Deconstructing Alberto

By Geri L. Dreiling, AlterNet. Posted December 21, 2004.

At 17, Jane Doe had her future mapped out: college, career, hopefully marriage and finally, motherhood. She didn't contemplate reaching those milestones in reverse. But in early 2000, the high school senior discovered she was pregnant. Now she struggled with ordering a different set of choices: motherhood, adoption or abortion. No matter which she picked, she later told a Texas judge, she couldn't escape guilt.

Afraid that her parents would abandon her if they found out, she turned to friends and a relative for advice. One relative who had an abortion said she was happy with her decision. So too did a teenage friend.

And she sought out girls who'd had their baby. One single mom told Jane she'd regretted the decision, that she was unprepared for the tough reality of raising a child. Another teen, who married the baby's father at 15, was in a struggling marriage and regretted her choice.

Jane went to Planned Parenthood and talked to a counselor. She searched the Internet for information and, at school she sought the advice of a teacher who counsels pregnant students.

Eleven weeks and a day into the pregnancy, Jane had a sonogram and asked to see the fetus on the video screen because she "considered it her responsibility to do so."

She opted for an abortion but didn't want to wait until she turned 18. Even though she could still have had one by the time she was considered an adult, Jane decided that it would be too late in her pregnancy. The safest procedures, she was told, were done by the 14th week. And instead of notifying her parents of the decision, as Texas law required, she asked a Texas trial judge to sign an order which would give her permission.

With a lawyer at her side, Jane Doe stood before a judge and asked him to grant her request. He asked her to list the benefits of having a baby. The upside, she said, was that she'd have a child. And she added that since she'd never been a mother, she didn't know about the other benefits. She told the court that when she worked with kids as a volunteer, it was a joyful experience.

He asked her about adoption. She'd considered it but said that she couldn't carry a baby to term then give it up. She'd worry that the baby wasn't brought up in the right environment or that the adoptive parents wouldn't provide love and proper care.

At the end of the hearing, the judge denied her request. He determined that she wasn't mature enough or sufficiently informed to make the decision and she didn't understand the "intrinsic benefits of keeping the child or adoption."

Jane appealed but a Texas Court of Appeals sided with the trial judge. And so the case went before the Texas Supreme Court.

But this time, Jane won. With a split 5-4 vote, the state high court granted her application for permission to obtain an abortion on March 10, 2000. In an opinion written and released three months later, the majority felt that, by a preponderance of the evidence, she was both mature and well-informed. The standard of proof had been a key sticking point for the judges and the majority rejected an argument that the court could impose a higher level of proof than the law explicitly stated.

One of the judges allowing the abortion to proceed was Alberto Gonzales, who was new to the bench. Not only did Gonzales agree with the majority, he wrote a concurring opinion which focused not on the philosophical debate surrounding abortion – but on the role of a judge. "[T]he duty of a judge is to follow the law as written by the Legislature," he wrote. "Our role as judges requires that we put aside our own personal views of what we might like to see enacted...."

He chided the dissenting judges, calling their efforts to create hurdles that weren't written into the law "an unconscionable act of judicial activism."

"As a judge, I hold the right of parents to protect and guide the education, safety, health and development of their children as one of the most important rights in our society. But I cannot rewrite the statute...."

What he seemed to be saying was that while he thought parents should be the ones in control, the law is the law.

"This decision demonstrates the Court's determination to see to it that we discharge our responsibilities as judges, and that personal ideology is subordinated to the public will...."

It wouldn't be the last time that Gonzales would distinguish between his official role and his private views.

As the lawyer to Gov. George W. Bush in the mid-90s and as White House counsel to Bush in recent years, Gonzales has been a loyal trooper, giving his boss what he wanted – whether it was clemency memos justifying the death penalty in cases in Texas, or White House memos justifying the torture of prisoners at Guantanamo. He's explained his role to mean giving Bush what he needs, even if "there may be things the president wants that I personally disagree with."

Geri L. Dreiling is a St. Louis lawyer and freelance writer.

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