These cities keep trying to ban abortion even though the Constitution says they can't

Lubbock is the latest city in Texas to try to declare itself a “sanctuary city for the unborn.” It’s one of several municipalities that are openly defying the Constitution by functionally enacting a complete abortion ban within their borders.

Since mid-2019, at least 13 cities in Texas have considered such ordinances, and 11 cities in East Texas passed an anti-abortion sanctuary city law. None of those cities had an abortion clinic.

Almost immediately, seven of those East Texas cities were sued by the American Civil Liberties Union Each city’s ordinance declared abortion providers “criminal entities,” attempting to criminalize a constitutional right. The ACLU dropped the lawsuit after all the municipalities removed the criminal entity language. 

The East Texas Right to Life association, which is behind the sanctuary city movement, spun the language change as a victory that would “further ensure that the abortion industry had no chance of convincing a judge to entertain their weak accusations” and said that labeling abortion providers “criminal organizations” was still accurate. The ACLU indicated the language change was “far from perfect,” and they would keep monitoring the language in the ordinances. 

Another lawsuit is still in the works, however. Three organizations that support abortion rights — the Afiya Center, the Lilith Fund, and the Texas Equal Access Fund — sued both East Texas Right to Life and its leader, Mark Dickson. The organizations allege Dickson and East Texas Right to Life defamed their organizations by calling them criminals when they know that is not the case. 

Dickson bragged that getting sued was a victory. He said that defaming the organizations by calling them “criminals” is a statement “rooted not in my own imagination, but in the law written on all of our hearts, in the Constitution of the United States of America, in the Texas Constitution, and in the laws of the great State of Texas.”

Of course, abortion has been enshrined as a constitutional right for nearly 50 years, regardless of what Dickson believes. Dickson is not the only person pursuing this quixotic line of reasoning, though. Twelve Texas residents have sued the three women’s health organizations, saying that the defamation lawsuit is a “deliberate campaign to muzzle the voices of those who support life.” Their logic? Since Texas didn’t repeat its pre-Roe v. Wade statutes criminalizing abortion, it’s still a crime in Texas. That ignores the fact that the Constitution trumps any state law Texas might want to claim is still in effect. 

Meanwhile, Lubbock is soldiering onward with an equally misguided attempt, led once again by Dickson, to ban abortion there. The proposed ordinance would make it unlawful to “procure or perform” an abortion in Lubbock. It would also make it illegal for someone to drive someone to an abortion, give someone money to use for an abortion, or give instructions about self-administered abortions. Further, it would provide members of the fetus’s family the right to sue the provider for emotional distress. 

Lubbock is the epicenter of the latest fight because, unlike the small East Texas cities already sued by the ACLU, a health center that offers abortion will be coming to Lubbock. Planned Parenthood has said it is hiring for a new facility in Lubbock, though an opening date is not yet set. 

Many elected officials in Lubbock are not excited about the idea of the ban ordinance. The city’s “unequivocally pro-life” mayor, Dan Pope, said that telling businesses, including Planned Parenthood, what they can do is “not the lane we need to be in. We need to do the things we were elected to do: provide police and fire services, make sure that our parks are maintained, make sure that we take care of our streets.”

Other officials are equally worried. Lubbock’s city manager said that he has “no ability to enforce an ordinance like this without exposing the city to significant legal and financial risk.”

This concern is warranted. A city in Tennessee, Mt. Juliet, just settled a case with an abortion clinic after that city approved a zoning scheme designed to prevent carafem, an abortion provider, from operating there. After the city passed the zoning laws, the ACLU sued on behalf of carafem. In May, a federal court issued a preliminary injunction blocking the ordinance, saying carafem was likely to prevail at trial.

With the settlement, Mt. Juliet has to allow carafem to perform abortions anywhere the city otherwise allows medical services. Moreover, the city had to agree to pay $225,000 in legal fees, which the city attorney referred to as “a bitter pill to swallow.”

The ACLU has stated it will not back down on these lawsuits. They’re monitoring the language in the Texas sanctuary city cases. And in Tennessee, Andrew Beck, of the ACLU Reproductive Freedom Project, warned lawmakers, saying, “if you attack your constituents’ constitutional right to abortion, we will see you in court. And we will win.”

Published with permission of The American Independent Foundation.