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:
