Parental Notification Act (3/2/00)
I'm smart enough to not touch the subject of abortion. At least, I once was. Few subjects are as emotional as abortion, and even though Roe v. Wade was handed down almost thirty years ago, the issue will be a pivotal one in the upcoming presidential election.

That being said, an important abortion law issue was decided last week in Texas with barely a whimper.

Consider yourself about to be informed.

Those that oppose abortion are always trying to tweak our laws to make it more difficult, practically speaking, to obtain one.  Such an effort occurred last year in Texas when the legislature passed the Parental Notification Act sponsored by Senator Florence Shapiro (who loves sticking her nose in other people's business). That law forbids a physician from performing an abortion on a pregnant, unemancipated minor without first giving notice to the minor's parents at least 48 hours before the procedure. See Tex. Fam. Code 33.002(a). Note this is a parental notification statute, not a parental consent law. There is, however, an exception to the statute. If the young woman can prove in a private hearing to a district judge that she is "mature and sufficiently well informed", the judge can grant her a waiver and the abortion may be performed without her parent's knowledge.

So what does "mature and sufficiently well informed" mean? Well, recently a seventeen year old pregnant girl and her lawyer didn't know either.

That teenager is pregnant and sought a waiver from a district judge so she could avoid telling her parents about her upcoming abortion.  The only thing we know about her is that she has a boyfriend, she goes to high school maintaining a high B/low A average, and she lives with both of her parents. When asked by the judge why she did not wish to tell her parents of her situation, she replied that "[b]oth of my parents are active members at our church. . . . And they strongly believe that it's not a wise thing to do. It is something they do not believe in. They much rather me have a child. And they wouldn't even give me the opportunity to have this done. They have it set in their mind what would go on. It is something they strongly disapprove of."

The district judge denied her request. (It seems to me that whether a judge is pro choice or pro life would have a profound effect on his decision). After the denial, she appealed the decision to an intermediate appellate court who refused to overturn the district judge's ruling. Not to be deterred, she appealed the case to the Texas Supreme Court last week who quickly made a decision. (For obvious reasons, her case gets top priority).

The Texas Supreme Court did a very interesting thing. They first agreed that the girl had not shown to the district judge that she was "mature and sufficiently well informed". However, the court pointed out that since no one really knew what those vague terms meant after the legislature enacted the law, the court should explain the terms' meanings and, in fairness, allow her to go back to the judge and try again. For those of you that care, the court said that an applicant must be "sufficiently well informed" about the following: First, she must show that she has obtained information from a health-care provider about the health risks associated with an abortion and that she understands those risks. Second, she must show that she understands the alternatives to abortion and their implications. Third, she must show that she is also aware of the emotional and psychological aspects of undergoing an abortion, which can  be significant if not severe for some women.

In some respects, those three prongs shouldn't be that difficult to prove. At least the dissenting opinion thought so.

That dissent, which consisted of two judges,  wrote that the Parental Notification Act had been gutted. "The [majority opinion] acts as if these three requirements are significant, but they plainly are not, "the dissenting opinion reads.  "Any competent attorney representing a minor in a case like this can easily script testimony that will meet all three requirements. All a minor need tell the trial court is: that she has consulted with a clinician who told her that abortion presented insignificant physical risks to her, that some people regret having an abortion but not very often, and that she could always have the child and keep it or put it up for adoption; and that she carefully considered all the clinician said".

That may be true, but I don't have any better ideas. My initial reaction is that the Parental Notification Act is a bad idea. I know some parents that I wouldn't trust to make it to Walmart and back much less provide counsel to their pregnant daughter. It also seems inappropriate for the government to ever get involved in the communication, or lack thereof, between a parent and a child. Quite frankly, it is the duty of both the parent and the child to form a relationship that is sound enough that the issue of abortion could be discussed in an open and frank manner if the need arose. If the relationship is not of that quality, it is not for the government to mandate that they be forced to communicate.

Nevertheless, the only thing that is certain that the pro lifers will attempt to tweak the statute in the next session of the legislature.  In the meantime (and at the risk of sounding preachy), you might want to spend time with your daughter. With a little luck, she may never have to wonder about the terms of the Parental Notification Act.

Links to the text of the majority and dissenting opinions are provided.

Postscript (3/11/00): After the above was written, the teenager went back to the district judge who, once again, denied her request. Thereafter, she then appealed to the intermediate court of appeals who refused to overturn the judge's decision. As before, she appealed to to the Texas Supreme Court who, unlike before, sided with the girl and allowed the abortion to occur without parental notification.

Barry Green is the District Attorney for the 271st Judicial District.

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