1999- Parental Notification

Texas’ first law requiring teenage women to involve their parents in the young women’s abortion decision went into effect on September 1, 1999. This law required that a physician notify the parents at least forty-eight hours prior to the abortion procedure. At the same time, the law established a method for bypassing the requirement (“judicial bypass”) for some teenage women. The parental notification law was introduced during the regular session of the 76th Legislature as Senate Bill 30 (SB 30). It passed in the Senate twenty-three votes to eight. Its House version passed one hundred eleven to thirty. Governor George W. Bush signed the bill on June 7th, 1999. Senate Bill 30 added Chapter 33 to the Family Code.

The teenage women affected were unmarried and not emancipated. The law specified that notification be made via telephone or in person at least forty-eight hours prior to the procedure. If the young woman in question had no living parents, the law allowed for the notification of her managing conservator, guardian, or a court-appointed conservator or guardian. If the physician was not able to contact the woman’s parent’s via telephone, then notice could be given by restricted delivery, certified mail to their last known address. The law was excepted if the physician felt, and could demonstrate in the medical record, that an immediate abortion was necessary to preserve the health of the young woman.

The judicial bypass allowed a young woman to appear confidentially before a judge in the event that she felt she could not involve her parents. She had a right to retain, and appear with, an attorney. The court would also appoint someone to serve as guardian ad litem for the applicant. During the hearing the judge was to determine whether the applicant met any of three criteria for exemption from the law: that she was “mature and sufficiently well-informed” enough to make the decision on her own; that notification would not be in her best interest; that notification would lead to physical, sexual or emotional abuse. The legislation required that the hearing be held promptly; if the judge had not ruled on the application by 5:00 p.m. of the second business day after the minor filed her application with the court, the bypass was deemed granted. The law did not place any restrictions on whether the application needed to be made in a specific county. If the young woman was concerned about remaining anonymous at her county courthouse, she was free to file in another county. Relative to other states’ laws, Texas’ version of parental notification was less restrictive, and the judicial bypass more accessible. Danielle Tierney, Director of Public Affairs for Planned Parenthood of the Texas Capitol Region (PPTCR), said the intent of the bypass option was clear. “Even some of the most right-wing, anti-choice authors of that bill wanted that bar set intentionally low. It’s supposed to be easy to qualify for a bypass. They understood the reality.”

Deborah Stone writes of the ambiguity of what we call public interest. “This notion of public interest raises questions of what counts as consensus and how we would know whether true consensus exists.” In spite of passing through the state legislature by wide margins, and being greeted by a willing governor pen-in-hand, even advocates of the parental notification law did not have a uniform interpretation of the law’s meaning. Then-Governor Bush said the law made an obvious, but important, point, “when a child is in crisis, parents should have a role and a voice. They should be the first to help, not the last to know.” Bush went on in his remarks, though, to call on, “state lawmakers to push for other antiabortion measures,” suggesting that there was value in this law beyond allowing parents to help their kids in crisis. Texas Right to Life president Joseph Graham said the law, “establishes protection for the unborn… the law will help pregnant teens make a decision about something that will have an impact on them the rest of their lives.” He also praised the strong leadership of Governor Bush. Reflecting on the significance of parental involvement laws, Texas Attorney General Greg Abbott identifies different beneficiaries than Graham and Bush. For Abbot, such laws are less about teenagers and the unborn than about parents. “[P]arents need to be informed whenever their child undergoes a medical procedure… minors may not have the maturity or capacity to make an informed choice on their own.” There may have been a majority of support for this law, but if bills were voted on for their perceived intent, rather then their language, establishing a majority would be difficult.

Not only did its supporters see different intent in the text of the bill, there was no clear, unambiguous interpretation of the bill’s passage. Glenda Parks, Executive Director of Planned Parenthood of the Texas Capitol Region, described the passage of the notification law as something that was inevitable. In previous legislative sessions, while the national trend was towards regulating abortion, Texas had Bob Bullock (as Lieutenant Governor) and Ann Richards (as Governor) acting as “safety nets” to stave off restrictive legislation. By the 1999 legislative session, “we knew we were going to lose this issue… we knew it was coming to pass.” In contrast, National Right to Life Committee State Legislative Director Mary Spalding Balch, described the law’s passage as, “just short of miraculous.” Where Parks saw supportive lawmakers fighting a battle that would eventually be lost, Balch saw previous sessions’ efforts to pass the legislation undermined by “arcane parliamentary tricks” employed by “the determined pro-abortion minority.”

For Texas’ Planned Parenthood in 1999, coordination with other affiliates and organizations on legislative matters was in the early stages of its evolution. “The larger affiliates have had the money to designate someone to be at the Capitol most of the time. It’s created an on-the-ground team that was not there in 1990, or even in ’95,” said Parks. “Now there is… a much stronger presence than there ever has been.”

By the time the 1999 legislature met, a coalition of representatives from politically progressive reproductive rights advocacy groups had formed. In addition to the Planned Parenthood presence, there was the Texas Abortion and Reproductive Right Action League (TARAL) and Peggy Romberg of the Women’s Health and Family Planning Association of Texas. Romberg, says Parks, had been lobbying on behalf of abortion and reproductive health rights for almost twenty-five years. “She’s been up there alone, and hasn’t had to work in coalition… She hasn’t had to share information before. She hasn’t had to talk strategy, before she just decided it.” Parks believes this coalition works well together, though she concedes that coalition work can be frustrating. Achieving consensus, she said, is “hard, and can be annoying, and sometimes you lose.”

The coalition knew they would eventually lose the parental involvement fight as the composition of the legislature was changing, and statewide polls indicated strong support for the measure. Parks also thought Bullock would not hold out much longer within these conditions. “Legislators personalize it as parents… It’s a losing issue in public opinion, it’s very hard to defend.”

The abortion rights coalition discussed introducing their own involvement bill as a way of preempting more restrictive legislation. They imagined one modeled on legislation passed in Maine. The Maine law, while requiring notification, did not require parental notification. Instead, it allowed for the notification of a trusted adult, such as a counselor, other adult relative, or a clergy member. The Texas coalition weighed the option, but “being good dyed-in-the-wool activists decided we couldn’t compromise.” The notification bill passed during the next session.

By January 2001, an organization called Jane’s Due Process (JDP) had begun helping young women through the judicial bypass hearing. Teenage women could call their statewide hotline with questions and they would be screened for bypass candidacy. In addition, the organization provided legal representation, and occasionally a ride to court, for teenage women across the state. JDP worked with abortion clinics and providers to ensure that a young woman in Odessa, Texas was being given the same information about the law as one in Corpus Christi. Both Parks and Tierney expressed that abortion providers across Texas owed a great deal of gratitude to JDP. For the first year of the law, however, access to the court system was very uneven across the state. As indicated by Parks, “What was difficult was a lot of Austin lawyers came forward [to help], not as many did in Midland.”

In spite of the relative clarity and leniency of the Texas notification bill, implementation at the grassroots level was not straightforward. The Texas Department of State Health Services Abortion Licensing Division (TDSHSALD) was the entity in charge of enforcing and ensuring compliance with the law. Tierney remembers feeling like there was little guidance in complying from the state. Though the law seemed clear enough, requiring notification by phone or in person, how one documented that interaction was not. Questions that remained unanswered, such as: How does one ensure an adult with a different last name or address is indeed a parent? How does one establish, and document, that the adult on the other end of the phone was an actual parent? It was not known how stringent a standard the TDSHSALD expected. Moreover, the definition of proper compliance can be subjective.

In creating internal policy out of statewide legislation Planned Parenthood (or affected entities) must take into account not only what a state auditor is likely to want, but also must consider what the piece of legislation calls for. This must be done carefully in order to address the occasional pro-life spy who calls seeking to establish and document violations. On top of all this, these policies need to ultimately serve Planned Parenthood’s clients as best as possible. This is uneasy and dangerous ambiguity to Tierney, since the repercussions of getting it wrong, or being caught willfully not complying, could be wide-ranging. Aside from harming the larger abortion providing community, such incidents open the door for more restrictive legislation.

When it comes time to implement laws, clinics and organizations in different parts of the state develop different policies and procedures. There were a few reasons for this. First, different organizations, or different affiliates within one organization, have different lawyers; thus, how a policy “looks” at the grassroots level differs from place to place. Planned Parenthood also has no formal process for turning statewide legislation into clinic protocol, nor, at the time, was there necessarily a lot of communication between affiliates in different states. The law was targeted specifically at abortion providers, and Austin’s Planned Parenthood clinics were not, at the time, abortion providers.

At Planned Parenthood’s 7th Street clinic, the assumption was that the organization would soon issue protocols for clinic staff that would clarify how the law would affect interactions with teenage clients. The location’s clinic coordinator at the time, Michael Burchard, felt that even though the clinic was not an abortion facility there was an implicit obligation to help their teenage clients navigate the law.

The thinking also, and this is important in perhaps why a plan wasn't in place, was that it's intended target was abortion clinics, hence it was more or less their problem. Patients become your charge when you test them for pregnancy. A lot of psychology goes into this but a bond is established along with shared feelings of problem solving. To send a teenage client away by saying, ‘go to these abortion providers and they will tell you what you need to do,’ was ethically unworkable. From day one it was clear that the parental notification act was a clinic issue.

There had been no guidance from the state, or Planned Parenthood’s local administration, by the time Burchard met the first client he felt might qualify for a judicial bypass. He approached some family lawyers he was acquainted with and they agreed to represent his teenage clients pro bono. While the law maintained confidentiality for young women in the judicial bypass process, her identity was not protected elsewhere. As Burchard discovered, not being able to involve a parent in her abortion meant a young woman could not involve a parent in getting an excused absence from school, or a ride to and from the courthouse. In the first months of the notification law, he interacted with sympathetic counselors at various Austin high schools who helped keep teenage women’s efforts secret, though hardly anonymous. Burchard also found that the judges hearing the cases were not necessarily any better prepared for the law than he or the young women were. During the first hearing he was a part of, the judge plainly consulted a printout of the new law Burchard had brought with him. “The judge was being remarkably candid, admitting that it was new territory for all involved and was being very respectful and polite to the client. He made a difficult situation as comfortable as possible.”

For his part Burchard felt torn. On the one hand, he felt the lawyers understood the law, and the bypass hearing, very well. He also felt the young women seeking a bypass were very “sharp and self-assured.” He told several administration members that he was assisting young women from the clinic in the bypass process. He remained concerned that he was never told by his superiors to stop, or given more oversight when a misstep in working with these young women could result in the Planned Parenthood clinic losing an annual $575,000 in Title X and XX funding. Burchard was never aware that Planned Parenthood’s administration office received calls from young women seeking help. Feeling he had both good rapport with teenagers and an understanding of the process, a tacit decision had been made at the central administrative offices to refer the young women to him at the clinic. Though Planned Parenthood’s San Antonio affiliate (unlike Austin an abortion provider) had established a protocol for working with bypass clients, Burchard had never thought to call around to other parts of the state for help troubleshooting the law. “In hindsight, that seems perfectly logical. I'm not sure why I felt I needed to reinvent the wheel. My only defense was that it all happened so fast, and I felt the need to jump in and try to make things go as well as I could.”