Texas Constitution May Be Key to Securing Abortion Rights
In February 2022, a dramatic opinion leak in Dobbs v. Jackson Women’s Health Organization followed the alarming signal from the US Supreme Court that it would not consider Texas’ “heartbeat bill”, also known as Senate Bill 8. This Texas “bounty hunting” law punishes — via heavy damages in civil lawsuits — healthcare providers and anyone else. help women have abortions. Bellwether Texas had signaled the dark turn the federal courts would take on rights that had previously been considered “fundamental” in this country for half a century or more.
But some Texans have also demonstrated an astonishing talent for fighting back: time and time again, they have shown themselves able to react quickly and effectively to attacks. A Texas president from a Jim Crow stronghold signed the Civil Rights Act, and abortion access was won by Texas attorneys Linda Coffee and Sarah Weddington, who represented the plaintiff in Roe vs. Wade. Despite a sudden willingness among the majority of justices of the United States Supreme Court to conveniently ignore the doctrine of watch the decision (regardless of their sworn loyalty in their confirmation hearings), individual Texans may find that the solution to restoring abortion rights to the Lone Star State is rooted in the Texas Constitution, not the federal Constitution.
The Dobbs decision overturned deer with repeated instructions to each state to determine its own laws. Justice Samuel Alito wrote in his introduction and conclusion that abortion regulation is a decision for the citizens of each state, citing the separate opinion of the late Justice Antonin Scalia in Family planning c. Caseya 1992 decision that upheld deer:
It is time to respect the Constitution and return the question of abortion to the elected representatives of the people. “The legality of abortion and its limits must be resolved as the most important questions of our democracy: by citizens trying to persuade each other, then voting.” This is what the Constitution and the rule of law require.
In short, the majority of the Supreme Court turned its back on recognizing abortion as a “fundamental right” encompassed in the constitutional rights to privacy or liberty.
There is a glimmer of hope, however: Now that abortion rights have been eviscerated at the federal level, the legal and political answer may come from “citizens of Texas trying to persuade each other and then voting.” In Texas, the rights to privacy and liberty are still strong in Texas legal precedent, our Texas Constitution and Bill of Rights.
Let’s look at current Texas law, based on our own foundational documents. In 1988, the Texas Supreme Court, under Chief Justice John Hill – an elected Democrat – cemented Texas’ broad constitutional rights to privacy, citing favorably the reasoning of the US Supreme Court in cases involving the right to birth control in Griswold v. Connecticut (1965) and abortion in deer (1973). Hill, a renowned Houston attorney, served with distinction as Texas attorney general before being elected chief justice in 1984. As state attorney general, Hill devised strategies for law enforcement agencies to State correctly implement the deer decision.
During Chief Justice Hill’s tenure on the bench, he helped shape a majority on the Texas Supreme Court that repeatedly recognized broad individual privacy rights and significant freedom from government interference under of our State constitution and bill of rights. For example, in its 1972 decision in Texas State Employees Union v. Texas Department of Mental Health and Mental Retardation, the state employees union sued the MHMRA because the agency required employees to take mandatory polygraph tests with intrusive personal “control” questions that were unrelated to work and required disclosure of questions very personal. The Texas Supreme Court sided with the union, noting that the Texas Constitution guarantees basic privacy rights that provide an individual with protection from unwarranted government intrusions unless the government shows a certain 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. Article 8 provides for the freedom to “speak, write or publish”, and Article 10 protects the right of an accused not to be compelled to testify against himself. Articles 9 and 25 guarantee the inviolability of the home and the person against any abusive intrusion. Finally, the Texas Constitution protects conscience rights in matters of religion. Each of these arrangements gives rise to a concomitant zone of privacy.
Chief Justice Hill further noted that the judges of the court had “no doubt” that a right to individual privacy is implicit among these “general, great and essential principles of liberty and free government” established by the Texas Bill of Rights”:
We contend that the Texas Constitution protects privacy from unreasonable intrusions. This right to privacy should only yield when the government can demonstrate that an intrusion is reasonably justified for the achievement of a compelling governmental objective that can be achieved by no less intrusive and more reasonable means.
This case boldly articulates the rights of individuals in Texas and has been cited many times by federal and other courts applying Texas law. Yet our current statewide elected officials – all Republicans – would have Texans believe that such rights do not exist in Texas law, and that recent proclamations by federal judges “overshadow” (intended irony ) the interpretation of the Texas Constitution by the Texas Supreme Court. Such a belief is demonstrably false (not to mention philosophically at odds with the “rights of the state” mantra that like-minded politicians have been preaching for nearly 200 years). On the contrary, it is well established that the Federal Constitution (as interpreted by the Federal Supreme Court) provides for a floor– not one ceiling— with regard to the extent of an individual’s rights.
While ignorance of the law isn’t usually an excuse, that doesn’t seem to stop far-right Republicans from misrepresenting the outfit in Dobbs while simultaneously working to control the makeup of the Texas Supreme Court in an effort to convince it to overturn precedents which they claim do not exist. Indeed, our disgraced Attorney General has already pledged to enforce century-old criminal abortion laws that obviously prior to the Texas Supreme Court’s decision in Texas State Employees Union just because he thinks he can. The only state entity that can stop it is the Texas Supreme Court.
On Nov. 8, all judicial vacancies in Texas will be filled in partisan elections with candidates funded primarily by parties and attorneys who have a vested interest in the cases being decided. But what matters most today is to ensure that the fast approaching election becomes a referendum on the privacy rights of individuals, especially those that affect access to the abortion and birth control. Eliminating or defeating judicial candidates who would overturn precedents that guarantee these rights is not just a victory for women, but for the individual freedoms of all people.
This essay is dedicated to the memory of John Odam, who passed away on August 21. John was a longtime public servant and key attorney who held several prominent positions for Texas District Attorney John Hill and later for Harris County District Attorney.