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When it comes to creative ways to oppose abortion, Texans seem to lead the pack.

Earlier this fall, America’s second-largest state captured the attention of the nation when the U.S. Supreme Court allowed the state’s SB 8 abortion statute— banning the procedure as early as six weeks into pregnancy—to stand. Its most controversial provision gave private citizens the right to enforce the law by suing abortion clinics and reporting anyone who helps women obtain abortions. The Biden administration immediately appealed the law, and on Oct. 6, a federal judge in Austin granted its request, temporarily blocking its enforcement. Two days later, the Fifth Circuit Court of Appeals reinstated the law, which at this writing is now in force. While most abortion centers remained closed, a few individuals have openly broken the law, characterizing it as “extreme.”¹

The handwringing and outraged editorials on TV shows and news sites nationwide have presented Texas as a living replica of Gilead, the dystopian society featured in the Hulu series “The Handmaid’s Tale.” Meanwhile, while everyone remains fixated on SB 8, another anti-abortion initiative is slowly spreading across Texas; a movement that has gone largely unnoticed but is slowly nibbling away at abortion access by decrees. It is known as the “sanctuary cities” movement, where a town simply votes in an ordinance to outlaw any abortions within city limits. As of mid-October, the total number of cities signing on as sanctuary cities numbered 38, with 35 in Texas, two in Nebraska, and one in Ohio. (More on this in a moment.)

First, some background on how many Texans have applied themselves to ending abortion in any way possible. Unlike most states, Texas never repealed its laws outlawing and criminalizing abortion (except to save the mother’s life) that were in place when Roe v. Wade was decided in 1973. Neither did four other states: Mississippi, Alabama, Arkansas, and Oklahoma. It is in these states where the resentment about federal overreach on abortion is strongest.

It’s also worth mentioning that Texas birthed Roe v. Wade, thanks to the efforts of Linda Coffee and Sarah Weddington, two lawyers out of Austin and Dallas who began planning in 1970 how to overturn Texas’s abortion statutes.

(The “Wade” in the case was Henry Wade, the Dallas district attorney, and the “Roe” was plaintiff Norma McCorvey.) To the public eye, pro-choice women like Gov. Ann Richards, newspaper columnist Molly Ivins, and U.S. Rep. Barbara Jordan seemed most representative of the general sentiment among Texans toward abortion.

And yet, as a recent Texas Monthly article² points out, the blowback against abortion began soon after Roe v. Wade, starting with a religious refusal law passed by the state legislature in 1977 that backed doctors not wanting to perform the procedure.

“It took fifty years, but they were successful,” the article mourned (“they” being prolifers).

More state restrictions got tacked on, and the winds began to seriously shift in 2003 with the “Woman’s Right to Know Act,” a law requiring a doctor to show the woman pictures of the unborn child and resources for post-natal care. In 2011, requirements were added to the act mandating that women have a sonogram of their fetus 24 hours before undergoing an abortion, and that they be given the chance to listen to the child’s heartbeat.

In 2013, the Texas Omnibus Abortion Bill, also known as House Bill 2, required abortion clinics to have the same sort of medical equipment, standards, and staffing as surgical centers—and also required the doctors performing abortions to obtain admitting privileges at a nearby hospital. This ruling, which would have closed 75 percent of the state’s abortion clinics, was challenged in a court case known as Whole Woman’s Health v. Hellerstedt, and was struck down by the U.S. Supreme Court in 2016.

But the law had some effect: The number of facilities offering abortions went from 44 in 2014 to 35 in 2017, representing a 25 percent decline, according to the Alan Guttmacher Institute.³ Also in 2017, the state legislature passed House Bill 214, which required women to pay an extra premium for their health insurance if they planned to get an abortion. The aim was to ensure that abortion opponents weren’t having to subsidize the procedure through their health plans.⁴

As abortion access has diminished in Texas, it has fallen to places like the largest Planned Parenthood clinic in the country—an abortion supercenter on Houston’s Gulf Freeway that has ambulatory capabilities—to pick up the slack. Abortion centers have been concentrated in large cities, leaving some reaches of the state, especially its western half, without a clinic closer than 200 miles.

In early August of this year, the Guttmacher Institute estimated that if SB 8 is not struck down by the Supreme Court, the average one-way driving distance to a clinic would rise from 12 miles to 248 miles, affecting women in rural areas the most.⁵

Interestingly, it was in a rural area that the sanctuary cities movement began back in June 2019 in the East Texas city of Waskom near the Louisiana state line. The pace of sign-ups rapidly increased in 2021 once the Democrats won the White House.

“Ever since the Biden Administration said they wanted abortion access in every zip code, we’ve seen quite a bit of steam,” said Mark Lee Dickson, the movement’s founder.

Dickson, 36, wears a backwards baseball cap jammed down on his brown hair, sports a beard, and has been identified as the pastor of a Sovereign Love Church in Longview, Texas (which had no online listing that I could find). He has expended so much energy promoting the sanctuary cities concept that the Huffington Post described him as a “traveling salesman” for abortion bans.⁶ He’s hoping that eventually hundreds of cities will join up.

The sanctuary cities idea started when prolifers in East Texas got wind that Hope Medical Group, a large abortion facility in Shreveport, La., might establish a clinic just across the state line. Waskom would have been on the road leading to it.

“There was concern. There were prior statements made by the facility, which led Texans to believe the center might expand,” said Dickson, who reached out to the mayor of Waskom.

“He asked, ‘What I can do?’ and I said pass an ordinance outlawing abortion within city limits.”

Slowly, the idea began to spread, chiefly because it was doable and a good legal stratagem for making it difficult for any abortion facility to set up shop. The sanctuary cities movement relies on the same legal stratagem used by SB 8: a “private enforcement mechanism” authorizing private citizens to enforce the law via civil lawsuits against anyone violating it. In other words, if anyone does get an abortion within city limits, an aborted child’s parents, grandparents, and siblings can sue anyone who aids and abets. The mother is exempt from being sued.

The effort slowly gained one small municipality after another until a big fish—the Texas Panhandle city of Lubbock, with roughly a quarter-million in- habitants—signed up. In September 2020, a group of citizens filed a petition proposing an ordinance. The ink on the petition was barely dry when Planned Parenthood opened a clinic in town and started doing abortions.

Not surprisingly, the city council voted unanimously⁷ in a marathon meeting in November to reject the ordinance on the grounds that it violates state and U.S. constitutions. But the city’s charter allows voter-proposed ordinances to be put up for vote, and backers placed it on the ballot this year. On May 1, 62 percent of the voters favored the ordinance, which went into effect June 1. Planned Parenthood filed a complaint against the city to block the ordinance, claiming it placed an undue burden on women. But, in a 50-page ruling, U.S. District Judge James Wesley Hendrix dismissed the case on the grounds that Planned Parenthood lacked standing to sue the city.

The reason goes back to the “private enforcement” concept. There are plenty of ways to stop a local, county, or state government from enforcing a law ac- cording to what’s known as “public enforcement.” But private enforcement works differently. As Hendrix pointed out in his ruling, Planned Parenthood had to show injury based on the city’s conduct. But the city had nothing to do with the ordinance; moreover, the ordinances were being enforced by private citizens, not the state. This made it tough for Planned Parenthood to sue a government on constitutional grounds.

Animal rights groups have long used the idea of private-citizen enforcement, notes Wesley Smith in an essay on the Discovery Institute website.⁸ Several have pioneered the concept of “animal standing,” which means that animals have rights equal to those of people and that their human allies can file lawsuits on their behalf. It was only a matter of time before someone thought to apply the concept to abortion.

The idea of “sanctuary cities” in recent decades comes from the immigration movement, whereby city or county officials refuse to hand over illegal immigrants for deportation. A 2017 Washington Post article9 estimated that 69 such “sanctuary counties” exist—chiefly in California, the Seattle area, Miami, New York, Chicago, Denver, Las Vegas, and Washington, DC. (None of the 69 are in Texas.)

The Texas version of sanctuary comes from the “cities of refuge” referred to in the biblical account in the book of Joshua, chapter 20, referring to cities that provide protection from avenging relatives for people who unintentionally commit manslaughter. The sanctuary cities laws would instead protect children from those who intentionally wish to murder them through abortion.

The Lubbock ordinance provides a good example of what actions these laws consider to be illegal. It reads in part:

(1) ABORTION—It shall be unlawful for any person to procure or perform an abortion of any type and at any stage of pregnancy in the City of Lubbock, Texas.

(2) AIDING OR ABETTING AN ABORTION—It shall be unlawful for any person to knowingly aid or abet an abortion that occurs in the City of Lubbock, Texas. This section does not prohibit referring a patient to have an abortion which takes place outside of the city limits of Lubbock, TX. The prohibition in this section includes, but is not limited to, the following acts:

(a) Knowingly providing transportation to or from an abortion provider;

(b) Giving instructions over the telephone, the internet, or any other medium of communication regarding self-administered abortion;

(c) Providing money with the knowledge that it will be used to pay for an abortion or the costs associated with procuring an abortion;

(d) Coercing a pregnant mother to have an abortion against her will.

Damages are a minimum of $2,000, not including court costs and attorney’s fees.

How these ordinances—which allow the aborting mother to go scot-free yet prosecute those who help her—will be carried out remains to be seen. What they have primarily accomplished is to make abortion within the limits of a sanctuary city too risky.

The concept of rule-by-ordinance is not completely new, according to Dickson. “In Naples, Florida, you cannot feed the ducks. It is against the law,” he says. “You cannot throw candy in a parade in Odessa, Texas. It is against the law. Cities pass ordinances all the time.”

(Speaking of Naples, some residents wish to make that municipality Florida’s first sanctuary city. They plan to keep requesting an abortion ban at city council meetings until such an ordinance be passed. So far, the council isn’t buying it.10) Each small town is only a dot compared with the large abortion-friendly cities like Austin and Houston, Dickson adds, but together they begin forming sizeable clumps of real estate where one cannot get an abortion. And what happens in Texas doesn’t stay in Texas; “All over the United States, even places outside the USA have reached out to us,” Dickson says, for help on how they can implement similar laws.

The immediate strategy is to confine abortion centers to the cities and to send a message to mega-groups like Planned Parenthood that you don’t mess with rural Texas.

“For Planned Parenthood to open an abortion facility in an extremely conservative area—it just didn’t fly,” he said. Conversely, “If we were to attempt this in Austin, it’d be interesting.”

Austin is labeled as a “city of death” on the sanctuary cities website because of its zeal in providing “abortion logistics” funding to cover childcare, hotel, and gas for women seeking abortions. In 2019, it was the first city in the country to amend its budget to provide abortion grants to women seeking them.

Although more cities are in the pipelines to outlaw abortion within their limits, there have been setbacks, such as with Omaha, Texas, which was the second city to pass a sanctuary cities ordinance. Its city attorney then persuaded the city council to substitute a non-binding resolution in its place.

But there are others that foresee a storm and want abortion providers to understand where the no-go zones are. As Keri Schunk, the mayor of Blue Hill, a city in south-central Nebraska, said to KNOP-TV, the scene on the ground could change at any time.¹¹

“I wasn’t sure it was necessary for small-town Blue Hill. Would anyone ever open an abortion clinic here?” she asked. “Probably not, but I’ve learned being proactive is much easier than being reactive. Today, more than ever, we must strive for a better tomorrow, or society will suppress and surpass us.”

 

NOTES

 

1. “Why I violated Texas’s extreme abortion ban,” by Alan Braid, Sept. 18, 2021, in the Washington Post.

2. “Going, Going, Gone: How abortion rights were eroded in Texas,” by Mimi Swartz, Oct. 7, 2021, for the Texas Monthly.

3. “State facts about abortion: Texas,” the Alan Guttmacher Institute, January 2021.

4. “Abbott signs bill restricting insurance coverage of abortion,” by Shannon Najmabadi, The Texas Tribune, Aug. 15, 2017.

5. “Impact of Texas’ Abortion Ban: A 20-fold increase in driving distance to get an abortion,” The Alan Guttmacher Institute, Aug. 4, 2021.

6. From “The traveling salesman bringing abortion bans to a Texas town near you,” by Melissa Jeltsen for the March 2, 2020, Huffington Post.

7. From “Abernathy, Poynor, Become the 25th and 26th ‘Sanctuary Cities for the Unborn’ in Texas,” by Isaiah Mitchell in the May 12, 2021, The Texan.

8. From “Laurence Tribe Opposes Private Enforcement of Abortion Laws but Okays It for Animal Rights,” by Wesley J. Smith in the July 20, 2021, issue of Humanize, a Discovery Institute publication.

9. From “How sanctuary cities work, and how Trump’s blocked executive order could have affected them,” by Darla Cameron in the Washington Post, Jan. 18, 2017.

10. “Protestors will meet at the Naples city hall asking for a ban on abortions,” by Lauryn Moss for Fox-4 TV, Aug. 18, 2021.

11. From “Blue Hill is second Nebraska town to outlaw abortion in city limits” on April 15, 2021, on KNOP-TV News.

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Original Bio:

Julia Duin is Newsweek’s new contributing editor for religion. She has also worked as an editor or reporter for five newspapers, published seven books and has master’s degrees in journalism and religion. Her latest book, Finding Joy: A Mongolian Woman’s Journey to Christ, tells the story of Yanjmaa Jutmaan, a Mongolian activist for women’s rights, a counselor, and statistics expert. Julia lives in the Seattle area.