Judicial Snag on choice.(COMMENTARY)

The Washington Times (Washington, DC), July 23, 2002 | Go to article overview

Judicial Snag on choice.(COMMENTARY)


Byline: Terry Eastland, SPECIAL TO THE WASHINGTON TIMES

The Texas Supreme Court has decided 12 cases under the 1999 Parental Notification Act. One that proved especially contentious for the justices was handed down June 22, 2000. It was styled, for reasons of privacy, as "In re Jane Doe." The case no doubt will come up today, when the Senate Judiciary Committee finally takes up the nomination of Priscilla Owen to the 5th U.S. Circuit Court of Appeals.

It will come up because in that case Alberto R. Gonzales, who then sat with Justice Owen on the Texas Supreme Court and now is White House counsel, wrote that to construe the statute narrowly "would be an unconscionable act of judicial activism." Mr. Gonzales joined the majority, while Ms. Owen was one of three dissenting justices.

Liberal interest groups opposed to her nomination have interpreted then-Justice Gonzales' words as applying to Justice Owen. They charge President Bush with a violation of his own principles:

He says he is opposed to activist judges, yet here - by the testimony of his own counsel - he has nominated one.

Groups that swear allegiance to Roe vs. Wade - the 1973 case announcing a constitutional right to abortion, which is arguably the most activist decision in the history of the Supreme Court - should be taken with a large grain of salt when they offer counsel on what is or is not judicial activism. As it happens, their anti-Owen reading of Justice Gonzales' words in In re Jane Doe is wrong.

Under the Parental Notification Act, a doctor may not perform an abortion on a minor unless at least one of her parents is notified first. The statute provides, however, that parental notification isn't needed if the girl is "mature and sufficiently well informed"; if notification wouldn't be "in [her] best interest"; or if notification "may lead to [her] physical, sexual or emotional abuse." The law authorizes courts to grant a minor's application to bypass notifying her parents.

In In re Jane Doe, a pregnant minor was denied a bypass by the trial court and then by the appeals court. The Texas Supreme Court disagreed and granted the bypass.

The opinions in the case mostly concerned how judges should go about interpreting the notification act. In a concurring opinion, Justice Gonzales felt compelled to respond to "the dissenting justices" who "suggest that exceptions to the general rule of notification should be very rare and require a high standard of proof. …

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