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

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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

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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

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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

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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

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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

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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

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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

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 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

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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.

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 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 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.@

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 abortion-
authorizing 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 judicial-
restraint 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

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 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.

*****

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 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

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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

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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-politician-
balancer, 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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