Terry Jeffrey

When George Bush first ran for president, he said he would name "strict constructionists" to the Supreme Court, citing Antonin Scalia and Clarence Thomas as models.

 Now, Attorney General Alberto Gonzales is being mentioned for a vacancy. But is he like Scalia and Thomas?

 When In re Jane Doe, the first test of Texas's parental notification law, came to the Texas Supreme Court in 2000, then-Justice Gonzales sided against then-Justice Priscilla Owen, whom Bush later named a federal appellate judge.

 Doe, the 17-year-old daughter of pro-life parents, sought an abortion. The law required she first notify her parents unless she could secure a judicial bypass, which the law allowed if (among other reasons) she could demonstrate she was "mature and sufficiently well-informed" to make the decision without notifying them.

 Doe explained to a judge: "Well, for me I feel if I were to have the child, my parents, they would be slightly upset to actually know that I became pregnant and they are very against abortion. … And I don't favor the adoption. I know it could be done, but if I were to go nine months having this child, I would feel to keep it."

 The judge decided she was not "sufficiently well-informed." An appeals court agreed. The majority of the Texas Supreme Court -- including Gonzales -- also agreed.

 Yet, the court remanded Doe's case for a second hearing, because, in determining she did not merit a bypass, the court also ruled on: the standard of review appellate courts should use in determining whether a trial court had ruled correctly on a bypass, and which factors trial courts should consider in determining whether a teenager was "mature and sufficiently well-informed." The majority decided to give Doe another chance under the new rules it had written in these areas.

 In the first, the court said a "legal and factual sufficiency" standard applied: If there was evidence supporting the trial court's judgment, an appeal should uphold it.

 In the second, the court cited three questions the judge should weigh, including whether the teenager understood the health risks of abortion, whether "she has given thoughtful consideration to her alternatives, including adoption and keeping the child," and whether she is "aware of the emotional and psychological aspects" of abortion.

 Justice Owen agreed with the standard of review, but argued the court set a lower hurdle for "sufficiently well-informed" than the legislature intended or the U.S. Supreme Court would allow.

Terry Jeffrey

Terence P. Jeffrey is the editor-in-chief of CNSNews

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