By a unanimous vote, the city council made Ackerly the seventeenth “Sanctuary City for the Unborn” in Texas last night.
The ordinance makes it unlawful to procure, perform, aid, or abet abortions within town limits. The city may enforce it by two methods: the public mechanism and the private mechanism.
The public enforcement mechanism lets the city impose fines on performers of abortions provided that the fine will not create an undue burden on women seeking them. The city cannot collect these fines unless Roe v. Wade is overturned.
The private mechanism, more immediate, holds abortion providers liable in tort to surviving relatives of the aborted child, thus allowing them to sue for damages.
Like previous versions of the ban adopted elsewhere, Ackerly’s ordinance opens with a series of legal facts and claims to help squeeze it through loopholes in Texas and federal law. It notes that Texas has never repealed its statutes against abortion and refers to Texas case precedent stating that such laws will remain in place until the legislature repeals them.
“The Texas murder statute defines the crime of ‘murder’ to include any act that ‘intentionally or knowingly causes the death’ of ‘an unborn child at every stage of gestation from fertilization until birth.’ See Texas Penal Code § 19.02; Texas Penal Code § 1.07,” the ordinance reads.
“Although the statute exempts ‘lawful medical procedures’ from the definition of murder, see Texas Penal Code § 19.06(2), an abortion is not a ‘lawful medical procedure’ under Texas law unless the life of the mother is in danger, see West’s Texas Civil Statutes, article 4512.1 (1974).”
Right to Life East Texas Director Mark Lee Dickson introduced the ordinance in Ackerly.
“I am thankful for the mayor and city council of Ackerly who chose to stand for the lives of the most innocent and vulnerable among us,” Dickson said. “If every city had leaders like them, leaders who were willing to stand for what was right, we would wake up to a very different America.”
Ackerly’s adoption comes on the heels of Lubbock’s rejection two weeks ago.
Under pressure from state lawmakers and pro-life clubs at Texas Tech, the City of Lubbock first refused to consider the ordinance after a consultation with Olson & Olson, a Houston law firm, shored up the city’s official opinion that the ordinance was unconstitutional and would face unwinnable legal battles if adopted. When a petition forced the reluctant council to a public vote on the ordinance, the members unanimously voted against it with most calling it unlawful under the Texas Constitution and the Roe v. Wade ruling despite the fact that the ordinance works through private suits instead of top-down city enforcement until the potential overturn of Roe. Supporters of the ordinance came armed with a letter of legal opinion signed by several Texas attorneys arguing that the ordinance would harmonize with Texas’ standing abortion laws.
“The relevant provision [of the Texas Constitution] prohibits municipalities from enacting ordinances ‘inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.’ The ‘general laws enacted by the Legislature of this State’ include the pre-Roe statutes outlawing abortion, which have never been repealed, and which Olson & Olson refuses to acknowledge,” the letter reads.
So far, the only lawsuit the ordinance has faced came from a number of abortion providers and advocacy groups who took issue with the language of the text. The lawsuit was dropped once the text was tweaked, and as yet the enforcement itself has not met a challenge in court.
Though the city council voted it down, the citizens of Lubbock will get the chance to vote on the ordinance when it appears on the ballot in the next uniform election.
The ordinance, which has favored rural towns, may jump a county and come to Odessa next depending on the outcome of the mayoral runoff election. Candidate Javier Joven named an abortion ban second among his priorities between auditing the budget and designating Odessa a “Sanctuary City for the Second Amendment.”
Below is a copy of Ackerly’s ordinance.
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