In Re Doe

Justice ENOCH,

joined by Justice

BAKER, concurring.

I agree with the Court’s opinion and Justice Gonzales’ additional concurrence. Therefore, I join both.

But I, also, must write separately to make another point. Long ago, I learned that the more my emotions influenced my decisions, the less I acted like a judge. A few years ago, Justice Hecht was so passionate about an issue that he branded his colleagues as dishonest. 1 And it is obvious from his strident dissents in all four Jane Doe cases that Justice Hecht has, once again, succumbed to passion. For he now brands his colleagues as “activists” and pro-abortionists. 2 He does this, not because there is truth to his charge, but simply because his passion overcomes reasoned discussion.

Justice Hecht’s attacks, although heated, are shallow. For example, he assails the Court’s decisions as “predetermined.” 3 Yet it is he who has taken only one position- — always deny. Further, he complains about the Court’s workload and rushed decisions, implying that this activity was otherwise unanticipated. 4 Yet it was he who recommended the Court rules, which follow the legislative enactment, that require the lower courts to decide Jane Doe cases within two business days. 5 As well, he knew this Court would similarly expedite these cases, even in the absence of that time stricture. Finally, Justice Hecht also excoriates the Court for its “judicial activism.” 6 Apparently, because he mocks his colleagues’ expression of their personal feelings about the issues in these cases, he believes that a judge is an activist if he or she refuses to succumb to those personal feelings. 7 Yet it is he who, through his dissents, exemplifies the dangers present when a judge acts on passion. I can only question how a judge’s commitment to the principle of judicial restraint can mean anything if, whenever he feels strongly about an issue, he also feels free to translate his personal beliefs into a judicial decision. I cannot otherwise explain the foundation on which his opinion rests, for in five dissents, he has failed to cite to any case from any other state interpreting a similar statute, even though several such statutes have been in operation for fifteen years or more.

Because of this Court’s continued concern for preserving confidentiality in these *363 matters, 8 I must also challenge Justice Hecht on his routine practice of revealing to the public “in complete detail” the minors’ testimony in these cases. 9 The hearings in these cases are to be confidential— a requirement this Court’s rules recognize, which Justice Hecht himself voted for in more dispassionate days. 10 Yet now he violates that rule, for no apparent jurisprudential purpose. What is more, his disclosures leave the Court in an untenable position. The Court cannot respond because to do so would require it to reveal whatever other pieces of the record remain confidential.

As an example, I note his writings in the Jane Doe 4 cases. In Jane Doe 4’s first appeal, Justice Hecht disclosed that the minor in In re Jane Doe 3 11 spoke to her mother about her situation instead of pursuing her case on remand. 12 But to what issue in In re Jane Doe k was the information about Jane Doe 3 relevant? None. Furthermore, the issue in Jane Doe 3’s case was never whether she would tell her mother. The question was what would happen when her mother told her father and her father became intoxicated. 13 As to that part of the story, the Court doesn’t yet know the ending and, because the proceedings are confidential, the Court wouldn’t reveal it in any event. Markedly, Justice Hecht agreed with the Court’s decision on Jane Doe 4’s second appeal. But he, once again, wrote separately to publish chapter and verse the minor’s confidential testimony. 14 It would appear that Justice Hecht intends nothing more than to punish, as best he personally can, minors for seeking a judicial bypass. Although the law promises them confidentiality, he promises them notoriety.

Finally, I end by recalling that Justice Hecht began his attack on his colleagues in the very first Jane Doe case. Without any factual basis, he launched two rhetorical broadsides, broadsides that he used to establish the themes for his dissents. Those broadsides are that this Court’s standard is so low that it is no standard at all, and that our standard opens the flood gates for judicial bypasses. 15 Today he reiterates his theme that the Court construes the Parental Notification Act “as liberally allowing minors to have abortions without involving their parents....” 16 But while to say a thing loud enough and long enough may convince some people to believe it, that does not make it true. And neither of his broadsides have proven to be true.

Several months have passed since Justice Hecht’s first attack and to date only four Jane Does have come before this Court. In this case, Jane Doe 1, the matter was remanded with instructions for trial courts on how to evaluate whether a minor is mature and sufficiently well in *364 formed. On return, the Court granted Jane Doe 1 a judicial bypass. Her second hearing, as the Court observes, lasted for hours and required her to testify in great detail.

The Court remanded Jane Doe 2⅛ case with instructions for trial courts on how to evaluate the best interest and abuse prongs of the judicial bypass. 17 Jane Doe 2 has not returned to this Court. I caution that we do not know whether the trial court on remand granted the bypass or whether Jane Doe 2 dropped her application.

But dropping her application is exactly what happened for Jane Doe 3, whose initial hearing occurred before the Court issued its instructions in Doe 1 and Doe 2, and whose case was remanded in light of those instructions. 18 Rather than continue with the effort to meet the standard for a judicial bypass that this Court actually requires, Jane Doe 3 notified a parent.

As for Jane Doe 4, whose case was also remanded to allow her to have a hearing according to the Court’s instructions, she returned to this Court but was denied a judicial bypass. 19 Like Jane Doe 1, her second hearing was lengthy and her testimony was detailed.

From the beginning, Justice Hecht’s charges were unsupported by any facts. Here in the middle, the facts are that the Jane Doe cases have appeared as the Legislature expected and the Court has disposed of them in the manner the Legislature expected. As for cases coming in a “flood,” they appear only to have come in the expected spurt. In the end, Justice Hecht’s explosive rhetoric will not have advanced the jurisprudential debate about the proper application of the Parental Notification Act. Instead, his intemperance has pushed political and social hot buttons that have discomfited citizens of this State and their elected officials, needlessly, with no opportunity to assess whether the Parental Notification Act was having its desired effect. 20

Now based on the facts that only time could reveal, it is plain that the statute, including the Court’s interpretation, is having its intended effect. Although the state cannot prohibit minors from obtaining an abortion, it can and has created a rule of law sufficiently impressing upon minors the seriousness of the abortion decision and that the State wants parents to be informed. From what the Court now knows, I venture an educated guess that what happened in the case of Jane Doe 3 is, in all probability, now the rule in Texas. Once a minor becomes aware of what she must go through to obtain a judicial bypass, she will choose for herself to involve her parents.

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.

Justice GONZALES, joined by Justice ENOCH, concurring.

I fully join in the Court’s judgment and opinion. I agree that there is no evidence *365 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.

Only in this, an appeal after remand of the first of four Jane Doe cases, has the Court granted a minor’s application to bypass notifying her parents before she consents to an abortion. 1 Yet in each case, the Court has struggled to render the correct decision, and some members of the Court have strongly disagreed. The tenor of the opinions have been unmistakably contentious. It has been suggested that the Court’s decisions are motivated by personal ideology. See 19 S.W.3d 367 (Hecht, J., dissenting). To the contrary, every member of this Court agrees that the duty of a judge is to follow the law as written by the Legislature. 2 This case is no different. The Court’s decision is based 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.

Legislative intent is the polestar of statutory construction. See City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex.1996). 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. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex.1999). We take the words of the statute as the surest guide to legislative intent. See id. at 866 . Once we discern the Legislature’s intent we must put it into effect, even if we ourselves might have made different policy choices. See id.

The starting point for understanding the Parental Notification Act is its provision that a medical professional may not perform an abortion on a minor without first notifying one of the parents. See Tex. Fam.Code § 33.003(a). The policy decision here is clear — 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. Instead, the Legislature created three exceptions, allowing a minor to avoid notifying her parents if she can show: (1) she is mature and sufficiently well informed to make the decision to have an abortion performed without notification of either parent, (2) notification of the parents would not be in the minor’s best interest, or (3) notification of the parents may lead to physical, sexual, or emotional abuse of the minor. See Tex. Fam.Code § 33.003(i).

The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof. I respectfully submit that these are policy decisions for the Legislature. And I find nothing in this statute to directly show that the Legislature intended such a narrow construction. As the Court demonstrates, the Legislature certainly could have written section 33.033® to make it harder to bypass a *366 parent’s right to be involved in decisions affecting their daughters. See 19 S.W.3d at 350. But it did not. Likewise, parts of the statute’s legislative history directly contradict the suggestion that the Legislature intended bypasses to be very rare. See id. at 352 (detailing legislative history). Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism. As 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. The Court said in Doe 1(1) that a minor must make at least three showings before she may exercise the bypass rights the Legislature gave “mature and sufficiently well informed” minors under section 33.003(i). In re Doe 1(I), 19 S.W.3d 249 (Tex.2000). These showings are to ensure that the minor can demonstrate the level of maturity and knowledge the Legislature seems to have intended when it passed a statute that primarily protects parental rights, but also confers judicial bypass rights to certain minors. Based on the evidence of Doe’s maturity and knowledge, I conclude the limitations upon parental rights in section 33.003(f) apply here. Therefore, I am compelled to grant Doe’s application.

It is important to appreciate that the Legislature adopted a statutory scheme that subordinates parental rights in the case of a mature and sufficiently well informed minor, even if the minor has an ideal relationship with her parents, and even if notifying the parents would not only not place the minor in emotional or physical danger, but may in fact be in her best interest. While 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. Justice Heoht charges that our decision demonstrates the Court’s determination to construe the Parental Notification Act as the Court believes the Act should be construed and not as the Legislature intended. See 19 S.W.3d at 373-74 (Hecht, J., dissenting). I respectfully disagree. This decision demonstrates the Court’s determination to see to it that we discharge our responsibilities as judges, and that personal ideology is subordinated to the public will that is reflected in the words of the Parental Notification Act, including the provisions allowing a judicial bypass.

Because the majority opinion correctly applies the Act as written to the facts in this record, I concur.

. Maritime Overseas Corp. v. Ellis, 977 S.W.2d 536, 537 (Tex. 1996) (Hecht, J., dissenting from denial of application for writ of error)(colleagues' votes "would have been different had they been public.”).

. In re Jane Doe 4 (Doe 4(1)), 19 S.W.3d 322 (Tex.2000)(HECHT, J. dissenting).

. Id. at 373 (Hecht, J., dissenting).

. See In re Jane Doe 2 (Doe 2), 19 S.W.3d 278, 291 (Tex.2000) (Hecht, J., dissenting); In re Jane Doe 3 (Doe 3), 19 S.W.3d 300, 310-11 (Tex.2000) (Hecht, J., dissenting); Doe 4(1), 19 S.W.3d at 330 (Hecht, J., dissenting).

. Texas Parental Notification Rules and Forms, Rules 2.5(d) and 3.3(c).

. See, e.g., Doe 4(1), 19 S.W.3d at 328 (Hecht, J., dissenting).

. See 19 S.W.3d at 328.

. See, e.g., Doe 3, 19 S.W.3d at 305 ; Doe 4(I), 19 S.W.3d at 323.

. See, e.g., In re Jane Doe (Doe 1(I)), 19 S.W.3d 249, 276 (Tex.2000)(HECHT, J., dissenting).

. Compare Texas Parental Notification Rules and Forms, Rules 1.3 and 1.4. with Doe 1(I), 19 S.W.3d at 277 (Hecht, J., dissenting), Doe 2, 19 S.W.3d at 290-91 (Hecht, J., dissenting), Doe 3, 19 S.W.3d at 309 (Hecht, J., dissenting), and Doe 4(1), 19 S.W.3d at 327 (Hecht, J., dissenting).

. 19 S.W.3d 300 (Tex.2000).

. See Doe 4(I), 19 S.W.3d at 327-28 (Hecht, J., dissenting).

. See Doe 3, 19 S.W.3d at 312 .

. See In re Jane Doe 4 (Doe 4(II)), 19 S.W.3d 337 (Tex.2000)(HECHT, J., concurring).

. See, e.g., Doe 1(I), 19 S.W.3d at 276 (Hecht, J., dissenting); Doe 2, 19 S.W.3d at 298 (Hecht, J., dissenting); Doe 3, 19 S.W.3d at 309 (Hecht, J., dissenting); Doe 4(I), 19 S.W.3d at 327-28) (Hecht, J., dissenting).

. See 19 S.W.3d at 368.

. See Doe 2, 19 S.W.3d at 284 .

. See Doe 3, 19 S.W.3d at 300 .

. See Doe 4(I), 19 S.W.3d at 327; Doe 4(II), 19 S.W.3d at 340.

. Clay Robison, Justice Blasts Colleagues on Texas Abortion Law, Houston Chronicle, March 23, 2000 at Al; Bruce Hight, High Court Bypassing Intent of Abortion Law, Senator Says, Austin American-Statesman, March 24, 2000 at Bl; Mary Alice Robbins, Court's Notification Standard Too Low, State Lawmaker Says, Amarillo Daily News, March 24, 2000 at 1A; Christy Hoppe, Abortion Again Fractures Court, Dallas Morning News, March 23, 2000 at A1; Maty Flood, Law Creates Confusion on Abortion, Wall Street Journal, March 22, 2000 at Tl; Bruce Hight, Abortion Cases Generate Friction on High Court, Austin American-Statesman, March 19, 2000 at A1; Connie Mabin, Family Bypassed as Court Allows Abortion, Fort Worth Star-Telegram, March 11, 2000 at 1 A.

. See In re Jane Doe, 19 S.W.3d 249 (Tex. 2000)(Doe 1(I) ); In re Jane Doe 2, 19 S.W.3d 278 (Tex.2000); In re Jane Doe 3, 19 S.W.3d 300 (Tex.2000); In re Jane Doe 4, 19 S.W.3d 322 (Tex.2000), appeal after remand, In re Jane Doe 4, 19 S.W.3d 337 (Tex.2000).

. See National Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525 (Tex.2000)(Baker, J.); Quick v. City of Austin, 7 S.W.3d 109, 135-36 (Tex.1999)(Hankinson, J., dissenting); Fleming Foods of Texas Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999)(Owen, J.); Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999)(Gonzalez, J.); Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.1999)(O’Neill, J.); In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 380 (Tex.1998)(Abbott, J.); Abbott Lab., Inc. v. Segura, 907 S.W.2d 503, 512 (Tex.1995)(Phillips, C J.); City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex.1995)(Hecht, J.); Bridge-stone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 135 (Tex.1994)(Enoch, J., dissenting).