Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
May 29, 1981
MARK WHITE
Attorney General
Honorable Oscar H. Mauxy Opinion No. NW-346
Chairman
Committee on Jurisprudence Re: Constitutionality of provisions
Texas State Senate regulating abortion
Austin, Texas 761ll
Dear Senator Mauxy:
You have requested our opinion regarding the constitutionality of
House Bill 578, presently pending before the 67th Legislature. The bill
would add section 35.08 to the Family Code, as follows, in pertinent part:
Section 35.06. CONSENT FOR ABORTION. (a)
Except as provided by Section 35.03(a)(2) of this code,
and in cases of incest, a physician may not perform
an abortion upon a pregnant child unless the physician
has received written consent for the abortion from:
(1) the child upon whom the abortion is to be
performed; and
(2) either the person or persons authorized to
consent under Subsection (b) of this section or the
judge of a court having probate jurisdiction in
county in which the child resides.
(b) If the judge of a court having probate
jurisdiction in the county of the child’s residence does
not consent to the abortion under Subsection (f) of
this section or if no application for a judge’s consent
is filed, the following person or persons must consent
to the abortion under Subsection (a)(Z) of this section:
(1) the parent of the child, if the child has only
one parent and if no managing conservator, guardian
of the person of the child, or other custodian for the
child has been appointed;
(2) one parent of the child, if the parent-child
relationship exists between the child and both
parents, if no managing conservator, guardian of the
person of the child, or custodian for the child has
been appointed, and if one parent is not available
within a reasonable time to consent;
p. 1143
Oscar H. Mauxy - Page Two (MW-346)
(3) both parents of the child if the parent-chid
relationship exists between the child and both parents, if no
managing conservator of the child, guardian of the person of the
child, or custodian for the child has been appointed, and if both
parents are available within a reasonable time to consent; or
(4) the managing conservator, guardian of the person of
the child, or custodian for the child if a managing conservator,
guardian, or custodian has been appointed for the child.
. . . .
(d) The consent form must be received by the physician who
is to perform the abortion not later than 24 hours before the
abortion is performed.
(e) The consent form shell be kept by the physician for at
least two years from the date of the abortion or until the child
attains the age of fourteen, whichever is longer.
. . . .
(fl (5) The court shall determine if the child Is of sufficient
maturity and ability to give an informed consent to the
abortion. If the court finds that she possesses sufficient
maturity and ability, the court shall consent to the abortion. If
the court determines that the child does not possess sufficient
maturity and ability, the court shall then determine if the
abortion is in her best interests. If the abortion is in the best
interests of the child, the court shall consent to the abortion.
The court shalI make the court’s findings and conclusions in
writing and a part of the record of the case.
(6) If the court does not consent to the abortion, the
court shall inform the child of her right of appeal to the court
of civil appeals. If the child has not previously asked for the
appointment of an attorney ad litem and the child indicates a
desire to appeal the court’s ruling, the court shall appoint an
attorney ad litem at this time.
(7) The appeal shell be on the records and files of the
procedlngs in the lower court and shall take precedence over
other appeals pending before the court. The appellate
proceedings shalI be confidential.
(g) The decision to consent or withhold consent by a parent,
managing conservator, guardian of the person, or other legal
p. 1144
Honorable Oscar H. Mauzy - Page Three W-346)
custodian shall be based on the best interests of the child.
(h) Before an abortion may be performed upon a chid, the
physician shall certify that he has notified or that it was not
possible to notify the appropriate person or persons specified in
subsection (b) of this section of the proposed abortion. This
provision shalI not apply if there is an emergency requiring
immediate action. The child seeking an abortion is required to
inform her attending physician, who has agreed to perform the
abortion, concerning where her parents, guardian, or other
appropriate persons specified in subsection (b) of this section
may be reached, in order to assist the physician in giving the
required notification. The physician is not required to notify
the person or persons specified in subsection (b) of this section
if it 1s determined by a court havmg probate jurisdiction that
such notification would not be in the best interests of the child.
(i) A physician commits an offense if the physician performs
an abortion on a child to whom this section applies in violation
of subsections (a), (d), or (h) of this section. It shall be an
affirmative defense to prosecution under this section that there
existed an emergency in which complying with this section was
not medically feasible. (Emphasis added).
House Bill 578 speaks to two issues related to a pregnant minor’s right to an
abortion - consent and notification, both of which have been the subject of recent
decisions of the United States Supreme Court. In Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. 52 (l9761, the Supreme Court held that a state had no
authority to permit either parent of a pregnant minor to exercise an absolute veto over
the decision of the physician and his patient to terminate the minor’s pregnancy. 428
U.S. at 74. In Bellotti v. Baird, 443 U.S. 622 (1979), a plurality of the court held that,
in Massachusetts, the constitutional right of a minor to seek an abortion was “unduly
burdened by state-imposed conditions upon initial access to court.” 443 U.S. at 648.~
The decision also discussed the Issue of parental notification:
. . . every minor must have the opportunity - if she so desires
- to go directly to a court without first consulting or notifying
her parents. If she satisfies the court that she is mature and
well enough informed to make intelligently the abortion
decision on her own, the court must authorize her to act
without parental consultation or consent. If she fails to satisfy
the court that she is competent to make this decision
independently, she must be permitted to show that an abortion
nevertheless would be in her best interests. If the court Is
persuaded that it is, the court must authorize the abortion. If,
however, the court is not persuaded by the minor that she Is
mature or that the abortion would be in her best interests, it
may decline to sanction the operation.
p. 1145
Honorable Oscar H. Mauzy - Page Four (``-346)
443 U.S. at 647-48.
Finally, in H. L. v. Matheson, 67 L. Ed. 2d 388 (1980, a pregnant minor challenged
a Utah statute which required the physician performing the abortion to “notify, if
possible,” her parents. A majority of the court upheld the Utah statute as to this
plaintiff, on the narrow ground of standing, inasmuch as plaintiff did not allege either
(1) that she was mature and well enough informed to make intelligently the abortion
decision on her own; or (2) that, in any event, notification to her parents would not be
in her best interests. On the basis of a complaint which omitted both of these
allegations, the court held that the statutory requirement of wental notification, “as
applied to immature and dependent minors,” served a valid state interest. 67 L. Ed.
2d, at 399,401. Although the majority opinion specifically avoided the question of the
Utah statute’s constitutionality as applied to other pregnant minors, it is clear that at
least five members of the court, including two concurring and three dissenting justices,
would permit required parental notification only in the event of a court ruling adverse
to the minor on the issues of (1) maturity and (2) best interests.
Your first question is whether House Bill 578 violates the constitutional right of
privacy announced in Roe v. Wade, 410 U.S. 113 (l973), by prescribing that a physician
may not perform an abortion on an unmarried girl under 18 unless he receives judicial,
parental or custodial consent. In Bellotti v. Baird, e, the court said that:
if the State decides to require a pregnant minor to obtain one or
both parents’ consent to an abortion, it also must provide an
alternative procedure whereby authorization for the abortion
can be obtained.
443 U.S. at 643. Section 35.06 furnishes just such an “alternative procedure.‘* Judicial
consent, standing alone, is sufficient under section 35.06 to permit a pregnant minor to
obtain an abortion. Subsection (a)(2). Purthmore, judicial consent is mandatory upon
the court’s affirmative finding on the issues either of (1) maturity, or (2) best interests.
Subsection (f)(5). See Baird, 443 U.S. at 650. Thus, the “alternative procedure”
prescribed by the statute-ely satisfies the constitutional requirements imposed by
the court in Baird. 443 U.S. at 643-47.
You also ask whether the statute’s requirement of consent from both parents has
any effect upon our answer to your first question. In Baird, the court said that, so long
as the “alternative procedure” described above is available to the pregnant minor, “the
requirement of obtaining both parents’ consent” does not burden “a minor’s right to
seek an abortion.” -Id. at 649.
Your third question inquires about the constitutionality of the statute’s use of the
term “reasonable time” in subsections (b)(2) and (b)(3). In our opinion, in the context of
an abortion decision, “reasonable time” is neither so vague nor so overbroad as to
render the statute invalid. The supreme court has repeatedly emphasized “the unique
nature of the abortion decision,” whose option “effectively expires in a matter of
p. 1146
Honorable Oscar H. Mauzy - Page Five (SW-346)
weeks from the onset of pregnancy.” Baird at 642. As the court noted in H. L. v.
Matheson, -, “time is likely to be of theessence in an abortion decision.” 67 L. Ed.
2d at 400. We believe that a court would view the “reasonable time” language of
section 35.06 within the framework of the need for an expedited procedure.
Accordingly, we do not believe that the term “reasonable time” is either so vague or so
overbroad as to render section 35.06 unconstitutional.
Finally, you ask whether the language in the Powell plurality opinion in Baird,
with respect to alternatives to parental consent, is controlling in light of the Stevens
concurrence and the White dissent. Although the language of the Baird plurality
opinion was adopted by only four members of the court, four other members appear to
have endorsed the concept of an “alternative procedure” outlined there and given
effect in section 35.06. The concurring opinion of Justice Stevens objected to what it
viewed as the plurality’s approval of the judge’s right of absolute veto over the minor’s
decision to abort, even if he found in her favor on the issue of maturity. Whatever the
status of the Baird plurality opinion in light of the majority opinion in H. L. v.
Matherson, supra,q is clear that section 35.06 satisfies Justice Stevens’ objections in
Baird by requirmg the judge to consent to the abortion upon a finding favorable to the
pregnant minor on the issue of maturity. Thus, for purposes of your inquiry regarding
the constitutionality of the “alternative procedure” of section 35.06, we conclude that
it is valid under both the plurality opinion and the Stevens concurring opinion in Baird.
You have also raised the question whether subsection (h) of section 35.06 fully
comports with constitutional requirements. That provision requires a physician, before
he may perform en abortion upon a pregnant minor, to attempt to notify one of the
persons specified in subsection (b), s, either a parent or a custodian, and to certify
that he has made such an attempt. The physician Is exempted from this requirement
only “if it is determined by a court having probate jurisdiction that such notification
would not be in the best interests of the child.” Subsection 7(h).
The exception thus provides only one of the two means of avoiding parental
notification which a majority of the court appears to favor. In Matheson, the
concurring opinion of Justice PowelI, expressing the view of two members, declares:
In sum, a state may not validly require notice to parents in all
cases, without providing an independent decisionmaker to whom
a pregnant minor can have recourse if she believes that she is
mature enough to make the abortion decision independently z
that notification otherwise would not be in her best interests.
(Emphasis added).
67 L. Ed. 2d. at 405. The dissent in Matheson, representing the view of three other
justices, holds that mandatory parental notice is unconstitutional per se, since “it
burdens the minor’s fundamental right to choose with her physician whether to
terminate her pregnancy.” Id. at 426. It thus appears that at least five members of
the court would find unco&tutional the parental notification provision of section
p. 1147
Honorable Oscar H. Mauzy - Page Six (MW-346)
35.06 in its present form. In our opinion, this defect can be cured by altering the
language of subsection (h) to reflect Justice Powell’s concern in Matheson. So
amended, the final sentence of subsection (h) would provide:
The physician is not required to notify the person or person
specified in subsection (b) of this section if it is determined by a
court having probate jurisdiction that 1) the child seeking the
abortion objects to such notification and the court finds that
she possesses sufficient maturity and ability to make the
abortion decision independently; or 2) notification otherwise is
not in the best interests of the child.
With this caveat, we conclude that section 35.06 is constitutional.
SUMMARY
The consent provisions of House Bill 578 are constitutional.
The parental notification provision would not be held
constitutional unless the bill were amended to permit a
physician not to notify a pregnant minor’s parents whenever the
appropriate court finds that the pregnant minor objects to such
notification and has sufficient maturity to make the abortion
independently; or that notification is not otherwise in the
best interests of the minor.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY, IR
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
Susan L. Garrison, Chairman
Bill Campbell
Rick Gilpin
Jim Moelinger
p. 1148