Doe had a second hearing. The judge listened to her again and determined that under the new rules she still was not sufficiently well informed. The appeals court again agreed.
Now, the Texas Supreme Court majority, including Gonzales, disagreed. It ruled that Doe -- entering her 15th week of pregnancy -- could get an abortion without telling her parents.
Had Doe become "sufficiently well-informed" between the court's two decisions? Did no evidence support the trial judge?
Then-Justice Greg Abbott, now Texas attorney general, argued in dissent that the court's "analysis and conclusions depart from the true intent of the Legislature." He cited a brief filed by 56 Texas legislators, including the law's sponsors. It said: "In order to achieve the legislative goal, it is important that a minor be required to show that she has received information from a disinterested and reliable healthcare provider who is not involved in abortion advocacy … or that she has received information from multiple sources, at least one of which expresses a preference for childbirth over abortion."
"Prior to the hearing on remand," Justice Nathan Hecht noted in dissent, "Doe returned to Planned Parenthood and spoke with an unlicensed counselor for about one-and-one-half hours and with a physician for about 15 minutes. ... The only other person she talked with after the first hearing was a teacher at school who counsels pregnant students."
In a concurrence, Justice Gonzales wrote, "... there is no evidence supporting the trial court's finding that Jane Doe was not sufficiently well informed."
Owen issued a scorching dissent. "Doe 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," she said.
"The question in this case is not whether this Court would have ruled differently when confronted with all the evidence that the trial court heard," said Owen. "The question is whether legally sufficient evidence supports the trial court's judgment. The answer to this latter question is yes.
Longstanding principles of appellate review and our Texas Constitution do no permit this Court to substitute its judgment for that of the trial court and or to ignore the evidence, as it has done."
Would the next Scalia or Thomas have concurred with Gonzales? Not a chance.