Texas AG Greg Abbott embraces Roe v. Wade

By Jon Cassidy | Watchdog.org

Attorney General Greg Abbott, the Republican candidate for governor, presents himself as a pro-life strict constructionist. He was known as the most conservative of Gov. George W. Bush’s appointments to the Texas Supreme Court, and he’s made his name as attorney general by challenging the constitutionality of dozens of federal policies. He’s also endorsed by all the big pro-life groups.

So why is his office embracing Roe v. Wade, and not just embracing it, but giving it a more expansive interpretation than any court in the country?

In endorsing state Chief Justice Nathan Hecht earlier this year, Abbott praised him as “a brilliant judge and a strict constructionist,” and he’s described his own views thus: “During my time as a judge, as a justice, and as attorney general, I’ve had one overarching goal, and that is a strict interpretation and application of the laws and the Constitution.”

Now, plenty of smart people argue about just what “strict constructionism” means, or whether it’s a real judicial philosophy at all. But it does have one irreducible attribute, constitutional scholar Cass Sunstein writes: “Whatever strict construction is, Roe v. Wade is taken, by many people, to be what strict construction isn’t.”

Roe v. Wade represents the opposite of strict construction not just because abortion isn’t mentioned in the Constitution. It’s because the court located a right to abortion within a right to privacy that isn’t mentioned in the Constitution, either. Rather, the court cited a few precedents that dealt with specific privacy rights and extrapolated from them a general right to privacy. The problem was that most of those precedents dealt with one specific right — the Fourth Amendment protection against unreasonable search and seizure. The court stirred those up with a free association case and an obscene materials case and set forth a new principle: “that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”

The idea of a right to privacy is “broad, abstract, and ambiguous,” Justice Hugo Black wrote, but the Roe court offered some vague suggestions as to its boundaries. These “zones of privacy” have “some extension to activities relating to marriage…procreation…contraception…family relationships…and childrearing and education,” the court held.

So, something with some extension to family relationships might be covered somehow, or it might not. It should be obvious why this newly discovered principle withered and nearly died – it’s just too vague to offer much guidance on anything.

Yet it’s that standard that Abbott’s office turned to when I began asking the state’s universities to turn over Law School Admissions Test scores for 127 people I thought might have been involved in the admissions favoritism scandal at the University of Texas. Their LSAT scores are only private at UT, as the Family Educational Rights Privacy Act only covers schools at which an applicant “matriculates.” I figured some of these UT students — who attracted my attention because they kept failing the bar exam — probably had applied at other public law schools around the state.

The schools had to admit that FERPA didn’t cover these records, and state educational privacy law follows the exact contours of FERPA. In their view, I was exploiting a loophole to get records that everybody knows should stay private.

Their problem is that there is nothing in the whole of Texas law or any law passed by Congress that makes those records private. Yet the Attorney General’s office ordered the law schools on May 7 to redact the names of those applicants — while giving me the scores — on the basis that the names fell “within ‘zones of privacy’ which include matters related to marriage, procreation, contraception, family relationships, and child rearing and education.”

So there’s what Roe v. Wade stands for: abortion rights, and the principle that lists of LSAT scores should be redacted. Or at least that’s how things were in Texas for about three weeks. The University of Houston really didn’t want to turn over the scores, and complained that they’d already notified 21 of the 127 students about my request, and sent me a copy of the notice, so I knew their names, which, of course, I had provided in the first place.

Good point, figured the AG’s office, and ordered the records withheld entirely on May 30. The Supreme Court has struggled for decades to determine any clear boundaries to constitutional privacy — owing to the fact that they sort of invented it — but Abbott can see a bright red line that others missed. On one side are law school applicants in groups of 21 or fewer; on the other, groups of up to 127.

The other thing that changed between May 7 and May 30 is that I started publishing the results of months of investigation into the admissions scandal, which got plenty of attention.

The question that interests me isn’t whether Abbott interpreted the law correctly. He didn’t. The Texas Supreme Court has already ruled that lower courts — and the Attorney General, implicitly, who ranks even lower in these matters — must favor disclosure unless there’s a specific reason not to. In a case called Industrial Foundation v. Texas Industrial Accident Board, the court ruled, “we do not believe that a court is free to balance the public’s interest in disclosure against the harm resulting to an individual by reason of such disclosure. This policy determination was made by the Legislature when it enacted the statute. ‘All information collected, assembled, or maintained by governmental bodies’ is subject to disclosure unless specifically excepted.”

Coming up with a brand-new interpretation of a dubious, implied, general constitutional principle that everyone else thinks is about abortion and calling it a specific exception to the Texas Public Information Act relating to LSAT scores is perilously close to outright lawlessness. And we didn’t even get into the fact that constitutional privacy doesn’t even apply to information “when a legitimate public interest in information exists,” as the Attorney General’s office acknowledged in 1987. In other words, if there’s a public policy issue involved, the whole question of privacy is moot.

For Abbott’s opinion to be legit, not only would Roe v. Wade have to apply to LSAT scores, he’d also have to determine that the whole Wallace Hall impeachment/Bill Powers resignation/admissions scandal story was of no legitimate public interest.

The question that interests me is the common sense one: Was I intruding on anyone’s privacy by asking for these records? Some folks certainly thought so. There’s a concept in state law called common-law privacy — which Abbott didn’t invoke here — that might address the concerns of folks who think there’s just something wrong about me getting those records.

The Texas Supreme Court set a very wise standard that acknowledges there are times when otherwise private facts are very much of public interest. So the standard has two prongs: for information to be kept private even though it’s not specifically made private by law its disclosure must be “highly objectionable to a reasonable person” and “of no legitimate concern to the public.”

In this case, an admissions scandal at UT is clearly of legitimate concern, but is disclosing somebody’s LSAT score the sort of “highly intimate or embarrassing facts about a person’s private affairs” that isn’t permissible absent a public interest? In this very specific case, I’d say no, for one simple reason: revealing that somebody is awesome is not the same as embarrassing them.

Considering that the 25^th percentile LSAT score for UT Law students is a 163, which is in the 89^th percentile nationwide, almost all UT law students have scores that are outstanding, not embarrassing. The only people who should be embarrassed are the ones who didn’t deserve to get in.

And that was sort of the whole point.

Contact Jon Cassidy at jon@watchdog.org or @jpcassidy000.