In the wake of the Supreme Court’s historic reversal of Roe v. Wade, Texas appears poised to cement its place in the center of the battle over personal freedoms guaranteed by law for decades.
Leaders in the Republican-dominated state have already enacted one of the most restrictive abortion policies in the nation and been in the forefront of measures that would criminalize parents’ efforts to seek medical treatment for their transgender children. Now, the state’s conservative attorney general, Ken Paxton, has signaled that he is willing to revisit the state’s anti-sodomy law, which was struck down by the Supreme Court in 2003 to protect intimacy between same-sex partners.
“People are still reeling from Roe, and we’re in an incredibly toxic political environment right now,” said Oni Blair, the executive director of the American Civil Liberties Union of Texas. “But we need to recognize that nothing is off the table at this moment. All of our rights and liberties — from LGBTQ equality, voting and even contraception — could be at risk.”
The group has trained hundreds of abortion rights advocates as part of its Texas Abortion Access Network in recent months and prevailed — for now — in a lawsuit that resulted in a judge issuing a temporary restraining order Tuesday that will allow doctors to continue doing abortion procedures in some Texas clinics until a hearing July 12.
In an interview on the NewsNation cable channel soon after the Roe-overturning decision last week, Paxton told anchor Leland Vittert that he would be “willing and able” to defend any state law prohibiting sodomy brought as a test case before the Supreme Court in the months to come. The question came up because, in his concurring opinion in the abortion case, Justice Clarence Thomas had questioned high court rulings that established same-sex marriage and the right of married couples to use contraception and, in the Texas case, outlawed criminalizing gay intimacy.
“Yeah, look, my job is to defend state law, and I’ll continue to do that,” Paxton said to Vittert. “That is my job under the Constitution, and I’m certainly willing and able to do that.”
Paxton’s remarks sent a chill through Texas’s LGBTQ and human rights community, who fear that in the coming weeks the conservative state and Gov. Greg Abbott, R, could take on other long-standing protections governing bodily autonomy and gay rights, threatening progress gained over decades of struggle.
“We put up a valiant fight here, and we are being attacked in every direction,” said Ricardo Martinez, the chief executive of Equality Texas, an LGBTQ rights group. “It is not the government’s business who we have sex with. They’ve intruded into doctor’s office and the classroom; now they want to intrude into the bedroom. This is government overreach.”
Neither Paxton’s office nor Abbott’s spokeswoman, Renae Eze, returned calls or emails requesting comment.
Martinez said that the group successfully fought back against most of the 76 anti-LGBTQ bills offered in the Texas legislature last year, a significant increase from less than 20 introduced in the previous session in 2019.
Brandon Rottinghaus, a political science professor at the University of Houston, said that the overturning of Roe v. Wade is the “first domino of many more rights restrictions that Republicans in Texas have been aiming at for a long time.”
He said that Texas officials could push for criminal penalties for sodomy and attempt to enforce the state’s 2005 ban on same-sex marriage, which was struck down in 2014.
The state legislature could also codify into law Abbott’s new directive — based on a nonbinding opinion by Paxton — that Texas’s Department of Family and Protective Services consider gender-affirming treatments for transgender children as child abuse. Three families of transgender children — one who allegedly attempted suicide — are now suing the state.
Rottinghaus noted that Paxton has always used his office to push a conservative social agenda and, in that respect, it’s not surprising he would be at the forefront of moving to shape the post-Roe legal world in Texas. After the court’s decision was announced, Paxton closed his office for the day and created a state holiday to honor the decision, while Abbott said that the court had “correctly overturned” Roe and that he would continue to work with the state legislature to “save every child from the ravages of abortion.”
The Texas abortion law, which went into effect on Sept. 1, banned the procedure after six weeks of pregnancy — before many realize they are pregnant — and did not allow exceptions for victims of rape, sexual abuse or incest.
Texas’s Republican Party has been drifting to the right for the last two decades, accelerating that movement since the rise of Donald Trump in 2016. Republicans now hold every statewide elective office and supermajorities in both legislative chambers, in part because of gerrymandered district lines. The Justice Department last December sued Texas, alleging the state violated the Voting Rights Act by diminishing the power of Latinos and other minorities, majorities of whom vote for Democrats.
“Everywhere you look there’s a Republican willing to proceed on a right-leaning policy course,” Rottinghaus said. “They feel very free politically to make a conservative case in the state.”
The Texas GOP made its path ahead clear at its annual convention earlier this month in Houston.
Republican activists passed a resolution that rejected the outcome of the 2020 presidential election and referred to President Biden as an illegitimate president. The delegates also called for a repeal of the 1965 Voting Rights Act and, in the party platform, referred to homosexuality as an “abnormal lifestyle choice.”
Conventiongoers also vigorously booed and formally rebuked Sen. John Cornyn, R-Tex., for his role in crafting a bipartisan gun bill passed after the May 24 elementary school shooting in Uvalde, Tex., in which 19 students and two teachers were killed.
“What we’re seeing really is a Republican Party almost completely playing to the base,” said Kirby Goidel, a political science professor at Texas A&M University. “Abbott has gone from a low-key governor to thinking he was going to be challenged in a primary and really moving to cover his flank.”
Abbott’s rhetoric — on guns, the border, “pornography” in school libraries and transgender rights — has become increasingly more extreme in recent months, which has served him well so far during an election year in which he beat back conservative challengers in the primary. His Democratic opponent, former congressman Beto O’Rourke, has focused on abortion rights and gun control as major themes, but Abbott currently has a comfortable lead in the polls, anywhere from five to 11 percentage points.
Abbott and another Republican governor, Florida’s Ron DeSantis, have been jockeying for dominance and the inheritance of Trump’s mantle ahead of the midterm elections. Although he has been less forceful than Abbott on abortion, DeSantis has mounted a high-profile campaign against Walt Disney Co. for its opposition to Florida’s bill banning the teaching of gender-related issues to schoolchildren third grade and younger — dubbed the “don’t say gay” bill by opponents — and has ought fiercely against Biden’s vaccine recommendations.
Texas Democrats’ long-voiced dreams of turning the rapidly diversifying state in their direction have recently appeared more remote, with the last sign arriving in the victory of Mayra Flores, who won a special election in South Texas’s Latino-dominated 34th Congressional District earlier this month. Republicans in Texas have been making gains among Hispanic voters in South Texas in recent years — Flores’s district went for Biden by four percentage points, a far smaller margin of victory for Democrats than in the 2012 and 2016 presidential election cycles.
Democrats’ hopes are contingent on the party continuing to garner two-thirds of the vote of the growing Latino population, according to Matthew Wilson, an associate political science professor at Southern Methodist University in Dallas. And that’s hardly a sure thing, he said: Flores’s victory, coupled with Trump’s 2020 gains in the Rio Grande Valley and elsewhere, should be “warning signs for Democrats.”
The Supreme Court decision striking down the Roe abortion protections and the potential implications going forward for the LGBTQ community — as well as recent disruptions and threats to Pride events by right-wing extremists — cast a pall on the Rio Grande Valley’s Pride parade, according to Joe Colon-Uvalles, a Brownsville resident and campaign specialist with the Planned Parenthood Foundation.
Celebrants on South Padre Island on Saturday cheered and waved rainbow flags but also heard a local drag queen, Luna Karr, exhort the crowd to register and get out to vote.
“We’re willing to take on any fight. We have to protect ourselves from anyone — including the attorney general — who would threaten our rights,” Colon-Uvalles said. “It’s a scary world right now that we live in.”
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The Washington Post’s Scott Clement contributed to this report.