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
══════════
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 YOUNG, concurring.

The primary way to determine state policy is through the process of
self-government. That is even true—perhaps especially true—for settling
profound disputes that affect individuals’ deeply felt values and our shared
identity as a State. As Justice Blacklock observes, Senate Bill 14 and the
litigation that followed its enactment implicate political, philosophical,
and moral issues of immense importance to citizens who are in intractable
disagreement. Politics, philosophy, and morality have always been
engines for the law and have given rise to our most sweeping and
treasured constitutional guarantees, as well as many landmark statutes.
Making those choices lies at the core of self-government, which belongs to
the People and their representatives in the first two branches.
The third branch—the judiciary—participates in self-government
in a different way. Our authority extends only to saying what the law is
and then to applying that law to disputes. If we do our job properly, we
facilitate self-government by clarifying the law so that, if the People want
it to be different, they may adjust it as they see fit. Our task is essentially
the same even when we address a constitutional challenge to a statute.
The ultimate question for us then is whether the People have already
exercised their power to govern themselves by withdrawing a topic from
the ordinary political processes. Sometimes, therefore, the judicial duty
is to determine which of two competing exercises of self-government has
a higher claim to the status of being the law.
Legal difficulty often has no correlation with legal importance, let
alone with political, philosophical, or moral significance. Identifying the
correct legal rule can be very hard when the stakes are low; it can be very
easy when the stakes are high. Today’s case, I conclude, is weighty
primarily because of its consequences in real life, not because of its legal
difficulty. The Court correctly concludes that the Constitution has not
withdrawn from the legislature’s authority the subject matter that

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Senate Bill 14 regulates. That is the entirety of today’s decision and it is
enough to discharge the judiciary’s obligation. It means that the Court
now returns the issue to the other branches and the People in their
continuing exercise of self-government. I therefore join the Court’s
opinion and its judgment.
At the same time, however, self-government sometimes literally
means self-government—the autonomy of an individual or a family to
conduct their affairs without needing permission from the majoritarian
political process. The fundamental right of parents over the upbringing
of their children—the right invoked today—is one such example. The
parents before us forcefully argue that Senate Bill 14 trespasses into a
constitutionally protected zone of parental autonomy, and that the courts
must protect that zone from intrusion by the State. Our dissenting
colleague likewise powerfully defends the concept of parental autonomy,
particularly in the medical context.
The parents’ claims and our colleague’s arguments warrant
respect. I accordingly write separately to note my agreement with a basic
premise of those arguments: that there is a zone of parental authority
that is inviolate from incursions by ordinary political means. Delineating
the extent of that zone is a matter of great importance, so I describe my
understanding of how the judiciary makes that determination for any
given claimed exercise of parental authority. There is peril in erring in
either direction, either by mistakenly expanding or contracting an
unenumerated fundamental right. Casting the right too broadly amounts
to the judicial usurpation of the right of self-government by the People;
casting the right too stingily amounts to the judicial usurpation of the

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right of self-government by a person. It is this analysis that can seem
difficult, so I explain why today’s decision correctly, and in the end simply,
resolves the specific claim before us.

I

As the Court acknowledges, the parents here seek to provide their
children with what the parents believe to be medical care that their
children genuinely need. This acknowledgment does not divide the Court.
See, e.g., ante at 2–4 (opinion of the Court); post at 1 (Lehrmann, J.,
dissenting). It is easy to see that the “parents seeking transgender
therapy” for their children here, and many other parents, unquestionably
“act out of genuine love and conviction.” Ante at 16 (Blacklock, J.,
concurring). The parents frame their claim by invoking the fundamental
right of all fit parents, which this Court has long recognized and which
strikes me as among the most powerful claims they could make based on
an unenumerated right. “[O]ur law recognizes the parent-child
relationship as sacred: ‘This natural parental right [is] a basic civil right
of man[] and far more precious than property rights.’ ” In re J.W., 645
S.W.3d 726, 752 (Tex. 2022) (Young, J., concurring) (second and third
alterations in original) (quoting In re A.M., 630 S.W.3d 25, 25 (Blacklock,
J., concurring in denial of review) (in turn quoting Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985))).
At the same time, it is challenging to define the exact contours of
this right. Courts ordinarily look to the original public meaning of legal
texts to determine the scope of a right or duty. The fundamental right of
parents, however, is unenumerated. This textual silence is problematic
because it is dangerous (and often self-aggrandizing) for courts to

4
attempt to define a constitutional concept that is unexpressed in the
Constitution’s text. Enforcing a judicial conception of an unwritten
constitutional right displaces the function of self-government. If a court
is wrong, it has forced our citizens to collectively obey commands that
their Constitution has not (and thus that the People themselves have
not) actually made. One can simultaneously agree that unenumerated
rights exist and worry about the judiciary abusing any authority it may
have to say what they are. For that reason, among others, how to protect
unenumerated rights is typically left to the political process of self-
government.
The U.S. Supreme Court and this Court, however, acknowledge a
narrow exception. Sometimes the reason that a right is unenumerated is
that it is so fundamental to our legal tradition and culture that reducing
it to writing may never even have occurred to the drafters. When—as an
objective matter—there could be almost no dispute about its existence,
the right is reasonably recognized as part of the background assumptions
of the law.
Parental authority is part of that background, which is why it is
never particularly controversial to acknowledge its status as a
fundamental right, at least as a general matter. To see why, compare it
to some of our most treasured enumerated rights, such as the freedom of
speech or the free exercise of religion. I claim those rights for myself and
would do so whether they were written down or not. The Framers of the
United States and Texas Constitutions would too. But those rights had
to be enumerated precisely because they have been repeatedly violated
and transgressed throughout Anglo-American legal history. So too with

5
most of the rest of the Bill of Rights. Many protections for criminal
defendants, for example, reflect a history of general (and often quite
specific) patterns of governmental abuse. The Sixth Amendment right of
a defendant “to be confronted with the witnesses against him” has a deep
and dark history of violation, warranting specific textual protection. See,
e.g., Crawford v. Washington, 541 U.S. 36, 50 (2004).
The core functions of parenthood are different. There has never
been any real doubt or dissent about the obligations and authority of
parenthood in our legal tradition and culture (and I imagine that this is
true globally). Importantly, there is no history of governmental
interference with the essential autonomy of parenthood that is analogous
to the historical interference with textually expressed rights. Our
People’s traditions and laws have always regarded that autonomy as
self-evident. This pattern is essential for the judiciary to recognize any
unenumerated fundamental right: an objective, widespread, unbroken,
and respected practice of the right is what allows courts to recognize it
without fearing that they themselves are becoming lawmakers.
Nonetheless, courts should warily approach any claim of a
fundamental but unenumerated right. The U.S. Supreme Court has
treated the due-process clause as protecting such rights, but emphasized
that judges must “ ‘exercise the utmost care whenever we are asked to
break new ground in this field,’ . . . lest the liberty protected by the Due
Process Clause be subtly transformed into the policy preferences of the
[judiciary].” Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (quoting
Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)). Such a
“transform[ation]” does not necessarily entail bad faith on the part of

6
judges—rather, it reflects an acknowledgment by the Court with the
fewest restraints on its power that it can be easy to mistake one’s own
values or beliefs for the commands of the law. As Glucksberg explained,
therefore, unenumerated rights must be specific and granular, not
general or vague. The risk of the judiciary invading the ordinary
processes of self-government is too great to accept anything short of
precision. See id. at 721.
Glucksberg continues to provide the best analytical framework for
assessing claims of unenumerated rights because it properly strikes the
balance. It accepts that some rights are indeed so deeply engrained that
committing them to writing would hardly have occurred to the Founding
generation. At the same time, Glucksberg’s test tempers judicial
authority to recognize such rights with proper humility by insisting on
specificity, both as to what the right is exactly and as to how our history
and traditions prove the unbroken and unchallenged existence of that
specific right. The Court today follows Glucksberg’s guidance in this
way, see ante at 14, 17–23, which is part of why I join its opinion.
Whether unenumerated parental rights are properly grounded in
the federal due-process clause (or the Texas due-course clause) or
elsewhere is a wholly distinct question. There has been ample criticism
of the federal choice. Rather than a manifestation of substantive due
process, Justice Scalia described the “right of parents to direct the
upbringing of their children” as “among the ‘othe[r] [rights] retained by
the people’ which the Ninth Amendment says the Constitution’s
enumeration of rights ‘shall not be construed to deny or disparage.’ ”
Troxel v. Granville, 530 U.S. 57, 91 (2000) (Scalia, J., dissenting)

7
(alterations in original). Justice Blacklock has likewise expressed
skepticism about the due-process clause being the proper constitutional
framework. In re H.S., 550 S.W.3d 151, 177–78 (Tex. 2018) (Blacklock,
J., dissenting). And without doubting the right, I have expressed doubt
about whether the due-course clause of the Texas Constitution is the
correct lens through which to view the fundamental right of parenthood
in Texas law. See Tex. Dep’t of State Health Servs. v. Crown Distrib.
LLC, 647 S.W.3d 648, 674 (Tex. 2022) (Young, J., concurring).
But none of that matters much for present purposes; what does
matter is that parents’ rights exist and are properly defined, at least by
courts, through the specificity and granularity that Glucksberg describes.
The other branches, of course, are free to expand even enumerated rights
far beyond the text, and they certainly may by statute protect the rights
of parents and children even more substantially than the courts do. But
absent a constitutional amendment, the first two branches may not
restrict those rights—a further reason for judicial caution and precision,
as always in constitutional adjudication.

II

The foregoing principles yield two results. The first is that there
is a considerable zone of parental authority or autonomy into which the
State may not intrude with a mere rational basis—and perhaps in some
instances into which the State may not intrude at all. When viewed at a
proper level of specificity, in other words, there are some parental rights
that likely are even “absolute.” The second result is that the claim of
parental authority in this case is outside the zone of authority or
autonomy, and so the ordinary process of self-government remains intact.

8
A

My first point is, I hope, not terribly novel: like the Texas
Constitution, the federal Constitution “has been held to bestow upon
parents unique and near-absolute powers of control over other persons,
namely their children.” Anne C. Dailey, In Loco Reipublicae, 133 Yale
L.J. 419, 423 (2023). True enough—it is a sensible default rule and has
manifested in specific contexts over the past century. See, e.g., Meyer v.
Nebraska, 262 U.S. 390, 399, 401 (1923) (recognizing a “liberty” interest
in the right of parents to “establish a home and bring up children” and “to
control the education of their own”); Pierce v. Soc’y of Sisters, 268 U.S.
510, 534–35 (1925) (holding that the “liberty of parents and guardians”
includes the right “to direct the upbringing and education of children
under their control”). Pierce recognized that “the right” is “coupled with
the high duty” of “prepar[ing] [children] for additional obligations.” 268
U.S. at 535. The Court again acknowledged parents’ right to direct the
education of their children in Wisconsin v. Yoder: “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 the
parents in the upbringing of their children” makes the role that parents
play “established beyond debate as an enduring American tradition.” 406
U.S. 205, 232 (1972). The Court put it succinctly in Troxel:
[S]o long as a parent adequately cares for his or her children
(i.e., is fit), there will normally be no reason for the State to
inject itself into the private realm of the family to further
question the ability of that parent to make the best decisions
concerning the rearing of that parent’s children.

530 U.S. at 68–69 (emphasis added). In fact, parents’ right to the care,

9
custody, and control of their children is so valued and deeply entrenched
that the Supreme Court recognized a presumption that fit parents act in
the best interests of their child. Parham v. J.R., 442 U.S. 584, 602 (1979).
This Court has repeatedly embraced similar views as lying within
our constitutional jurisprudence. As the Court notes, we have quoted the
passage from Troxel that is indented above. Ante at 15 (quoting In re
Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006)).
It is clear that there is a constitutional zone of parental autonomy,
as all these cases confirm. At the same time, “parental autonomy” is a
category, not a single rule or right—specificity is required to identify what
falls within the zone. The law is still somewhat opaque on that point.
“[T]he Supreme Court has not described the contours of the
[fundamental] right [of parenthood] with clarity.” In re H.S., 550 S.W.3d
at 175 (Blacklock, J., dissenting).
The answer is to view claims of parental authority through the lens
that Glucksberg provides for any assertion of an unenumerated right.
The foregoing analysis shows that, probably more than in any other
context, parents start with a presumption favoring their authority
because our legal tradition generally excludes all others from exercising
authority over a child’s upbringing. Fit parents have a monopoly, or
something close to it, in making decisions for their children. Particular
actions and decisions can be analyzed to ensure that a parent’s claimed
right is indeed one that is deeply rooted in our society’s legal traditions
and history. It is hard to imagine, for example, a serious contention that
anyone other than a fit parent could direct a child’s religious upbringing.
Who else would have that authority? A stranger? Some more distant

10
relative? The government? The same analysis would apply to many other
aspects of child rearing—the choice of clothing, diet, reading material,
entertainment options, companions, and the like. Within the broad range
of lawful options for such topics, neither the government nor anyone else
may countermand the authority of fit parents to determine what is best
for their children. The government may not intrude into the scope of
parental authority as to such matters absent extraordinary justifications,
or in some cases, perhaps not at all.
To determine whether an action does not fall within the historic
concept of caring for and raising children—thus enabling State
regulation—we must analyze each claim at a specific level. This is why,
for example, the legislature may penalize anyone, whether parent or
stranger, for subjecting children to sexual abuse or exposing children to
high risks of physical danger or deprivation. Such unlawful conduct has
never been protected. The legislature has the authority to pass generally
applicable laws for the protection of children that do not violate parents’
rights but instead reflect parents’ obligations to their children.
Conduct that constitutes abuse and neglect, after all, is not the
kind of conduct that our history, tradition, or law has ever characterized
as within the zone of options for a parent, even though parents have
extraordinarily broad discretion regarding how to care for children. Take
the diet example from my list above. Parents can essentially choose what
they deem proper for their children’s nourishment—but wholly denying
sustenance to their children is not a choice that constitutes care, custody,
or control. If it were otherwise, the State would be helpless to protect the
children who need it the most: the small minority of children whose

11
parents are not fit and who, instead of defending their children, either
leave them defenseless or affirmatively subject them to harm.
When a particular course of conduct is not deeply rooted in our
State’s history and traditions as part of the zone of lawful choices for
parents, courts may not declare, in the name of the Texas Constitution,
that the State is powerless to legislate. Our precedents suggest that
parental authority is absolute within the realm of lawful choice—but
there are areas altogether outside that realm.

B

This brings me to my second point: that the claim in this case
ultimately founders because, at the appropriate level of specificity, there
is no history or tradition that allows parents the sort of sweeping
authority over all newly developed medical procedures that is demanded
here. I agree with the view implicit in Justice Blacklock’s concurrence
that, even had the parents relied on a powerful enumerated right like the
free exercise of religion, they likely would not have prevailed. Ante at 15
(Blacklock, J., concurring). Courts have sometimes recognized that the
state’s interest in preventing serious medical harm to children may
override parents’ interest in making medical decisions for those children.
See Jehovah’s Witnesses v. King County Hosp. Unit No. 1, 390 U.S. 598
(1968) (per curiam), aff ’g 278 F. Supp. 488 (W.D. Wash. 1967).
The corollary to the limitations on government power as to
parental choices that are deeply embedded in our history and traditions
is this: the State retains considerable authority over new developments
that raise novel and previously unconsidered questions arising in areas
that never were regarded as lying within parents’ authority. For actions

12
or decisions that lack such objective roots, judges will rarely be able to
affirmatively conclude that “the people of this [State] ever agreed to
remove debates of this sort—over the use of innovative, and potentially
irreversible, medical treatments for children—from the conventional
place for dealing with new norms, new drugs, and new public health
concerns: the democratic process.” L.W. v. Skrmetti, 83 F.4th 460, 471
(6th Cir. 2023). That democratic process—self-government—is never
completely played out, but for now, the elected representatives of the
People of Texas have acted in a way that they believe upholds their duty
to regulate the practice of medicine, see ante at 16–17, 21–22 (opinion of
the Court), and to protect children from new and controversial
treatments that the legislature is entitled to regard as harmful.
Parents and citizens may passionately disagree with the
legislature’s conclusion or its depiction of these treatments as “harmful.”
They have every right to try to overturn the legislature’s ban on those
treatments—but they cannot achieve that result in the courts of Texas.
The use of drugs or surgery to counteract a child’s normal biological
development and function is not a course of conduct that our legal
traditions have committed to the realm of parental discretion. It is
within the zone of lawful regulation, including regulation of the medical
profession. For that reason, the Constitution leaves the matter to the
process of self-government.

Evan A. Young
Justice
OPINION FILED: June 28, 2024

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