by JOHN COUNCIL
Two months ago, Texas family lawyers and judges began making calls on a controversial area of law that few of them want to deal with – the judicial bypass provision of the new parental abortion notification statute.
Under the law, which took effect Jan. 1, physicians performing an abortion on a minor are required to notify parents of the procedure, unless the girl can win approval not to inform her parents from a judge.
The law requires quick action by judges performed at a level of secrecy not found anywhere else in Texas’ judicial system, experts say.
The law’s strict requirements also have the Texas Supreme Court struggling to give guidance to state trial courts.
The high court has issued two opinions in as many months on the subject – and more are expected. But many family lawyers and judges are still scratching their heads over how best to deal with the burdens the law places on them.
Some of the practical questions yet to be addressed by the Supreme Court include: How do you pull a young woman out of school for a court hearing without her parents finding out? How is a judge supposed to drop everything on a busy docket to deal with a notification case that, by law, must take top priority? And is justice served by keeping a legal proceeding completely confidential?
For now, parental notification cases are being met with extreme reluctance by some who practice family law.
“There’s enough intrusion of the family courts into families’ lives,” says Kenneth Raggio, a Dallas family attorney. “This is viewed as putting more on a court’s plate than there needs to be. But once again, it’s the court’s job to enforce the law.”
Young women seeking a notification ruling from a judge either show up with a lawyer ad litem or have one appointed by a judge. But according to lawyers familiar with the process, a judge usually also appoints a guardian ad litem if the minor hasn’t selected her own. Few lawyers want the guardian ad litem’s job of trying to advocate what’s in the best interest of the minor in a notification case.
“There is more than some discomfort with it because it’s more than a family law deal,” Raggio says. “It’s a moralistic thing that’s been put under the district court.”
Because the law takes into consideration that a pregnant girl can’t wait endlessly for a court to decide her case, trial and intermediate appellate courts are required to issue decisions on notification cases within two days of a filing in their respective courts. That means a lawyer could go from arguing a case before a trial court to filing an appeal before the Texas Supreme Court within one week.
And in big cities where specialized family courts work overtime just dealing with divorce and child-custody cases, notification cases are viewed by some judges as a task that makes their jobs even more difficult.
“It hits your docket and kills it,” says Susan Rankin, family court judge of Dallas’ 301st District Court, commenting generally about notification proceedings. “Just imagine it’s 10 o’clock in the morning and you’re running your docket and you have to step off the bench for an hour and handle a notification case. You have to call an ad litem. You can’t send the name of the client. . . .”
If the judge is in the middle of a jury trial, the secrecy provisions of the law are such that the judge can’t even explain to a jury that they’re taking a break to handle a notification case. All parental notification cases are essentially sealed.
“You might as well be doing your nails in your chambers for what the juries are thinking,” Rankin says. “It’s just a different duck and quite frankly I hope it goes away. But I don’t think it will.”
Collyn Peddie, a lawyer with Houston’s Weil, Gotshal & Manges, is the first attorney in Texas to handle a parental notification case decided by the Texas Supreme Court.
In the high court’s Feb. 25 decision in In Re Jane Doe, which Peddie appealed, her client sought a judicial bypass of the notification law partly because her parents opposed abortion. The trial court and the appellate court did not grant her client relief.
The high court’s decision remanded the case for further hearings, ruling that the trial court must make three findings in notification rulings, including: whether the minor has obtained information from a health care provider about the risks of abortion; whether the minor understands and has given consideration to the alternatives of abortion; and whether the minor is aware of the emotional and psychological impact of undergoing an abortion.
“There’s still a million questions left over,” Peddie says. For example, Peddie says there is no valid science on the emotional impact of abortion and questions whether a court should include that as a standard in its judgment. Abortion opponents are adamant that there is a scientific link.
Peddie is part of a group of lawyers in Houston trained to handle such cases and get referrals from Planned Parenthood. Yet Peddie was nevertheless surprised by some aspects of the notification process at the trial court level.
The law allows a judge to also appoint an attorney ad litem to serve as a guardian ad litem for the minor, Peddie says. But that’s never happened in the cases she’s aware of in Houston.
“In some instances, there have been [guardians] appointed in whole or in part to provide a countering view to a pro choice view,” Peddie says. “And that has come as a surprise.”
Yet in the Supreme Court’s fractured Feb. 25 decision on the issue, a concurring opinion written by Justice Craig Enoch and joined by Justices James Baker, Deborah Hankinson and Harriet O’Neill noted that they were troubled by the notification proceeding, which they found “non-adversarial.”
“This proceeding is not only “non-adversarial,” but notice to the very persons (besides the minor) likely to have the most interest in the outcome of the hearing – the parents who stand not to be notified of their minor child’s decision – is prohibited,” Enoch wrote. Such a proceeding should require an “abuse of discretion” standard of review, he wrote in the concurrence.
In a second March 7 opinion on the same subject, In Re Jane Doe 2, Enoch wrote for the majority that an “abuse of discretion” standard should be applied when determining what is in the best interest of the child.
But in Doe 2, the high court passed on determining the constitutional issues of the law, even though the trial court judge found the law unconstitutional on three grounds: that the two-day deadline infringed on the judicial function and violates the Texas Constitution’s separation-of-powers clause; that the confidentiality provisions violate the constitution’s open courts provision; and that the bypass provision’s two-day time period violates fundamental due process.
The high court declined to hear those issues because the trial court had raised them sua sponte without the benefit of argument or briefing, according to the opinion.
The Supreme Court issued the rules on parental notification cases in December. Since then, Bob Pemberton, the Supreme Court’s rules attorney, has been working on another advisory that may be published within the next few weeks.
“Mainly, we’ve tried to comprehensively deal with the issues that came up during the drafting of the rules,” Pemberton says, “and then take into account any intervening Texas decisions.”
That’s like trying to hit a moving target, he adds.
Yet the rules cannot address issues such as the secrecy provisions, which some consider unconstitutional, Pemberton says. That’s an issue that should be decided in an adversarial court proceeding, he says.
Even though notification cases are supposed to be secret, the Supreme Court is leaving open the option of publishing even more Jane Doe opinions in the hopes they will guide the lower courts, says Supreme Court Justice Greg Abbott.
“I can’t predict what’s going to happen in the future, but the law has many different aspects to it,” Abbott says. “There’s always the possibility that we will have to issue more opinions on the issue concerning the legislation or the rules.”
Body of Law
To protect the identity of the minor seeking the abortion, lawmakers crafted the law so court documents pertaining to notification proceedings are deemed confidential and are not subject to discovery under the Public Information Act.
Intermediate appellate courts are not even required to write opinions on notification cases, says Ann Crawford McClure, a justice on El Paso’s 8th Court of Appeals who chaired a subcommittee charged with writing the parental notification rules.
“For me personally, it bothers me tremendously,” says McClure who joined a minority report opposing confidentiality. “I don’t think we should be operating in secret court proceedings. One of the comments was that it’s almost tantamount to a star chamber.”
Generally, a lawyer and the judges who hear the case are the only parties privy to the decision. Some legislators were adamant about keeping the hearings private and did not want to reveal the names of the judges involved. Lawmakers said that provision was added to shield judges from outside influence.
“There was some concern of the judge’s identity not being known because we didn’t want there to be a political ramification,” says state Rep. Steve Wolens, D-Dallas, who helped guide the parental notification law through the House of Representatives.
But some family law experts question how a body of law can develop if other lawyers and judges can’t see how decisions are made in other jurisdictions.
“We never thought about that aspect of it,” Wolens says. “Perhaps we should have thought about it.”
The Supreme Court’s decision in the first Jane Doe opinion leaves open the possibility that the secrecy provisions of the law could be challenged in the future.
“We note that we are not called upon to express an opinion about the constitutionality of the provisions of the Family Code that prohibit the lower courts from making their rulings publicly available,” wrote Chief Justice Thomas R. Phillips in a majority opinion. “Those questions must be decided another day.”
The conservative Texas Justice Foundation filed an amicus brief last week in the first Doe case challenging the secrecy of the judicial bypass provision on behalf of parents who want to be informed of such proceedings.
And although a formal challenge to the law’s secrecy provision has not yet been filed, the issue is ripe for a challenge, says Rob Wiley, president of the Freedom of Information Foundation of Texas and a partner in the Houston office of Locke Liddell & Sapp.
The goal of that challenge should be balancing the interests of open government with the privacy consideration of the minor seeking an abortion, Wiley says.
Notes Wiley: “The point is so people who are interested in how judges handle these cases have some way of determining whether the system is working and whether they’re following the law instead of imposing their own views on this issue no matter what they might be.”
Copyright 2000, Texas Lawyer. All rights reserved.
(published March 13, 2000)