Jane Bland

Posted to Facebook July 13, 2017

"As a Justice on the First Court of Appeals, I work every day to defend the rule of law, to improve the efficiency and fairness of the justice system for all Texans, and to act with honesty, integrity, and respect toward all who come before our court." —Justice Jane Bland

Justice Bland was appointed to the Supreme Court of Texas by Governor Greg Abbott and assumed office in 2019. 

Governor Abbott said in a statement."'Jane Bland is an experienced and proven legal expert whose respect for the Constitution is unmatched[.]" 'As she assumes her new role on the Supreme Court, the people of Texas can rest assured that she will uphold the rule of law and be a good steward of the justice system. I am honored to appoint Jane to the highest court in Texas and am grateful for her service to our great state.'"

“In 2010, Chief Justice John Roberts presented [Jane Bland] with the William H. Rehnquist Award, given to a state court judge who exemplifies the highest level of judicial excellence, integrity, fairness, and professional ethics.”"

Jane Bland was recognized as Judge of the year four times by The Texas Association of Civil Trial and Appellate Specialists.

Jane Bland's campaign website states “[she] will preserve, protect, and defend our United States and Texas Constitutions.” 

State v. Loe, 692 S.W.3d 215 (Tex. 2024). Justice Huddle delivered the opinion of the court, in which Chief Justice Hecht, Justice Boyd, Justice Devine, Justice Blacklock, Justice Busby, Justice Bland, and Justice Young joined. Justice Blacklock filed a concurring opinion, in which Justice Devine joined. Justice Busby filed a concurring opinion. Justice Young filed a concurring opinion. Justice Lehrmann filed a dissenting opinion. *Involved Key Issue*

Holding(s): The court held that the plaintiffs did not demonstrate probable right to relief. The Court reversed and vacated the trial court’s order. The Court, “conclude[d] the Legislature made a permissible, rational policy choice to limit the types of available medical procedures for children, particularly in light of the relative nascency of both gender dysphoria and its various modes of treatment and the Legislature’s express constitutional authority to regulate the practice of medicine. [The Court] therefore conclude[d] the statute d[id] not unconstitutionally deprive parents of their rights or physicians or health care providers of an alleged property right in their medical licenses or claimed right to occupational freedom. [The Court] also conclude[d] the law d[id] not unconstitutionally deny or abridge equality under the law because of sex or any other characteristic asserted by plaintiffs.  

Blacklock’s concurrence: Blacklock concurred affirming that the Texas Legislature has the authority to uphold the Traditional Vision of human nature and regulate such treatments, aligning with a collective moral judgment to protect children. He concluded that while parental autonomy in medical decisions regarding children is significant, the right to disrupt a child’s biological functions through transgender treatments is not constitutionally protected. 

Blacklock discussed the deep conflict between the Traditional Vision, which views biological sex as immutable and opposes medical interventions for gender dysphoria as harmful, and the Transgender Vision, which prioritizes gender identity and supports such treatments as necessary for mental well-being. He emphasized that the dispute is rooted in fundamental philosophical and moral differences rather than medical facts. Blacklock argued that neither doctors nor judges should resolve these issues; instead, the Texas Constitution empowers the people, through their legislature, to address moral questions about childhood transgender therapy in line with the Traditional Vision. 

Blacklock argued that gender identity is fundamentally rooted in biology and genetics, rejecting the idea of "sex assigned at birth" as a misleading construct. (7)  He contended that the belief in transgender identities can lead to harmful medical practices, particularly regarding minors. He argued that the Transgender Vision would have been inconceivable to the Constitution's framers and that Texans of that era would not have recognized such a right. While acknowledging the historical strong belief in parental rights regarding children's medical care, he maintained that there is no historical precedent for the legislature being powerless to prohibit practices it considers harmful. 

He concluded that the legislature’s regulation of these treatments is justified under the Texas Constitution, as it reflects a moral and political judgment about what constitutes legitimate medical care, independent of prevailing expert opinions or societal trends. He cautioned against allowing politically influential views to override constitutional protections, suggesting that such a stance would reflect a judicial bias rather than adherence to constitutional text and history. 

Background: A new law in Texas prohibited medical treatments for children aimed at transitioning their biological sex. Prior to its enforcement several parents of children with gender dysphoria, along with affected physicians and groups, sued to block the law, claiming it was unconstitutional. The trial court found that the law likely violated the Texas Constitution and issued a temporary injunction against its enforcement. The question was whether the plaintiffs had demonstrated a probable right to relief regarding the law's constitutionality. The plaintiff’s argued that S.B. 14 was facially unconstitutional for three reasons: (1) it infringed on the fundamental rights of parents to make decisions about their children's care, violating Article I, Section 19 (the Due Course of Law Clause); (2) it deprived Texas physicians of a vested property interest in their medical licenses and infringed on the occupational freedoms of healthcare providers, also in violation of the Due Course of Law Clause; and (3) it discriminated against transgender children and their parents based on sex and transgender status, violating Article I, Section 3 (the Equal Protection Clause) and Article I, Section 3a (the Equal Rights Amendment). (13) 

Applicable Law(s):  “Senate Bill 14, captioned a statute ‘relating to prohibitions on the provision to certain children of procedures and treatments for gender transitioning, gender reassignment, or gender dysphoria.’” (5) “The statute prohibits a physician or health care provider from performing certain actions on a child6 when those actions are performed for one of two purposes: (1) ‘transitioning a child’s biological sex as determined by the sex organs, chromosomes, and endogenous profiles of the child’; or (2) ‘affirming the child’s perception of the child’s sex if that perception is inconsistent with the child’s biological sex.’ TEX. HEALTH & SAFETY CODE § 161.702. The statute identifies three forms of prohibited surgical intervention: (1) ‘a surgery that sterilizes the child’; (2) ‘a mastectomy’; and (3) removal of “any otherwise healthy or non-diseased body part or tissue.’” (5-6) Section 161.702 provides two exceptions to its prohibitions. 

In re State, 682 S.W.3d 890 (Tex. 2023). Per Curiam. Justice Devine and Justic Blacklock concur in the order granting relief. *Involved Key Issue*

Holding(s): The Court concluded that the trial court erred when it “issued an order restraining the Attorney General from enforcing the abortion laws against Dr. Karsan[.]”  (3) The Court concluded that a physician's “good faith belief” that pregnant mother met medical-necessary exception for an abortion was insufficient to establish that physician's opinion was a “reasonable medical” judgment as required under the exception.  The Court found that the law specified that an abortion is permissible only when a woman has a life-threatening condition, determined by a physician's "reasonable medical judgment." (2) The Court “conditionally granted relief and directed the trial court to vacate the temporary restraining order.” (7)

Analysis: The court found that while the doctor indicated that the medical necessity exception might apply, they did not clearly assert that the woman's condition was life-threatening as required by law. The Court emphasized that it is the responsibility of medical professionals, not judges, to make these determinations. The court said " [i]f a doctor, using her 'reasonable medical judgment,' decides that a pregnant woman has such a condition, then the exception applies, and Texas law does not prohibit the abortion." (2) "Though the statute affords physicians discretion, it requires more than a doctor’s mere subjective belief. By requiring the doctor to exercise 'reasonable medical judgment,' the Legislature determined that the medical judgment involved must meet an objective standard." (4) These laws reflect the policy choice that the Legislature has made, and the courts must respect that choice. Part of the Legislature’s choice is to permit a significant exception to the general prohibition against abortion. And it has delegated to the medical—rather than the legal—profession the decision about when a woman’s medical circumstances warrant this exception." (1)  

Background: Kate Cox was pregnant when she received a diagnosis regarding the baby. Her husband, Justine, Kate’s doctors and Kate “sue[d] to prevent the enforcement of the Texas laws that generally prohibit abortion.” (1)The trial court "ruled that a prospective abortion would 'fall within the medical exception' to Texas’s abortion laws. Based solely on the verified pleading, it issued an order restraining the Attorney General from enforcing the abortion laws against Dr. Karsan and others related to the case." (3) The State [sought] relief from the trial court’s order." (3)  

Applicable Law(s): The abortion law prohibits abortion except when "in the exercise of reasonable medical judgment, the pregnant female . . . has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced." (2)

Abbott v. Anti-Defamation League Austin, Sw., & Texoma Regions, 610 S.W.3d 911 (Tex. 2020). Per Curiam. Justice Bland signed opinion. Justice Guzman filed a concurring opinion, in which Justice Lehrmann joined. Justice Blacklock filed a concurring opinion. *Involved Key Issue*

Holding(s): The Court held that "[t]he plaintiffs ha[d] not established a probable right to an injunction blocking the October Proclamation. As a result, they were not entitled to a temporary injunction, and the trial court erred in granting that relief. The judgment of the court of appeals [wa]s reversed, and the temporary injunction issued by the trial court [wa]s dissolved." (17) Thus, the Court denied the petition for a temporary injunction against the governor’s requirement that there only be one mail-in drop off site per county. (6) The Court found that the governor’s proclamations had expanded rather than impaired voting rights. (6) The Court held that the Governor was permitted by the Disaster Act’s emergency powers to amend his earlier emergency proclamations even if the content was not directly tied to the disaster. (7-8) The Court held that the October Proclamation placed a “lesser burden” on the right to vote, which according to precedent does not trigger strict scrutiny. (11) The Court held that disparate impact claims due to county’s geographic size differences were not relevant because county size also had many impacts on elections under normal circumstances (16). 

Blacklock's Concurrence: In his concurrence, Justice Blacklock emphasized the need to balance voter options with the integrity of the electoral process, underscoring that the Texas Legislature is primarily responsible for this balance. While the Governor had asserted authority to modify election laws in response to the pandemic, this case revolved around whether the Governor or a district court should make the necessary adjustments. Blacklock argued that the judiciary should not override the Governor's policy decisions, as these officials were elected to make such judgments. He criticized the lower courts for prioritizing judicial fact-finding over the democratic process, noting that the "facts" at issue involved predictive judgments best suited for legislative and executive branches. He expressed concern that applying a balancing test to voter rights could lead courts to act as policymakers, undermining the separation of powers. Ultimately, Blacklock concurred with the Court’s opinion, advocating for the proper delineation of judicial authority in relation to executive and legislative roles.

Guzman’s concurrence: Guzman argued that the judiciary’s function is only to say what the law is and not what it should be. (2) He argued that the dispositive question in the case was whether in expanding ballot access the governor harmed voting rights to which the answer was no. (3)

Background: On March 13, 2020, the Texas Governor declared a disaster due to COVID-19, triggering emergency powers to alter state regulations. This included changes to mail-in voting procedures for the 2020 election. On July 27, the Governor allowed voters to deliver mail-in ballots in person before Election Day, extending the hand-delivery period. However, on October 1, a proclamation limited this delivery to a single designated location per county prior to Election Day, while still allowing multiple sites on Election Day itself. The October Proclamation was challenged in federal court, but the Fifth Circuit upheld it, stating it still expanded voting opportunities compared to prior law. Plaintiffs later filed a state lawsuit arguing the October Proclamation overstepped the Governor's authority, infringed voting rights, and disproportionately affected voters in larger counties. A trial court temporarily blocked the October Proclamation, citing increased risks and burdens on voters. 

State v. Zurawski, 690 S.W.3d 644 (Tex. 2024) Justice Bland delivered the opinion of the Court. Justice Lehrmann filed a concurring opinion, and Justice Busby filed a concurring opinion, in which Justice Lehrmann joined. *Involves Key Issue.*  

Holding(s): The Court vacated the trial court’s order concluding that the trial court’s injunction departed from the law as written without constitutional justification[.]” (38) The Court clarified that “Texas law permits a life-saving abortion. Under the Human Life Protection Act, a physician may perform an abortion if, exercising reasonable medical judgment, the physician determines that a woman has a life-threatening physical condition that places her at risk of death or serious physical impairment unless an abortion is performed. The law permits a physician to intervene to address a woman’s life-threatening physical condition before death or serious physical impairment are imminent.” (38)  Overall, the Texas Supreme Court ruled against the plaintiff's that challenged Texas' abortion ban. The Court held that Texas law does not permit abortions in cases of severe fetal abnormalities, and concluded that it was up to doctors to determine when an abortion was legally justified by exercising "reasonable medical judgement."

Background: Texas law allows for life-saving abortions, permitting physicians to perform them when a pregnant woman has a life-threatening condition that could lead to death or serious physical impairment. Following the Supreme Court's decision to overturn Roe v. Wade, Texas generally prohibits abortions, with three exception for specific medical emergencies. The suit was brought by the Center for Reproductive Rights, representing several women and two physicians, against the State, the Attorney General, and the Texas Medical Board, challenging certain provisions of Texas's abortion laws. The Center sought (1) a clear interpretation of the law that allows life-saving abortions and (2) changes to the law to expand the circumstances under which abortions should be permitted. They argued that without judicial support for their proposed abortion policy, the existing laws were unconstitutional. The Center claimed that these complications fell under the law permitting life-saving abortions but alleged that physicians hesitated to perform the necessary procedures due to fear of legal repercussions, resulting in delays or lack of care. The Center aimed to stop the enforcement of three sets of Texas abortion laws: the Human Life Protection Act, former Penal Code articles regarding abortion, and the Heartbeat Act.  The State moved to dismiss the case, asserting that no state official had enforced the laws against the plaintiffs and that the Attorney General and Texas Medical Board lacked authority to enforce criminal laws. The State also claimed the trial court lacked jurisdiction to interpret the law under the Declaratory Judgments Act and contended that the existing law was consistent with the Texas Constitution. The trial court issued a temporary injunction that prevented the State from enforcing Texas’s abortion bans against physicians who provided care for patients with specific conditions. These included complications that posed a risk of infection or made continuing the pregnancy unsafe, conditions worsened by pregnancy that could not be effectively treated during it or required invasive interventions, and fetal conditions likely to result in non-viable births. The court ruled that enforcing the abortion laws would conflict with certain provisions of the Texas Constitution. Additionally, it declared the Heartbeat Act unconstitutional, despite the Center not challenging it directly. The State appealed the trial court's decision. 

Applicable Law(s):  

• “The Human Life Protection Act permits an abortion when: in the exercise of reasonable medical judgment, the  pregnant female on whom the abortion is performed,  induced, or attempted has a life-threatening physical  condition aggravated by, caused by, or arising from a  pregnancy that places the female at risk of death or poses a  serious risk of substantial impairment of a major bodily  function unless the abortion is performed or induced.” (20) 
• “Former Texas Penal Code articles 1191–1196,4 last amended in 1925, and now codified at Chapter 6 1/2 of the revised civil statutes, mak[e] it a criminal offense to provide an abortion[.]” (5)  
• “The Heartbeat Act, found in Health and Safety Code Sections 171.203–205, a private-enforcement statute.” (5) 

In re State, 602 S.W.3d 549 (Tex. 2020) Chief Justice Hecht delivered the opinion of the Court, in which Justice Green, Justice Guzman, Justice Lehrmann, Justice Devine, Justice Blacklock, and Justice Busby joined. Justice Guzman filed a concurring opinion, in which Justice Lehrmann and Justice Busby joined. Justice Boyd and Justice Bland issued opinions concurring in the judgment. *Involved Key Issue*

Holding(s): The Court denied the State’s petititon for writ of mandamus. The Court said “we are confident that the Clerks and all election official will comply with the law in good faith.” (2) Additionally, the Court held that lack of immunity to COVID was not a “disability” according to statutory mail-in ballot requirements (2). The Court concluded that it "agree[d] with the State that a lack of immunity to COVID-19 is not itself a 'physical condition' that renders a voter eligible to vote by mail within the meaning of § 82.002(a)." (24) The Court noted that“Justice Boyd and Justice Bland would hold that a lack of immunity to COVID-19 is a ‘physical condition’ under § 82.002(a), though a voter would not be entitled to vote by mail without a ‘likelihood’ that voting in person would injure the voter’s health.” (21) 

Bland's concurrence: Justice Bland concurred with the court's judgment while disagreeing on the interpretation of "physical condition" under the Texas Election Code. She argued that a lack of immunity to COVID-19 should be considered a physical condition, as it relates to the state of a person's immune system and can contribute to health risks associated with in-person voting. Bland highlighted that the Election Code allows voters with disabilities to request mail-in ballots, defining disability broadly to include any physical condition that could lead to health risks during voting. She noted that while the lack of immunity itself does not automatically qualify a voter for mail-in voting, it could do so when combined with individual health history and the local voting environment, creating a likelihood of injury from in-person voting. She emphasized the importance of the individual voter's assessment of their condition and circumstances, asserting that election officials should not overstep by making determinations about a voter's health. Instead, it is up to voters to decide whether their lack of immunity presents a sufficient risk to qualify as a disability. Bland's concurrence underscored the necessity for a broader interpretation of what constitutes a physical condition to ensure that eligible voters are not disenfranchised.

Background: The Texas Democratic Party (TDP) and others sued the Secretary of State and the Travis County Clerk, seeking a declaration that the Texas Election Code's provision for voting by mail due to "disability" included voters concerned about social distancing during the COVID-19 pandemic. The TDP argued for a mandatory injunction to ensure mail-in ballots were accepted for those citing COVID-19 as a disability. The trial court granted a temporary injunction, stating that voters without established immunity to the virus met the definition of "disability" under the law. This injunction prevented Travis County from rejecting such ballots and restricted state officials from issuing contrary guidance. The State of Texas appealed the decision, claiming that fear of contracting COVID-19 alone does not qualify as a disability for mail-in voting.

Applicable law:“Chapter 82. Section 82.002(a), entitled ‘Disability’, provides that ‘[a] qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.’” (16)