Can ire over abortion ban finally put a Democrat on the Texas Supreme Court?

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^{Editor’s note: This story contains explicit language.}

Three Texas Supreme Court seats are up for grabs this November and, for the first time in a long time, Republican incumbents are facing heat from Democrats, who see these races as the best chance Texas voters have to influence the state’s near-total abortion ban.

Democrats have created a political action committee to unseat “Jimmy, John and Jane” — justices Jimmy Blacklock, John Devine and Jane Bland. In statewide TV ads, the PAC draws a line between these justices’ rulings on abortion and the stories of women who say they were harmed by the new laws.

“We just have to say, these are the folks that did that thing that you don't like,” said PAC founder Gina Ortiz Jones, a former undersecretary of the Air Force in the Biden administration and a San Antonio native. “This is how you can hold them accountable.”

Since the U.S. Supreme Court overturned Roe v. Wade in 2022 and allowed states to set their own abortion laws, state courts have become the new electoral battleground. More money was poured into state supreme court races in the last two cycles than ever before, and this year promises to shatter even those new records, according to the Brennan Center for Justice at New York University.

Whether that national fervor will move the needle in Texas remains to be seen. Like the rest of the state government, the state Supreme Court, where nine justices each serve staggered six-year terms, has been the exclusive domain of Republicans for more than two decades. Getting even one dissenting voice on the court could be influential, but this may not be where the state’s sturdy red wall begins to crumble, said Todd Curry, a political science professor at the University of Texas at El Paso.

“I don't think we've hit the watershed moment where there ends up being a Democrat on the Texas Supreme Court,” Curry said. “We're not quite there yet, but I think give us four, eight years, and we might get to that point.”

The new era of state Supreme Court races

The first time Ortiz Jones looked closely at the Texas Supreme Court was after Kate Cox, a 31-year-old Dallas mother, was told she couldn’t legally terminate her nonviable pregnancy. Ortiz Jones remembers reading the ruling and thinking, “that’s kind of fucked up.”

“I grew up in a part of San Antonio where ‘fuck around, find out’ is not an uncommon phrase,” she said. “Hence, that's where the PAC name comes from.”

But as the Find Out PAC is discovering, connecting voters’ distaste for the state’s abortion laws to the justices who interpret those laws has proved tricky. Polling from the Texas Politics Project at the University of Texas at Austin shows more Texas voters are unhappy with the strictness of the state’s abortion laws. But the PAC’s own polling shows nearly half of likely voters could not recall seeing or hearing anything about the Texas Supreme Court in the last year.

But the majority of those voters support broader abortion access, meaning they just need to be educated, Ortiz Jones said. Their polls show that when voters are shown stories of women who say they’ve been harmed by the state’s abortion bans, they are significantly more motivated to vote. So much so, the races move to a statistical tie, the PAC’s polling shows.

“These are not hypotheticals,” Ortiz Jones said. “We give them examples of, unfortunately, something they’ve already read about, and folks are now coming to realize this is a state issue, [the court] is the final arbiter.”

The PAC is airing statewide ads in which women who say they were denied medical care due to the state’s abortion bans point the finger directly at the Texas Supreme Court. The group is also trying to push the idea that these races are the equivalent of other states’ ballot measures, in which voters get to vote specifically on protecting abortion access. Texas does not have a mechanism for voters to directly put a constitutional amendment on the ballot.

“This is the best way that we can have our voices heard at the ballot box on this issue,” said Ortiz Jones. “Unfortunately, we can't have a formal initiative as that's controlled by the state [Legislature]. But that doesn't mean we can't hold these three accountable based on what they've done.”

Abortion rulings

Texas has had two significant abortion challenges go before the state Supreme Court since the overturn of Roe v. Wade.

In the Cox case, the justices ruled that she did not qualify for an abortion under the state’s medical exception. In Zurawski v. Texas, the court ruled against 20 women who say they were denied medically necessary abortions, the most significant challenge to a state abortion law since Roe v. Wade in the 1970s.

Bland authored the Zurawski opinion that found the medical exceptions in the new abortion law were broad enough to withstand constitutional challenge.

Bland wrote that doctors need not wait until a patient is at imminent risk of death to intervene, but that the standard of “reasonable medical judgment” was clear enough to allow doctors to safely practice medicine. Many doctors disagree — a recent study shows more than 70% of Texas OB/GYNs feel the laws prevent them from providing the highest quality evidence-based care to their patients.

Bland was appointed to the court by Gov. Greg Abbott in 2019 and reelected in 2020 with more votes than any other elected official in Texas history. She is up for reelection this term, facing 5th District Court of Appeals Judge Bonnie Lee Goldstein. Neither Bland nor Goldstein responded to requests for comment.

Anti-abortion stances on the court

Democrats are also honing in on the anti-abortion positions of the two other justices up for reelection.

Justice Jimmy Blacklock worked under Abbott at the Office of the Attorney General and the Governor’s Office, where he lead many of the state’s most high-profile cases, including defending abortion restrictions.

Abbott appointed Blacklock to the high court in 2017, saying he didn’t “have to guess or wonder how Justice Blacklock is going to decide cases because of his proven record of fighting for pro-life causes.” Blacklock later said Abbott was referring more generally to their shared judicial philosophy.

In a statement to The Texas Tribune, Blacklock said the courts are not vested with the power to change laws or the Texas Constitution.

“The Texas Supreme Court works hard in every case to understand Texas law as it is — not as we might like it to be — and to apply Texas law fairly and equally to all parties before the Court,” he said.

Blacklock’s challenger, Houston-based state district judge DaSean Jones, is a combat veteran who says on his campaign website that Texans’ constitutional rights are under attack from “far-right ideologies.”

“The rule of law should not be confused for the preservation of conformist values, nationalism, or ethnocentrism,” the website says. “More importantly, they should not be clouded by anti-immigrant, anti-semitic, anti-black, or other caustic beliefs.”

Jones did not respond to a request for comment.

Devine barely survived a grueling primary, and is now facing the toughest general election challenge. A longtime stalwart of the anti-abortion movement, Devine claims he has been arrested more than 30 times protesting outside abortion clinics. He has said church-state separation is a myth and fought to display the Ten Commandments inside his courtroom when he was a district judge.

His first successful bid for the Texas Supreme Court in 2011 focused heavily on his wife’s story of carrying a non-viable pregnancy to term despite doctors’ fears that the seventh pregnancy might kill her. The child died almost immediately, but Devine’s wife survived.

Devine has been criticized for frequently missing work and not recusing himself from a sex abuse case involving his former law firm. He has called his colleagues on the bench “brainwashed” and in a 2023 speech, Devine implied that Democrats were going to cheat to ensure President Donald Trump wasn’t reelected.

Harris County district judge Christine Vinh Weems told the Tribune that she specifically wanted to run against Devine this election season because his attendance record, ethics concerns and anti-abortion record should be a concern to voters.

“If you’re going to express such a strong opinion that you’re willing to be arrested for it, perhaps it’s such a strong opinion that when those kinds of cases come before you, you need to recuse yourself,” she said.

Just days after the overturn of Roe v. Wade in 2022, Weems presided over the first challenge of Texas’ new laws. Or, rather, an old law — Attorney General Ken Paxton had declared that Texas’ original Civil War era abortion ban was back in effect. A group of abortion providers sued, and Weems granted a temporary injunction allowing abortions up to six weeks of pregnancy to resume.

The relief was short-lived. Soon after, the so-called “trigger law” the Legislature passed in 2021 went into effect, and abortions from the moment of conception were once again banned.

Weems said she’s gotten donations from people inside and outside of Texas, especially after the Cox and Zurawski rulings were released. Voters are increasingly educated about the role of the courts and the stances of their elected judges, she said

“They're getting upset about it,” she said. “They are getting enraged about it.”

Power of one 

Texas isn’t the only state where courts are getting a closer look. In Wisconsin last year, the most expensive state Supreme Court race in history saw liberal Janet Protasiewicz defeat conservative Dan Kelly to flip the court to a Democratic majority. In Arizona, two justices are being politically targeted for ruling that a near-total abortion ban from before the Civil War superseded a newer 15 week ban.

Texas Democrats may have an easier time tying abortion to the courts than in other states, since the justices in Texas have actually had opportunities to rule on the issue, said Rebecca Gill, a political science professor at the University of Nevada, Las Vegas. But actively campaigning on specific issues can be tricky in judicial races.

“Even though Texas has partisan elections, I think it is still sort of uncomfortable to think about these judges being representatives of particular policy interests, as opposed to being more technocrats who are specialists at interpreting the law,” she said.

Democrats are also fighting against the reality that even a Blue Wave won’t create a new majority on the high court in this election cycle. But adding even one dissenting voice can be hugely influential, Gill said.

“Judges tend to be pretty good at talking about legal things in a way that makes it sound like the decision they are making is the only possible decision you could come to,” Gill said. “It isn’t until you read a dissenting opinion that you think, well this is also very convincing… if you don’t have that dissenting voice, then it’s very difficult for people who don’t speak legalese to be able to understand how much of these decisions are really discretionary.”

Curry, the UTEP political science professor, said a dissent can also be cited in future court cases, or if a case gets escalated to the U.S. Supreme Court.

But he’s skeptical that voice will be heard on the Texas Supreme Court bench anytime soon. He pointed to the challenges of campaigning statewide for a low-awareness race, and of keeping the attention on these issues and the court’s role in them, for months after they started to fade from the media.

But that doesn’t mean it’s a lost cause for Democrats forever, he said, pointing to Republicans’ decades-long effort to rebalance the U.S. Supreme Court in their favor.

“I think Democrats statewide need to start thinking on a longer timeline than the next immediate election, because groundwork and party building isn't something that just happens,” he said. “But it's been lacking in the state for a fairly long time.”

Disclosure: University of Texas at El Paso has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.