The Legal Agony of Being from Texas

Another week where Texas fails to live up to its promise.

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The week’s big news: So long, Roe v. Wade (and modern America)

Sammy “Scalito” Alito wants you to know he loves America, specifically the America his grandfather immigrated to in 1914, where men were men and women knew their place. He also wants you to know that, notwithstanding the fact that his reasoning in the draft Dobbs v. Jackson Women’s Health Organization opinion could be applied to access to contraception, interracial marriage and gay marriage, this opinion will not endanger any of those widely-accepted rights.

Yet. (See this article by law professor Kimberly Wehle for a fuller discussion.)

The news of the leaked opinion draft broke like a thunderclap from coast to coast Monday evening. It almost upstaged the Met Gala in New York, it was that big a deal. Thank God the ultrarich still have their entertainments.

Here is my grotesquely oversimplified summary of the philosophical differences between Roe and Dobbs:

         Roe: The Constitution guarantees both enumerated and unenumerated, or implied, liberties. Beginning in the early 20th Century, Supreme Court cases recognized a right to “personal, marital, familial and sexual privacy.”[1] Roe ruled that those liberties included a woman’s right to choose to have an abortion, at least until such time as a fetus’s viability allowed the State to assert an interest in protecting life and regulate that right.

         Dobbs: The rights protected by the original Constitution are those explicitly enumerated or, if not explicit, “any such right must be ‘deeply rooted in this Nation's history and tradition’ and ‘implicit in the concept of ordered liberty.’ … The right to abortion does not fall within this category.”[2] Therefore, there is no constitutional interest in protecting a woman’s right to choose, and the states are free to regulate it as they see fit.

In other words, the Constitution creates an America frozen in time in 1787. Legal scholars call Alito’s reasoning “originalist,” which is a fancy term for “protect the patriarchy.”

Roe has protected Texans from the worst theorcratic impulses of our Legislature, although the protections have grown weaker in recent years. Last spring, the Legislature passed S.B. 8, the “fetal heartbeat” bill, which included the innovative “bounty hunter” provision to insulate it from judicial review. The Supreme Court sneakily approved the bill last summer, allowing it to go into effect without court review. If that’s not bad enough, the Lege also passed a “trigger law,” completely outlawing abortion in the event that Roe was overruled, with no exceptions for rape or incest. So, by August, performing an abortion could be a felony in the Lone Star State.

The usual fine print about how limiting abortion access disproportionately imperils women of color and the poor applies to Texas, only more so.

In this week’s Cruelty Chronicles …

Most people, hearing of the draft Dobbs v. Jackson Women’s Health opinion, would have contemplated its disastrous effects on women’s rights, or even the impact of the decision on this fall’s elections, or on the risk to other rights and privileges inherent in the case’s reasoning.

But not Greg Abbott. When he learned about the leaked document, it set his mind spinning.

He thought to himself, “Self, how can I use this to punch down on some unfortunate Texans my voters don’t care about?”

His answer was, “Let’s go after Plyler v. Doe,” the 1982 Supreme Court decision that required the State of Texas to pay for the education of undocumented children in its public schools. In Plyler, the State argued that it shouldn’t have to pay the costs for educating undocumented children, since it was the federal government’s job to keep them out of the country. SCOTUS disagreed, saying the Equal Protection Clause of the 14th Amendment requires that no State shall "deny to any person within its jurisdiction the equal protection of the laws."

This is, IMHO, more performative bulls*t from Our Only Governor. But it’s not performative, of course, for the undocumented kids he wants to kick out of Texas public schools.

Scientists flunk Ken Paxton, OAG on … science.

In a study published last week, and to the astonishment of no one, indicted Texas Attorney General Ken Paxton and the flunkies on his Opinion Committee received a failing grade for the AG Opinion, published in February, that gender-affirming treatment for children and adolescents constitutes child abuse under Texas law:

… the authors conclude that the medical claims are not grounded in reputable science and are full of errors of omission and inclusion. These errors, taken together, thoroughly discredit the AG Opinion’s claim that standard medical care for transgender children and adolescents constitutes child abuse.

In other words, the AG Opinion is a load of horse hooey. The study was conducted by a team from UT Southwestern and Yale schools of medicine and the Yale Law School. The AG Opinion, you may recall, was the basis for an executive order by panicky Governor Greg Abbott requiring DFPS to investigate all allegations of gender-affirming treatment as child abuse per se. The courts quickly shut that nonsense down, scheduling a hearing on the merits, if any can be found, for July 11.

I’ve been following the drama because the sheer moral bankruptcy of using the power of the State to torment transgender children and criminalize their parents and caregivers so offends me. It turns out my instincts were right on the science and the medicine, too — the AG and the Governor had nothing to offer but very weak tea.

Meanwhile, Paxton is in a runoff with George P. Bush on May 27. That will start to heat up as soon as the constitutional amendment and local government elections are over this weekend.

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[1]           Roe v. Wade, 410 U.S. 113 (1973) at 129, citing Griswold v. Connecticut, 381 U. S. 479 (1965).

[2]           Dobbs vs. Jackson Women’s Health Organization, draft opinion at 5.