Texas Unborn Sanctuary Bill Passes Key Court Hurdle
A unique arrangement in a Lubbock municipal ordinance, making abortion illegal within city limits, helped lead to the dismissal of a federal court case against it.
LUBBOCK, Texas — A Texas city’s ordinance outlawing abortions and declaring itself to be a “sanctuary city for the unborn” survived a federal court challenge and went into effect June 1.
Voters in Lubbock on May 1 passed an ordinance declaring abortion “at all times and at all stages of pregnancy” an act of murder and outlawed performing or aiding in abortions within city limits. The measure also contains an unusual provision: It cannot be enforced by any public official. Instead, enforcement lies in the hands of family members of an aborted child or with private citizens, who can file a lawsuit against anyone (except for the mother) who was involved in aiding or carrying out an abortion.
Planned Parenthood of Greater Texas Surgical Health Services sued the city to prevent the ordinance from going into effect and asked that it be invalidated.
But U.S. District Court Judge James Wesley Hendrix dismissed the case brought against Lubbock June 1. In his decision, Hendrix dismissed the case for lack of jurisdiction, finding that the plaintiffs had been unable to show him an injury that could be redressed in court. A decision in his court would not be able to stop private enforcement of the city’s law, he said, adding that state courts needed to rule on the issue of whether citizens could bring lawsuits over abortions.
Joe Pojman, executive director of Texas Alliance for Life, told the Register the judge’s decision “was a really good sign that Planned Parenthood will not have an easy way to dismiss the law in the federal courts.”
“We don’t think the final chapter has been written in Lubbock, however,” he added.
While Lubbock’s Planned Parenthood facility is no longer scheduling abortions, he predicted the organization would continue to look for ways to fight the ordinance and prevent similar laws from springing up.
“But we are delighted that no abortions are being committed for the time being,” he said.
Rebecca Parma, senior legislative associate at Texas Right to Life, told the Register that with the dismissal of the case against Lubbock and the signing of Texas’s SB 8, which bans abortions after the detection of a fetal heartbeat, “the first six months of 2021 have been a great victory for preborn Texans and the pro-life movement in Texas. These two wins are great and will save thousands of lives.”
Parma said that since the federal court case against Lubbock was dismissed more cities have become interested in becoming sanctuary cities for the unborn.
“We’ll see more cities continue to pass these ordinances and be bold, especially with Lubbock passing it and holding up the first attempt at a lawsuit,” she said.
Sanctuary Cities for the Unborn
Lubbock is one of 31 municipalities in the last three years that have passed “sanctuary city for the unborn” ordinances, which generally include the provisions that leave enforcement exclusively to individuals bringing lawsuits.
Waskom, Texas, passed the first unborn sanctuary city ordinance in 2019. The ordinances have been largely the work of Mark Lee Dickson of Right to Life of East Texas.
The city’s ordinance declares abortion to be an act of murder, and makes it unlawful to perform, procure, or aid an abortion in Lubbock, although it offers an exception when the mother’s life is at risk.
The measure, however, explicitly states public officials cannot currently enforce it or even threaten to apply it, unless the U.S. Supreme Court’s Roe v. Wade and Planned Parenthood v. Casey decisions were overturned or another court decision substantially alters the legal situation of abortion restrictions. Instead, the ordinance makes “any person, corporation or entity” responsible for an abortion, other than the mother, civilly liable to relatives of the aborted child, and empowers any private citizen in Texas to bring a lawsuit to enforce the ordinance.
SB 8, the Texas Heartbeat Act, which was signed May 19 by Gov. Greg Abbott, also leaves enforcement of the bill to “private civil actions” and bars enforcement by the state or any of its officials.
One of the strengths of the sanctuary city ordinances and Texas’s heartbeat bill is that the mother of an aborted child cannot be sued, Parma said.
“It intentionally does not allow lawsuits against the woman, and we completely support that. It’s important not to penalize the mother but to place the penalty on the person pushing for abortion,” she said.
Pojman said private enforcement provisions have been in some pro-life laws before but until the unborn sanctuary ordinances, “there has never been one that we know of that’s been exclusively private enforcement. It’s a brand-new approach and it has a lot of people hopeful but it still hasn’t been court tested.”
Josh Blackman, constitutional law professor at South Texas College of Law Houston, told the Register, “I think it’s a creative and clever law. It’s creative in how they’ve tried to get around this problem of pre-enforcement challenges and clever around enforcement.”
Blackman said private enforcement of legislation has some precedent, typically with fraud lawsuits against government contractors. What is novel about Texas’s heartbeat bill or the unborn sanctuary laws is that “there is no role at all for government enforcement,” he said.
Government officials, like a state attorney general, can be sued over a law before it goes into effect to prevent it from being enforced. Since these bills leave enforcement in the hands of private individuals, there are no grounds for preventing the law from going into effect.
Teresa Collett, professor at University of St. Thomas School of Law in Minneapolis and director of the school’s Pro-life Center, said, “In this instance, what they’ve done is said this isn’t an action by the government and therefore the 14th Amendment’s ‘due process’ clause, which is where the putative abortion right exists, is not in play.”
“The strategy seems to me sound in that in order for one to challenge a law based on its constitutional questions, you have to have state action,” Collett told the Register.
More Court Tests Await
Collett said the exclusively private enforcement provision has been a sound strategy to avoid pre-enforcement challenges, but Lubbock could certainly face another court test once someone involved in an abortion is sued under the law.
“Federal courts wait for laws to go into effect and then can rule based on proving damage,” she said. Once an abortion provider has been sued, for instance, it will have standing to contest the law.
Pojman said he was concerned about how Lubbock’s ordinance and the heartbeat bill would handle challenges based on precedents in Roe and Casey, which concluded that a “state or municipality cannot pass any limitation that would ban abortions before viability or pose substantial obstacles to a woman obtaining an abortion before the fetus achieves viability.”
“This approach does have a steep hill to climb in state or federal courts,” he said.
The case with the most bearing on the future of these laws, though, could be an upcoming U.S. Supreme Court case, Dobbs v. Jackson Women’s Health Organization, which would address whether all pre-viability prohibitions on elective abortions are unconstitutional.
A decision in that case is expected by June 2022. “There’s a long way to go,” Pojman said, “but it is possible they could finally do what entire pro-life community has hoped and prayed for the past 48 years.”
Nicholas Wolfram Smith is a correspondent for the Register.
Editor’s Note: This article was amended after initial publication.