In February 2022, a dramatic leaked opinion in Dobbs v. Jackson Women’s Health Organization followed the alarming signal from the U.S. Supreme Court that it would not review Texas’s “heartbeat bill,” also known as Senate Bill 8. That Texas “bounty hunting” law punishes—via heavy money damages in civil lawsuits—health care providers and anyone else assisting women obtaining an abortion. Bellwether Texas had signaled the dark turn that federal courts would take on rights that had previously been deemed “fundamental” in this country for half a century or more.
But some Texans have also demonstrated an uncanny knack for ripostes: Time after time, they have shown themselves capable of swift and effective responses to attacks. A Texas president hailing from a bastion of Jim Crow signed the Civil Rights Act, and access to abortion was won by Texas attorneys Linda Coffee and Sarah Weddington, who represented the plaintiff in Roe v. Wade. Notwithstanding a sudden willingness among a majority of the Justices on the Supreme Court of the United States to conveniently ignore the doctrine of stare decisis (regardless of their sworn fealty to it during their confirmation hearings), individual Texans may find that the solution to restoring the right to an abortion in the Lone Star State is rooted in the Texas—not the federal—Constitution.
The Dobbs decision overruled Roe with repeated directions to each state to determine its own laws. Justice Samuel Alito wrote in his introduction and conclusion that the regulation of abortion is a decision for the citizens of each state, citing the late Justice Antonin Scalia’s separate opinion in Planned Parenthood v. Casey, a 1992 decision that upheld Roe:
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” That is what the Constitution and the rule of law demand.
In sum, the Supreme Court majority turned its back on recognizing abortion as a “fundamental right” subsumed under the constitutional rights of privacy or liberty.
There is, however, a silver lining: Now that the right to abortion has been eviscerated at the federal level, the legal and political response can come from Texas “citizens trying to persuade one another and then voting.” In Texas, the rights to privacy and liberty still stand strong in Texas legal precedent, our Texas Constitution, and Bill of Rights.
Let’s look at the current law of Texas, based on our own foundational documents. In 1988, the Texas Supreme Court, under the leadership of Chief Justice John Hill—an elected Democrat—cemented Texas’ broad constitutional privacy rights, favorably citing the reasoning of the federal Supreme Court in cases involving the right to birth control in Griswold v. Connecticut (1965) and abortion in Roe (1973). Hill, a renowned lawyer from Houston, served with distinction as the Texas attorney general prior to being elected chief justice in 1984. As state attorney general, Hill devised strategies for state agencies to properly implement the Roe decision.
During Chief Justice Hill’s tenure on the bench, he helped form a majority on the Texas Supreme Court that repeatedly recognized broad rights of individual privacy and significant freedom from governmental interference under our state constitution and bill of rights. For example, in its 1988 decision in Texas State Employees Union v. Texas Department of Mental Health and Mental Retardation, the state employees’ union sued MHMRA because the agency required employees to take mandatory polygraph tests with intrusive personal “control” questions that were unrelated to the job and required the disclosure of very personal matters. The Texas Supreme Court sided with the union, noting that the Texas Constitution ensures fundamental privacy rights that provide an individual with protection from unjustified government intrusions unless the government proves a compelling interest. In his opinion for the court, Chief Justice Hill detailed key elements of our state’s foundational documents:
Section 19 of the Texas Bill of Rights protects against arbitrary deprivation of life and liberty. Section 8 provides the freedom to “speak, write or publish”, and section 10 protects the right of an accused not to be compelled to give evidence against himself. Sections 9 and 25 guarantee the sanctity of the individual’s home and person against unreasonable intrusion. Finally, the Texas Constitution protects the rights of conscience in matters of religion. Each of these provisions gives rise to a concomitant zone of privacy.
Chief Justice Hill further noted that the Justices on the court had “no doubt” that a right of individual privacy is implicit among those “‘general, great, and essential principles of liberty and free government’ established by the Texas Bill of Rights”:
We hold that the Texas Constitution protects personal privacy from unreasonable intrusion. This right to privacy should yield only when the government can demonstrate that an intrusion is reasonably warranted for the achievement of a compelling governmental objective that can be achieved by no less intrusive, more reasonable means.
This case boldly sets out the rights of individuals in Texas and has been repeatedly cited by federal and other courts applying the Texas law. Yet our current statewide elected officials—Republicans all—would have Texans believe no such rights exist in Texas law, and that recent proclamations by federal judges somehow “trump” (irony intended) the interpretation of the Texas Constitution by the Texas Supreme Court. Such a belief is patently false (not to mention philosophically contradictory to the “state’s rights” mantra that like-minded politicians have been preaching for nearly 200 years). To the contrary, it is well established that the federal Constitution (as interpreted by the federal Supreme Court) provides a floor—not a ceiling—with regard to the scope of an individual’s rights.
While ignorance of the law is usually not an excuse, that does not seem to stop hard-right Republicans from misrepresenting the holding in Dobbs while simultaneously working to control the membership of the Texas Supreme Court in an effort to convince it to overrule the precedents that they pretend do not exist. Indeed, our disgraced attorney general has already vowed to enforce century-old criminal abortion laws that obviously pre-date the Texas Supreme Court’s holding in Texas State Employees Union simply because he thinks he can. The only entity in the state that can stop him is the Texas Supreme Court.
On November 8, all of the judicial vacancies in Texas will be filled in partisan elections with candidates who are funded primarily by the parties and lawyers who have a vested interest in the cases being decided. But what matters most today is ensuring that the fast-approaching election becomes a referendum on individual privacy rights—specifically, those affecting access to abortion and birth control. Removing or defeating judicial candidates who would reverse the precedents that guarantee these rights is not only a victory for women, but for the individual liberties of all persons.
This essay is dedicated to the memory of John Odam, who passed away on August 21. John was a longtime public servant and key lawyer who served in multiple, distinguished capacities for Texas Attorney John Hill and later for the Harris County Attorney.