State of Texas Office of the Attorney General of the State of Texas Texas Medical Board Texas Health and Human Services Commission And Ken Paxton, in His Official Capacity as Attorney General of the State of Texas v. Lazaro Loe, Individually and as Next Friend of Luna Loe, a Minor Mary Moe and Matthew Moe, Individually and as Next Friends of Maeve Moe, a Minor Nora Noe, Individually and as Next Friend of Nathan Noe, a Minor Sarah Soe and Steven Soe, Individually and as Next Friends of Samantha Soe, a Minor Gina Goe, Individually and as Next Friend of Grayson Goe, a Minor Pflag, Inc. Richard Ogden Roberts III, M.D. David L. Paul, M.D. Patrick W. O'malley, M.D. And American Association of Physicians for Human

Supreme Court of Texas
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No. 23-0697
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State of Texas; Office of the Attorney General of the
State of Texas; Texas Medical Board; Texas Health and Human
Services Commission; and Ken Paxton, in his official capacity as
Attorney General of the State of Texas,
Appellants,

v.

Lazaro Loe, individually and as next friend of Luna Loe, a minor;
Mary Moe and Matthew Moe, individually and as next friends of
Maeve Moe, a minor; Nora Noe, individually and as next friend of
Nathan Noe, a minor; Sarah Soe and Steven Soe, individually
and as next friends of Samantha Soe, a minor; Gina Goe,
individually and as next friend of Grayson Goe, a minor;
PFLAG, Inc.; Richard Ogden Roberts III, M.D.; David L. Paul,
M.D.; Patrick W. O’Malley, M.D.; and American Association of
Physicians for Human Rights, Inc. d/b/a GLMA: Health
Professionals Advancing LGBTQ Equality,
Appellees

═══════════════════════════════════════
On Direct Appeal from the
201st District Court, Travis County, Texas
═══════════════════════════════════════

JUSTICE BUSBY, concurring.
The principal question that the parties in this case have brought
to the Court is whether the fundamental natural right of parents to
make decisions concerning the care, custody, and control of their
children is infringed by the Texas Legislature’s choice to limit the
availability of certain medical therapies for children diagnosed with
gender dysphoria. To answer this question, we examine whether
parental control over the sort of medical decision at issue is, “objectively,
deeply rooted in [our] history and tradition” and therefore a protected
liberty under the Texas Constitution. Ante at 18 (quoting Washington
v. Glucksberg, 521 U.S. 702, 720-21 (1997)).
As the Court and Justice Blacklock explain, gender dysphoria is
a relatively new diagnosis and there is substantial debate in the medical
community regarding the benefits and harms of the therapies limited by
this law, which do not promote normal biological functioning. Ante at
2-3 & n.2, 24 & n.13; ante at 14-16 (Blacklock, J., concurring). A
parental right to demand such therapies for a recently identified
diagnosis is not deeply rooted in our history and tradition. Under our
precedent, then, the statute faces only rational-basis scrutiny, which it
satisfies. Ante at 27.
Like Justices Blacklock and Young, I do not understand the
Court’s opinion to (1) change the nature or focus of the Glucksberg
inquiry into whether parents are asserting a fundamental right deeply
rooted in our history and tradition, (2) modify the scope of parents’
traditional authority to make medical decisions for their children, or (3)
alter our precedent that the government may not intrude into this zone
of traditional parental authority absent extraordinary justification or,

2
in some circumstances, not at all. Ante at 13-14, 20-22 (Blacklock, J.,
concurring); post at 8-12 (Young, J., concurring). Instead, the Court
simply applies the established Glucksberg inquiry to the facts of this
case, holding “only that novel treatments for a novel condition are
generally within the Legislature’s power to regulate without facing
heightened scrutiny.” Ante at 23. Because I agree with that holding, I
join the Court’s opinion.
I write separately to make clear that the scope of traditional
parental rights remains broad and well supported by our precedent.
And when conducting the Glucksberg inquiry, courts focus on whether
the parents’ claimed interest falls within the scope of this liberty from
government control over traditional child-rearing decisions, not whether
the interest falls outside the scope of the government’s power to
legislate. An individual right that extends only to conduct the
government chooses to permit is no right at all. Rather, under our
federal constitutional structure, fundamental individual rights retained
by the people are “exceptions to the legislative authority.”1 Our Texas
Constitution has unequivocally adopted this understanding of
individual rights, providing expressly that such rights are “excepted out
of the general powers of government.” TEX. CONST. art. I, § 29.
To begin, we must understand the asserted right and its source.
“The history and culture of Western civilization reflect a strong tradition
of parental concern for the nurture and upbringing of their children.
This primary role of . . . parents . . . is now established beyond debate as

1 THE FEDERALIST N O. 78, at 524 (Alexander Hamilton) (Jacob E. Cooke

ed., 1961).

3
an enduring American tradition.” Wisconsin v. Yoder, 406 U.S. 205, 232
(1972). “This natural parental right has been characterized as
‘essential,’ ‘a basic civil right of man,’ and ‘far more precious than
property rights.’” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)
(paraphrasing Stanley v. Illinois, 405 U.S. 645, 651 (1972)). Less than
a decade after Texas joined the United States, we expressed “no doubt
[that] a [parent] has very ample authority in the control, management,
rearing, and education of his children.” Byrne v. Love, 14 Tex. 81, 91
(1855).
Not only do these natural parental rights find protection in
various provisions of the United States and Texas Constitutions, they
also shape what measures are within the powers that the people have
delegated to their representatives in government. As Justice Lehrmann
correctly observes, 2 our Court has been steadfast in acknowledging
“[t]he natural right which exists between parents and their children [as]
one of constitutional dimensions.” Wiley v. Spratlan, 543 S.W.2d 349,
352 (Tex. 1976). For example, we have characterized this right as a
“fundamental liberty interest” under the Due Process and Due Course
Clauses, In re N.G., 577 S.W.3d 230, 234-35 (Tex. 2019), which “protects
the . . . right of parents to make decisions concerning the care, custody,
and control of their children.” In re C.J.C., 603 S.W.3d 804, 811 (Tex.
2020) (quoting Troxel v. Granville, 530 U.S. 57, 67 (2000)). Other judges
have explained that traditional parental rights may also—or

2 Post at 17-19 (Lehrmann, J., dissenting).

4
alternatively—find protection as “unalienable Rights”3 that are
“retained by the people” under the Ninth Amendment,4 or as privileges
or immunities of citizenship. 5 Under whatever theory, this State—and
this Court—have long “recognize[d] . . . that the interest of the child and
of society is best promoted by leaving [traditional parenting decisions]
untrammeled by the surveillance of government.” Legate v. Legate, 28
S.W. 281, 282 (Tex. 1894).
I agree with the Court that this right is not absolute. Few rights
are. Even the unalienable right to life, 6 which also finds robust
protection in the Due Process and Due Course Clauses, may be taken
from those who commit capital murder. 7 But the fundamental rights of
parents offer very substantial protection against government
interference with decisions that fall within their scope. For example, we
have applied strict scrutiny to laws concerning the termination of
parental rights, Wiley, 543 S.W.2d at 352, and explained that temporary
court orders affecting children “cannot act to infringe” on “[p]arental

3 THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

4 U.S. CONST. amend. IX; see Martin v. Hunter’s Lessee, 14 U.S. 304, 325

(1816) (acknowledging the people’s “right . . . to reserve to themselves those
sovereign authorities which they might not choose to delegate to
[government]”).
5 E.g., In re H.S., 550 S.W.3d 151, 177 (Tex. 2018) (Blacklock, J.,
dissenting) (citing Troxel, 530 U.S. at 80 (Thomas, J., concurring)).
6 THE DECLARATION OF INDEPENDENCE para. 2.

7 Compare U.S. CONST. amend. V, and TEX. CONST. art. I, § 19, with
Jurek v. Texas, 428 U.S. 262, 276-77 (1976) (rejecting Eighth Amendment
challenge to Texas death penalty statute), TEX. PENAL CODE § 19.03, and TEX.
CODE CRIM. PROC. art. 37.071.

5
control and autonomy” when the “parent adequately cares for his
children.” In re Scheller, 325 S.W.3d 640, 644 (Tex. 2010). Outside this
scope, however, the government retains the same power of legislation
that it has always had. Ante at 26-30 (concluding that “plaintiffs
incorrectly characterize the scope of the constitutionally protected
interest” and applying rational-basis scrutiny in resolving due-course
challenge to statute).
Thus, the pertinent question in deciding what protection parental
decisions receive in a given case is not whether the right is absolute, it
is how to define the right’s limits. As discussed above, the Glucksberg
inquiry determines whether the type of parental decision in question—
when carefully described—is an exercise of deeply rooted rights. If so,
it receives “heightened protection against government interference.”
Glucksberg, 521 U.S. at 720.
For this reason, it would be wrong to conclude from the opinions
in today’s case that parents’ fundamental rights generally take their
limits from the nature of the state power being exercised rather than
from “this Nation’s history and tradition.” Id. at 721. An individual
constitutional right checks a broad grant of state power to legislate, not
the other way around. 8

8 I recognize that there might be exceptional cases in which the grant of

a narrow or specific power to legislate would be inconsistent with construing a
general right to provide protection for individual conduct inconsistent with
such legislation. I do not disagree with the Court that “express constitutional
authorization for . . . the challenged law” would be relevant in that case. Ante
at 26 n.14. But this is not such a case.

6
“[R]estrictions on government power . . . such as contained in the
Bill of Rights . . . come into play . . . only where the Government
possesses authority to act in the first place.” Nat’l Fed. of Indep. Bus. v.
Sebelius, 567 U.S. 519, 535 (2012). Determining the government’s
power to legislate is a necessary first step, therefore, as the scope of an
individual right need not be considered if the law itself is unauthorized.
Yet if there is government power to act, individual constitutional rights
provide “restrictions on [that] power,” id., protecting conduct that falls
within their scope.9
As the Supreme Court explained in Wisconsin v. Yoder, “[t]here is
no doubt as to the power of a State . . . to impose reasonable regulations
for the control and duration of basic education. . . . Providing public
schools ranks at the very apex of the function of a State. Yet even this
paramount responsibility . . . yield[s] to the right of parents to provide
an equivalent education . . . .” 406 U.S. at 213 (emphases added). Other
examples abound. To name just two, state power to pass laws
prohibiting discrimination in public accommodations must yield to First

9 See also Zivotofsky v. Kerry, 576 U.S. 1, 48 (2015) (Thomas, J.,
concurring in part) (describing “the protections for retained individual rights
under the Constitution” as a “key limitation[] on [Congress’s] jurisdiction”);
Pointer v. Texas, 380 U.S. 400, 414 (1965) (Goldberg, J., concurring) (observing
that the Constitution “limit[s] the power of both federal and state governments
in favor of safeguarding the fundamental rights and liberties of the individual,”
“deny[ing] to [government] the power to impair a fundamental constitutional
right”); Block v. Hirsh, 256 U.S. 135, 160 (1921) (McKenna, J., dissenting)
(“[T]he Constitution is . . . a restraint upon government, purposely provided
and declared upon consideration of all the consequences of what it prohibits
and permits, making the restraints upon government the rights of the
governed. And this careful adjustment of power and rights makes the
Constitution what it was intended to be and is, a real charter of liberty . . . .”).

7
Amendment rights, and Congress’s plenary authority over immigration
must be exercised consistent with the Equal Protection Clause.10
James Madison made this very point when introducing the initial
draft of the Bill of Rights on the floor of the House of Representatives,
observing that “a bill of rights” would provide “particular exceptions to
the grant of power.” 11 Similarly, Alexander Hamilton wrote in the
Federalist Papers that our “limited constitution” contains “certain
specified exceptions to the legislative authority.” 12 And the Texas
Constitution addresses the relationship between government power and
retained individual rights directly, making explicit what is implicit in
our federal constitutional scheme:
To guard against transgressions of the high powers herein
delegated, we declare that every thing in this “Bill of
Rights” is excepted out of the general powers of
government, and shall forever remain inviolate, and all
laws contrary thereto . . . shall be void.

10 303 Creative LLC v. Elenis, 600 U.S. 570, 592 (2023) (“[N]o public
accommodations law is immune from the demands of the Constitution.”) ;
Sessions v. Morales-Santana, 582 U.S. 47, 52 (2017); see also Granfinanciera,
S.A. v. Nordberg, 492 U.S. 33, 51-52 (1989) (holding Congress “lacks the power
to strip parties . . . contesting matters of private right of their constitutional
right to a jury trial”).
11 1 ANNALS OF CONG . 456 (1789) (Joseph Gales ed., 1834). Madison
also emphasized that the bill should not be understood to “disparage those
rights which were not placed in that enumeration” or imply that such rights
“were intended to be assigned into the hands of the General Government, and
were consequently insecure.” Id.
12 THE FEDERALIST NO. 78, at 524.

8
TEX. CONST. art. I, § 29. Because we have held that fundamental
parental rights are protected under the Due Course Clause of our Bill of
Rights, this declaration applies here.
If government power instead trumped individual rights whenever
an authorized law has a rational basis, troubling questions would follow.
Could the Legislature use its express constitutional authority over the
practice of medicine to require the resuscitation of a critically ill child
despite a fit parent’s do-not-resuscitate order, or to forbid the
resuscitation of children with severe mental disabilities so that limited
resources could be used to help other children? Could it make heroic
medical measures legally unavailable to elderly Texans to save money
on social service programs, or prevent parents from obtaining prenatal
care for pregnant girls to discourage teen pregnancy? Or could the
Legislature invoke its fundamental interest in protecting child welfare
to forbid any corporal discipline by parents?
Fortunately, our constitutional structure does not leave the
answers to such challenging and consequential questions to a rationality
test that can depend on the eye of the beholder. Instead, government
power is only the beginning of the analysis. If the asserted fundamental
liberty interest is deeply rooted in our Nation’s history and tradition, it
receives heighted constitutional protection against otherwise-
authorized government interference. See Glucksberg, 521 U.S. at
720-21. Because I agree with the Court that the interest asserted here
does not receive such protection under the Glucksberg inquiry, I concur.

9
J. Brett Busby
Justice

OPINION FILED: June 28, 2024

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