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Ken Paxton
Before the ink was even dry on Justice Alito’s Babies Are God’s Punishment for Whores decision (yes, that is the correct Bluebook citation), Texas Attorney General Ken Paxton swung into action. He immediately issued an advisory opinion promising to enforce Texas laws pre-dating Roe which criminalize abortion and assess civil penalties for both the doctor and the pregnant person.
“My office is specifically authorized to pursue and recover those civil penalties, and I will strictly enforce this law. Further, we will assist any local prosecutor who pursues criminal charges,” he wrote, adding that “Although these statutes were unenforceable while Roe was on the books, they are still Texas law. Under these pre-Roe statutes, abortion providers could be criminally liable for providing abortions starting today.”
Which led naturally to the question of what he intended to do if our six robed overlords decide to take Justice Thomas’s advice and ditch all of the substantive due process decisions except for Loving v. Virginia, which he’s not too exercised about for some reason.
“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he wrote in his Dobbs concurrence. “Because any substantive due process decision is ‘demonstrably erroneous’ we have a duty to ‘correct the error’ established in those precedents.” [Citations omitted.]
“Obviously the Lawrence case came from Texas,” asked NewsNation host Leland Vittert in an interview with Paxton on Friday which was flagged by the Houston Chronicle. “Would you as attorney general be comfortable defending a law that once again outlawed sodomy? That questioned Lawrence again or Griswold or gay marriage? That came from the state legislature to put to the test what Justice Thomas said?”
In fact, he would! If the Texas state legislature decides to pass a law banning homosexual sex, or contraception, or gay marriage, then Ken Paxton will happily defend it all the way to the Supreme Court in hopes that Justice Thomas and his merry band of stare decisis slayers will punish filthy sex-havers some more, particularly if both partners have matching sets of boy parts.
“I mean, there’s all kinds of issues here, but certainly the Supreme Court has stepped into issues that I don’t think there’s any constitutional provision dealing with,” Paxton responded. “They were legislative issues, and this is one of those issues, and there may be more. So it would depend on the issue and dependent on what state law had said at the time.”
“This is all new territory for us so I’d have to see how the Legislature was laid out and whether we thought we could defend it,” Paxton went on. “Ultimately, if it’s constitutional, we’re going to go defend it.”
Make no mistake, they’re coming for all your rights. The mask is off, and so are the gloves.
Attorney General Ken Paxton says he will defend Texas sodomy law if Supreme Court revisits Lawrence vs. Texas [Houston Chronicle]
Liz Dye lives in Baltimore where she writes about law and politics.
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