert S. Sargent, Jr.
web posted Janary 27, 2003

We know that White House Counsel Alberto Gonzales, when he was on the Texas Supreme Court, was on one side of the issues in a series of four abortion-related "Jane Doe" cases between February and June 2000, and federal appellate nominee Priscilla Owen was on the other. Pro-choice groups have tried to use this to demonstrate that Justice Owen is anti-abortion while pro-lifers have tried to use this to demonstrate that Justice Gonzales is too liberal. What were the issues?

Jane Doe, a teenager, asked the courts to let her bypass the Texas Parental Notification Law, and have an abortion without telling her parents. The relevant part of the statute (33.003, paragraph i) says: "The court shall determine by a preponderance of the evidence whether the minor is mature and sufficiently well informed to make the decision to have an abortion performed without notification to either of her parents or a managing conservator or guardian, whether notification would not be in the best interest of the minor, or whether notification may lead to physical, sexual, or emotional abuse of the minor. If the court finds that the minor is mature and sufficiently well informed, that notification would not be in the minor's best interest, or that notification may lead to physical, sexual, or emotional abuse of the minor, the court shall enter an order authorizing the minor to consent to the performance of the abortion without notification to either of her parents ...and shall execute the required forms."

White House Counsel Alberto Gonzales Priscilla Owen
Gonzalez and Owen

The lower court denied Jane Doe's application on the grounds that she didn't qualify under statute 33.003 to bypass notification, but the Texas Supreme Court with Justice Gonzales writing the majority opinion, overturned the lower court. Justice Owen, who wrote the dissent, wrote that her problem was "…from the methods employed by the Court in rendering that judgment." She said of the majority: "One 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. Until today, it had been well-settled 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."

Justice Owen goes on to analyze Jane Doe's statements and how they apply to the statute. The combination of the "methods of the Court," and her application of the law makes her opinion convincing.

Justice Gonzales, in his opinion, states: "…the duty of a judge is to follow the law as written by the Legislature…. 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 (my emphasis) to discern what the Legislature actually intended." Justice Gonzales, like Justice Owen, analyzed Jane Doe's statements and how they applied to the law. I emphasized, "do our best" because a re-reading of the statute shows that there can be all kinds of interpretations of the law, and reading their opinions convinced me that they both did their best to interpret the law.

I understand the Texas legislature is going to re-write the law to be more specific about what words and phrases like "mature," "sufficiently well informed," what's in the "best interest of the minor," and "emotional abuse," really mean. Until then, it's understandable that there are differences of opinion between two good judges, and like good judges, their personal views on abortion are irrelevant.

I'm convinced that conservatives need to stop worrying that Gonzales will be to son Bush what Souter was to dad Bush. Can you imagine Souter saying and believing these words from Alberto Gonzales: "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."?

Both of these nominees will make fine judges.

Robert S. Sargent, Jr. can be reached at rssjr@citcom.net.

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