A grassroots movement driven by Texas abortion opponents continues to spread, with Lindale becoming the 41st city in the state to become a “sanctuary city for the unborn” by approving measures outlawing the procedure within their municipalities.
The number of U.S. cities passing similar ordinances is 45, with more considering following suit. Most recently, the city of Pollock in central Louisiana voted earlier this month to become the first city in that state to outlaw abortion with local action. Other cities that have approved measures are Lebanon, Ohio, and Hayes Center and Blue Hill in Nebraska.
The ordinances come as the nation awaits a ruling on what many experts believe will be a successful challenge from a Mississippi case to Roe vs. Wade, the 1973 U.S. Supreme Court ruling that legalized abortion nationwide.
Texas historically has been at the center of the debate; the landmark case began in a Dallas County courthouse. Forty-nine years later, the state enacted Senate Bill 8, which bans abortions after embryonic cardiac activity is detected. A month after the law was enacted, elective abortions fell 60% from the previous month.
The law has withstood legal challenges so far. The U.S. Supreme Court ruled on Dec. 10 to allow the suit to continue in lower courts but with a limited scope.
The U.S. 5th Circuit Court of Appeals sent the challenge from abortion providers to the Texas Supreme Court for certification on a question regarding medical licensing officials. Then, on March 11, the state’s highest court doomed the abortion providers’ federal challenge by deciding the law did not give permission to state licensing officials to enforce or penalize doctors who violate SB 8.
Providers are now waiting for the 5th Circuit to officially end the case.
Though SB 8 enforces a six-week ban, the sanctuary ordinances take it a step further, banning abortion from conception. Even though both restrictions to abortion access have different teeth, their origins come from the same men and, in some ways, began in parallel.
Just across the Texas border in Louisiana sits Hope Medical Group for Women, an abortion provider that has seen a 70% increase of Texas patients since SB 8 was enacted on Sept. 1, officials said last month. The Dallas Morning News reported on the challenges they faced in the month following SB 8′s enactment.
In 2019, Louisiana passed its own “heartbeat” ban. Texas activist Mark Lee Dickson visited Hope Medical before the U.S. Supreme Court ruled that ban unconstitutional. Dickson, the director of East Texas Right to Life, was sidewalk counseling a woman who was considering an abortion.
“The person I was talking to felt like she had to decide soon, but … that was heavy on my heart as I was driving back to Longview,” Dickson told The News.
Dickson said he did his own research and found that a donor had promised land to Hope Medical in Waskom, a Texas town near the Louisiana border.
Concerns arose in Waskom based on the unverified information that the Shreveport abortion provider would move there.
“I didn’t want to see unborn children killed on a regular basis in Waskom, Texas,” Dickson said. He described it as “a small little community known for East Texas football — they shouldn’t be a destination hotspot for abortion.”
Dickson reached out to Bryan Hughes, the Republican representing Texas Senate District 1 who would later author SB 8, the most restrictive abortion ban passed and enacted by a state since Roe.
“If this abortion facility moves to Waskom, Texas, that blood is going to be on Senate District 1′s soil,” Dickson said he told Hughes.
Hope Medical Director Kathaleen Pitman says there was never any merit to Dickson’s claim.
“That was kind of a big joke that popped up back in the 1990s. It was an old article where somebody casually says, ‘I will just cross the border or whatever into Texas.’ Truly, it was a joke. … There was never any plan to go across the border to Texas to open a clinic,” Pitman said.
In June 2019, Waskom City Council members approved an ordinance making them the first city in the nation to be a “sanctuary for the unborn.” All five of the male city council members voted unanimously to make abortion providers criminal organizations, doing so as a preventative measure spurred by Dickson’s warnings.
More cities across the state followed their lead, including Lubbock, which approved its ordinance through a citizen vote, making it the largest city to become a “sanctuary for the unborn” and the first to do it with a vote of residents. Planned Parenthood challenged it but dropped its federal appeal in January.
Hughes said that, in 2020, the joint statement made by elected prosecutors stating that they would not enforce any laws that restricted abortion access prompted their realization that they needed to find a different way of enforcing laws enacted against abortion.
“So we realized we needed to have another vehicle other than relying on the government to enforce the law, and then I’ve got to give that credit to Jonathan Mitchell,” Hughes told The News.
Both Dickson and Hughes credit Jonathan Mitchell, former solicitor general of Texas, for crafting the legal strategy for the city ordinances and later SB 8. Mitchell has also represented many of the cities in their legal challenges pro bono and continues to do so.
In 2018, Mitchell published “The Writ-of-Erasure Fallacy” in the Virginia Law Review. That work ultimately became the framework for how these Texas cities, and later the state, were able to utilize civil enforcement. In the paper, Mitchell explains that the judiciary has no authority to strike down statutes as if they have a “veto-like power.”
Mitchell declined to speak to The News on the record.
“Jonathan [Mitchell] is the one who really encouraged us. If we go the way of private enforcement and do not rely on the government at all, basically, we don’t need the government to enforce the law. And if we do not rely on the government to enforce the law, it does make it more difficult for the law to be challenged pre-enforcement. And you know, pre-enforcement is key,” Hughes said.
Today, more cities are considering following Waskom’s lead, but some are encountering resistance.
The debate is on in San Angelo, where Mayor Brenda Gunter was accused of violating the Texas Open Meetings Act for allegedly deciding without a public discussion to have the citizens of San Angelo vote on an ordinance to make the city a “sanctuary for the unborn” instead of having a vote through the council.
During the meeting, Gunter asked “What is so wrong with letting the citizens vote?”
Added Gunter, “I want the voters, our citizens, to have an opportunity to vote on the issue, just like they did in Lubbock. I have said from the beginning, the citizens vote and determine what they want for their city.”
A public hearing was held on March 1 in San Angelo, and the council rejected the ordinance. Citizens will get to have their say on the ordinance in a November election.
She said there’s no question which way the tide is turning in Texas. “We have not had an abortion clinic in this city for over a decade. Planned Parenthood does not exist in this city. The Texas Legislature has passed the heartbeat act. Abortion has dropped dramatically in this state. We have voted on a path forward for this city for all of our citizens, not just the ones who have spoken or have been present at our meetings,” Gunter said.
Another city in Texas, Plainview, also has hesitated to pass the ordinance. Sen. Charles Perry and Rep. Dustin Burrows sent a letter requesting Mayor Charles Starnes pass the ordinance on to the City Council rather than take it for a vote in November.
Perry told The News that he believes there is generally resistance for “fear of lawsuits,” which Perry says has not been an issue overall with these ordinances thanks to Mitchell.
“He [Mitchell] has defended it and sanctuary city as well as the heartbeat act successfully many times now. So our judicial record is on our side,” he said.
Starnes said that, though he supports the city becoming a “sanctuary for the unborn,” he has concerns about enforcement.
“I personally think that there are facets of that ordinance put forth by Mr. Dickson’s organization that are weak, that are unenforceable, that violate our charter and things like that,” Starnes said.
Starnes also explained that the ordinance is “almost immaterial” in Plainview because the town does not have an abortion provider, as is the case in many of the cities who have enacted the ordinance.
Plainview will vote on the ordinance during the general election in November.
Abilene is also considering an ordinance.
Meanwhile, cities outside of Texas are drawing their inspiration from the ordinances passed in the lone star state. In Louisiana, the city of Pollock’s City Council voted 4-1 for their own ordinance on March 23.
Supporters said they were inspired by what Texas communities are doing.
On Wednesday, Idaho’s governor signed a bill that made the state the first to enact a copy of SB 8, banning abortion in the state after six weeks. Oklahoma’s state House passed a law that models SB 8′s enforcement mechanism last week but took the law a step further by banning abortion from conception unless the mother is in medical danger.