The group of towns, known as the “Sanctuary Cities for the Unborn” initiative, has grown to include 38 cities in Texas with the addition of Anson on Monday night. Though the average population of each town is around 10,000, the initiative and the Heartbeat Act continue to share mutual influence.
While the ordinances vary from town to town, their unchanged centerpiece is the civil enforcement mechanism. The ordinances empower citizens to sue anybody besides the mother herself that performs or aids an abortion in town limits.
Anson, near Abilene, passed the ordinance outlawing abortion with a unanimous 5 to 0 city council vote on Monday evening. It had already given the ordinance initial approval on first reading in September.
Most of the towns that have joined the initiative are grouped in East Texas, the Panhandle, and West Texas along Interstate 20.
The founder of the initiative, pro-life activist Mark Lee Dickson, has been attempting to persuade the city councils of Abilene and San Angelo to adopt their own similar ordinances. After consultation with the city attorney, San Angelo Mayor Brenda Gunter instead successfully presented a resolution in support of the Heartbeat Act, passed during the Texas legislature as Senate Bill (SB) 8.
Despite fruitless efforts so far in these larger cities, Dickson has said that the small towns matter equally and add up to influence.
“While some may criticize the size of some of these cities which have outlawed abortion, it is worth noting that the majority of incorporated cities throughout the United States have less than 5,000 people, and the majority of those cities have less than 500 people,” Dickson stated, quoting census data.
Dickson is a defendant in a challenge to SB 8 currently before the United States Supreme Court. SB 8 also uses a similar enforcement mechanism, allowing “any person” to sue anyone that performs or aids the abortion of an unborn child with a detectable pulse. The mother herself cannot be sued, and fathers that conceived the aborted child out of an act of rape or incest may not sue.
The father provision was added with an amendment by the bill’s House sponsor, state Rep. Shelby Slawson (R-Stephenville), in May. The “sanctuaries” that followed in late June began including this provision as well.
Though the Heartbeat Act’s progress through the Texas legislature appears to have shaped the succeeding “sanctuary” ordinances, the influence goes both ways. Lubbock, as yet the largest town in Texas to adopt the ordinance, successfully defended it against a federal lawsuit from a local branch of Planned Parenthood.
Attorneys defending SB 8 against a separate lawsuit in state court earlier this week cited that ruling, which said that a court could not resolve a real controversy between Planned Parenthood and the City of Lubbock since the actual harm Planned Parenthood claimed to suffer would come from citizen lawsuits, not the city government itself.
Attorney Jonathan Mitchell, former solicitor general of Texas, has promised to defend any of the participating cities in court if they are sued. Mitchell explored civil lawsuits as an enforcement mechanism in a 2018 law review article on the writ-of-erasure fallacy, referring to erroneous descriptions that court injunctions erase or “strike” laws from the books when in fact they only stop governments from enforcing them. With Mitchell’s direct involvement, the idea became the central feature of both the “sanctuary” ordinances and the Heartbeat Act.
Mitchell represents the amici states joining Texas in its defense of SB 8 at the Supreme Court. He is also representing defendants sued alongside Dickson in a parallel challenge to the law at the Supreme court brought by several Texas abortion providers.
Correction: A previous version of this story said that the Anson City Council first read the ordinance in December. We regret the error.
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