2005- Parental Consent

Upgrading parental notification to parental consent was a priority for Governor Rick Perry during the 2005 legislative session. The governor of Texas lacks the executive powers of other governors, though he or she can seek to influence the direction and priorities of the legislature. Speaking at a “Rally for Life” at the state capitol in early 2005, Perry made his expectations of the legislature clear.

I say it is time for Texas to have a new parental consent law. Five years ago, lawmakers passed a bill requiring parental consent for a child to get her ears pierced. It is time we apply the same rational standard to abortions performed on minors.

Perry’s determination to sign a parental consent bill was also established in remarks to the Austin American Statesman and Associated Press.

Danielle Tierney thought Perry’s commitment to a consent bill had to do with shoring up the religious conservative vote, and proving himself a leader in the eyes of skeptical republicans, in anticipation of a tough 2006 primary campaign. This was in spite of the fact that the previous legislative session under Perry had a distinct anti-abortion theme. The 2003 session produced the Woman’s Right to Know Act, a Fetal-Personhood Act and an appropriations bill rider that nearly defunded Planned Parenthood. The Dallas Morning News quoted political insiders as saying that a poor showing before conservatives during the session might make Perry vulnerable to a gubernatorial challenge from Senator Kay Bailey Hutchison, and perhaps even democrats. A parental consent law did emerge from the session, though Tierney described it as representing, “a weak victory for them, and an inconsequential change for us.”

Four bills having to do with parental consent were introduced in the Texas House during the 79th Legislative Session. House Bill 3305 disallowed consent from being obtained by telephone. It would have required that an application for a judicial bypass be filed at a courthouse in the county where the minor lived, or the clinic was located. It also eliminated physical, emotional or sexual abuse as criteria for obtaining a judicial bypass. House Bill 17 sought to make public information about judicial bypass cases. This meant that all applications, and appeals sought, granted and denied would be collected and published annually. The bill stated this information was to be made public on a regional basis, but the identity of the presiding judge was left confidential.

Representative Phil King authored House Bill 1212, the bill that seemed most likely to pass during the session. Like HB 3305, it restricted the counties available to a teenage woman for a judicial bypass hearing; it limited her to filing either in her home county or a neighboring one. It also extended the span of time within which the judge must issue a ruling, moving it from 5:00 p.m. on the second business day to 5:00 p.m. on the fifth business day. Under this bill, any bypass granted was only valid for 91 days. This bill would have sought statistics on the number and disposition of judicial bypass cases. The applicant’s name would remain anonymous, though her county of residence would have been public information. It additionally would have made public the numbers of bypasses granted by county and by judge. The aspect of HB 1212 that was most frightening to pro-choice advocates and legislators, however, was a change it would have made to the bypass criteria. Rather than asking judges to determine whether involving her parents was in the teen’s best interest, it would have had them determine whether having an abortion was in her best interests.

The parental consent initiative complicated the legislative ambitions of the pro-choice coalition. Though they had their own list of bills they hoped to see pass, they knew nobody was proposing a law that meant merely to change the notification requirement to consent (which would be known as a “clean consent” bill). “We knew that when they said they wanted parental consent that it wasn’t really about that. It’s about tighter restrictions on providers… and it’s really about the judicial bypass process.”

There was also a sense of disunity in the pro-life camp. Both Tierney and Hayes were aware of friction between pro-life advocates and legislators over which strategy to undertake. Stacey Emick, legislative director for Texas Right to Life, believed that the abortion rate would not be substantially lowered by changing the notification law to consent. “We will not pursue parental consent,” she told the San Antonio Express News. Texas Alliance For Life seemed to see things differently. Executive director Joe Pojman did not believe the mere notification of parents protected a young women being coerced into an abortion by someone else. His organization heralded the 2005 Parental Consent law as giving parents the right to protect their daughters from abortion.

At the crux of this conflict might have been be the 1979 United States Supreme Court Belotti decision. This decision stated that no third party could have an absolute veto over a woman’s decision to have an abortion, thus any law requiring consent (from either a parent or spouse) needed to have a judicial bypass option. Because the Belotti case was a response specifically to laws where consent was at issue, some pro-life groups though it would not apply to notification laws. Their strategy, then, was to dismantle the bypass option while leaving the notification law otherwise intact. Concentrating their efforts in states with conservative circuit courts (like Texas, as opposed to Maine) would make court challenges from pro-choice advocates difficult.
Regardless of its origins, the pro-choice coalition thought exploiting the schism between the pro-life groups was worth setting aside their own agenda.

We wanted to pass an [emergency contraception] bill, we wanted to pass a Medicaid waiver… but we saw competing agendas on the other side. You want to pass positive legislation that will prevent unintended pregnancies, improve access to health care, all that stuff, but you have to start thinking maliciously. You have to start thinking, ‘how can we mess with them?’ and ‘how can we screw up their strategy?’

The pro choice coalition decided to adopt the strategy they discarded prior to the notification law’s passing: they wrote their own parental consent bill and shopped for a legislator to introduce it. The bill they wrote took the existing notification law and exchanged the word consent for notification. It left the bypass procedure intact, and added exemptions for teens not living with a parent or legal guardian and for those who had already given birth.

Finding a legislator to introduce their bill was a delicate matter. They sought a conservative democrat or moderate republican, someone with a mixed voting record. This proved difficult because moderates are so-regarded because they stay away from divisive social issues. Therefore, their approach had to be done “quietly.” This meant meeting legislators, or their staff members who might be sympathetic or not share their boss’ ideology, in public places where they spent time after work. The ideal legislator must also be one who would want to take credit for the bill. The right legislator would have to balance trust with believability.

Representative Mike Villarreal ended up introducing House Bill 3392 on the last day for filing. Tierney remembers being skeptical that anyone would believe Villarreal would sponsor a parental consent bill, but thought he could still expose the ulterior motives of the competing bills. Planned Parenthood did not take a public position on this bill.

A point of order is an important tactic for the minority party in the legislature. It identifies procedural errors in bills. More significantly, it can stop a bill likely to pass. It can be wielded as a friendly warning (or threat) or used as a surprise attack. The error identified in a point of order may be an actual significant problem, or an obvious, stupid mistake (like pages being incorrectly numbered).

Villarreal was preparing for a fight the day House Bill 1212 came to the floor. He had prepared a speech on the significance of parenthood for the occasion. He was approaching the microphone, ready to give his speech, when Representative Jim Dunnam got there first. Dunnam killed HB 1212 on a point of order.

Representative Dunnam supported the notion of parental consent for abortion. He recalls both “pulling the trigger” on HB 1212 as well as voting for parental consent in its final form. He knew, and respected, that Villarreal felt strongly about opposing it, and had prepared a speech. Dunnam, though, felt the changes the bill would have made to the judicial bypass were not acceptable. “It didn’t make sense to me that we go through five or six votes on this issue when the people pushing it were very resistant to an appropriate bypass… I felt it was best to get rid of it then and there.”

Technically, King’s House Bill 1212 lost hope of passing with Dunnam’s point of order, but its senate companion bill also sabotaged it. The companion bill was Senate Bill 1150, by Chris Harris, and it was virtually identical to King’s house bill. Though he introduced it, it was thought that Harris was not interested in the bill’s regulation of the judiciary. Harris got his bill out of committee within forty-eight hours of HB 1212’s death by point of order. By the time it was out of committee, SB 1150 had become a “clean consent” bill. “He took all the crap out, and gave them exactly what they said they wanted. He wanted his bill to pass, but did not want the stuff about going after the judges.” Senate Bill 1150 was never voted on.

Parental consent ended up becoming the law of Texas with the passage of The State Board of Medical Examiners Sunset Bill. The consent provision was an amendment to the occupations code by Representative Will Hartnett. Putting an amendment on a germane bill circumvents the committee process, and allows a vote on an item that may have fallen through the cracks, or failed as its own bill. A staff attorney in Hartnett’s office said his boss is especially good at finding bills that will carry items on his agenda. He also thought this strategy was more likely to be used in the house than the senate. “The house is more aggressive on this, in the senate they leave each other’s business alone… Maybe it’s a courtesy, being there’s only thirty-one of them they have a lot better chance of getting their legislation to the floor.” A sunset bill is a particularly good place for such a thing, since “these bills have to pass.” The sunset bill turned out to serve the interests of abortion rights advocates, too, since it required the amendment to be a “clean” consent. “Anything more in the occupations code would not have been germane. They had amendments that did more, but did not offer them. If they had, there would have been a point of order.”

The parental consent law now exists in the occupations code, while the notification law lives in the family code. Hays echoed Tierney’s thought that this does not make any sense, but nor does it affect the bypass procedure or the practical operations of abortion providers. “The practice on the ground [since the notification law] has been to require consent.”