In re Jane Doe

Page 346

19 S.W.3d 346 (Tex. 2000.)

In re Jane Doe

No. 00-0224

IN THE SUPREME COURT OF TEXAS

June 22, 2000

Appeal Under Section 33.004(f), Family Code

Reversed and rendered.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Justice O'Neill delivered the opinion of the Court, joined by Justice Enoch, Justice Baker, Justice Hankinson, and Justice Gonzales and by Chief Justice Phillips as to Parts II and III.

This is an appeal from an order denying a minor's application for a court order authorizing her to consent to an abortion without notifying a parent. After remand from this Court, see In re Jane Doe, 19 S.W.3d 249 (Tex. 2000) ("Doe 1(I)"), the trial court conducted another hearing and found that Jane Doe failed to prove by a preponderance of the evidence that she is sufficiently well informed to have an abortion without parental notification. The court of appeals affirmed. After reviewing the record, we determined that Doe conclusively established the statutory requirements and that she was entitled to consent to the procedure without notifying a parent. We issued an order on March 10, 2000, reversing the court of appeals' judgment, with opinions to follow on the concern that Doe be able to undergo a less risky abortion procedure, if that option was still available to her and that was her decision. The following is our opinion holding that the evidence Doe presented conclusively established that she was "mature and sufficiently well informed" to consent to an abortion without parental notification. See Tex. Fam. Code § 33.003(i).

I

Abortion is a highly-charged issue that often engenders heated public debate. Such debate is to be expected and, indeed, embraced in our free and democratic society. It is through this very type of open exchange that our Legislature crafted and enacted the particular statutory scheme before us. Our system of government requires the judicial branch to independently review and dispassionately interpret legislation in accordance with the Legislature's will as expressed in the statute. We begin our analysis with an overview of the Parental Notification Act's judicial bypass procedure and our role in interpreting it.

A. The Proper Role of Judges

"[Courts] are under the constraints imposed by the judicial function in our democratic society. . . . [T]he function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. . . . A judge must not rewrite a statute, neither to enlarge nor to contract it."

-Felix Frankfurter¹

"It is the province of the legislature to make the laws; and of the courts to enforce them."

Barrett v. Indiana, 229 U.S. 26, 30 (1913)

In deciding this case we squarely confront the question of whether, as judges, we should apply the Parental Notification Act as it is written by the Legislature or according to our own personal beliefs. In reaching the decision to grant Jane Doe's application, we have put aside our personal viewpoints and endeavored to do our job as judges -- that is, to interpret and apply the Legislature's will as it has been expressed in the statute.

Unquestionably, in passing the Parental Notification Act the Legislature intended to protect parents' rights by encouraging minors to involve their parents in the profound decision to proceed with or terminate a pregnancy.² The Legislature also chose to provide a mechanism for a minor, under certain circumstances, to obtain an abortion without notifying her parents. In our system of government, it is the Legislature's job to fashion policy. As judges, we respect and defer to the policy choice our Legislature made to encourage parental involvement in such an important matter. Similarly, we respect and defer to the Legislature's policy decision to include a judicial bypass procedure in the statute. Our task is to determine how the Legislature intended that process to work.

B. The Statutory Proof Standard

In creating the bypass procedure, the Legislature delegated no authority to the courts to determine the grounds upon which to grant a bypass. Rather, it specifically enumerated the grounds that, if shown, require the courts to grant a parental notification waiver. Neither did the Legislature give courts authority to decide the level of proof a minor must show to prove that she is entitled to a bypass. And although the Legislature could have chosen to impose a higher standard of proof, such as by requiring the minor to establish the statutory requisites by "clear and convincing" proof or proof "beyond a reasonable doubt," it did not do so. Instead, it set the level of proof at the lower "preponderance of the evidence" standard.³ See Tex. Fam. Code § 33.003(i).

The importance of the evidentiary burden is self-evident. As amicus curiae the Texas Coalition for Parents' Rights recognizes: "Evidentiary standards express the degree of certainty in the outcome that the factfinder must have. Because interests of differing constitutional and societal value come before courts, differing degrees of certainty are required." (Citations omitted). The Texas Coalition urges this Court to apply a burden of proof similar to the "clear and convincing" standard the Nebraska Supreme Court adopted in In re Petition of Anonymous 1, 558 N.W.2d 784, 787 (Neb. 1997). But the Nebraska court was free to adopt a heightened burden of proof because the Nebraska legislature did not articulate a proof standard. Our Legislature mandated a proof standard. For this Court to impose a standard different than that our Legislature chose would usurp the legislative function and amount to judicial activism.

C. The Statutory Scheme

The Legislature could easily have crafted other more stringent standards for a minor to obtain a judicial bypass, constitutional concerns aside.⁴ But as it is written, the statute gives the minor who decides to seek a judicial bypass a number of advantages. For instance, the minor is the only party to the bypass proceeding. See Tex. Fam. Code § 33.003. She is entitled to representation by an attorney of her choice or a court-appointed attorney ad litem, and the court must appoint a guardian ad litem to advocate for the minor's best interests. See id. § 33.003(e). The Legislature chose not to provide for anyone to represent any other interests. And although the Family Code requires proof by clear and convincing evidence in other matters, the Legislature deliberately chose proof by a preponderance of the evidence in bypass proceedings. Compare id. § 33.003(i) with id. § 161.001. Further, if the trial court rules in the minor's favor, there is no appeal, but if it rules against her, she has access to two levels of appellate review. See id. § 33.004. Finally, the bypass statute's default provisions favor the minor. If the trial court fails to rule on the minor's application and issue written findings of fact and conclusions of law within the period allowed, the statute deems the application granted and the minor may have an abortion without notifying her parents. See id. § 33.003(h). Likewise, if the court of appeals does not rule within its allotted time, the statute deems the appeal granted. See id. § 33.004(b).

This Court must interpret the statute as it is written; we are not free to ignore the judicial bypass language. The statute allows a minor to avoid notifying a parent if she can show that: (1) she is mature and sufficiently well informed to make the decision to obtain an abortion without notifying a parent; (2) notifying a parent would not be in her best interest; or (3) notifying a parent may lead to physical, sexual, or emotional abuse of the minor. See id. § 33.003(i). Concerning the first ground, the Legislature could have required that the minor be fully informed, rather than sufficiently well informed. The Legislature had before it -- but rejected -- at least one bill that would have required physicians to supply specified, detailed information about abortion procedures and alternatives to all women, including minors, in order to obtain their informed consent. See Tex. S.B. 65, 76th Leg., R.S. (1999). But the Legislature opted in the Parental Notification Act to impose only the more general requirement that a minor be "sufficiently well informed."⁵ Moreover, to meet the third exception, the Legislature could have required the minor to show that notifying the parents would lead, or even would likely lead to abuse of the minor rather than the lower standard the Legislature chose -- that notification may lead to abuse. We do not mean to imply that all these more stringent standards would ultimately pass constitutional muster, but only point out that the Legislature made clear and deliberate choices about the statutory wording.

That the Legislature chose this particular statutory scheme does not mean that it did not intend the bypass procedure to be meaningful, as we said in Doe 1(I). See 19 S.W.3d at 255. There, we looked to other states' jurisprudence interpreting the laws upon which our Legislature modeled our statute. We did so to ascertain what the Legislature intended that a minor must show to demonstrate that she is "mature and sufficiently well informed" to make the decision to obtain an abortion without notifying a parent. The factors we articulated there, and which we apply in this case, reflect other states' experiences, which are consistent with this Court's effort to determine what the Legislature intended by the words it chose.

D. The Legislative History

Senate Bill 30's author and sponsor have filed an amicus brief, joined by other legislators,⁶ to "provid[e] information regarding the legislative intent" and suggesting that our decisions in Doe 1(I), Doe 2, Doe 3, and Doe 4(I) interpreting the three statutory prongs do not set a high enough standard. We note that it is not the function of this Court to set the standard, but rather to...