JudicialLocal NewsAttorneys and Activists: Inside the Push to Ban Abortion in Abilene

Insiders say Abilene's city attorney has cautioned the mayor about the proposed ban, a common trend among even the reddest Texas towns.
January 27, 2022
Tammy Fogel has been spending the pale, windblown Abilene weekends by the side of Highway 83 at the edge of the parking lot for New Hope Church, encouraging passersby to sign a petition in hopes of outlawing abortion in city limits. A baby car seat holds up a homemade sign in the open trunk of her Infiniti, a steel travel mug emblazoned with the Star of David in the cupholder. A professionally printed sign five feet wide hangs from the luggage rack, directing drivers to Project Destiny Abilene.

A thumbs-up flashes in the window of a passing car that caught her attention with a brief honk, but on average, she says drivers flip her off about once an hour.

“If I’m getting flipped off, I know I’m doing well,” Fogel laughed.

Fogel is one of several citizens around Abilene gathering signatures for a petition to put an ordinance outlawing abortion on the ballot for a citywide vote. According to the Abilene city charter, proposed ordinances can be submitted to the voters by a petition signed by 10 percent of the voting population of the last regular municipal election. If the ordinance makes it on the ballot and passes, Abilene will become the 40th city in Texas to have banned abortion at the local level, joining a group of towns that call themselves “Sanctuary Cities for the Unborn.”

Almost all of the other towns in the initiative, which began in Waskom in 2019 but has since trickled into other states, passed their respective ordinances through regular city council action. However, opposition from leadership has prompted supporters in Plainview, San Angelo, Lindale, and Abilene to drop efforts at persuading councilors and pursue citywide votes instead.

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Despite the initiative’s modest but so far unbroken record of success in court, city attorneys in Abilene and elsewhere tend to discourage passage of the ordinance, constituting a silent but powerful force in a debate that has exposed divisions not only between pro-life and pro-choice Abilenites but also within pro-life circles from the church community to the city government itself.

At the center of the debate is a curious but reluctant Mayor Anthony Williams.

“He’s very pro-life.”

The “Sanctuary Cities for the Unborn” initiative began with activist Mark Lee Dickson, a White Oak native who has worn the same black jacket and placid smile to every town that has considered the ordinance since he helped persuade the Waskom City Council in 2019.

In the three years since, Dickson has spent most of his time driving across Texas — and, more recently, flying back and forth from other states — to personally introduce each new version of the ordinance to local leaders. He helped shape the Texas Heartbeat Act and then was named in a challenge to the law that went to the U.S. Supreme Court. Some of the same abortion providers and funds that are plaintiffs in that federal case have sued Dickson in state court for defamation. Lubbock, so far the sole “sanctuary” in Texas with a working Planned Parenthood in city limits, was facing its own federal lawsuit at the time for passing the ban.

But on January 15, Dickson’s journey dropped him in a meeting room at the MCM Elegante Hotel in Abilene, where he interrupted a call he was fielding on one of his four phones to address a server wheeling in water and iced tea.

“I don’t suppose you have any vodka?”

Dickson’s wry monotone makes his humor indistinguishable from earnestness, a speech trait that similarly renders his account of the many lawsuits against him in a tone of voice better suited to reading a grocery list. Undergirding Dickson’s calmness is an instinctive optimism that he will win.

Dickson had rented out the room in the hopes of bringing several mayors, including Williams, into contact with local community members leading the petition effort. Williams did not reject Dickson’s invitation but ultimately did not attend.

One of his personal friends, local pastor Scott Beard, said Williams opposes abortion but has remained ambivalent about the proposed ordinance.

“I’ll go on record with no problem saying he’s a great friend, he’s a fellow believer, he loves the Lord,” Beard said.

He called Williams’ public silence on the issue “puzzling” but said the mayor has expressed wariness about possible litigation against the city, taking caution from the advice of Abilene city attorney Stanley Smith.

“He’s very pro-life. The majority of our city council are very pro-life. These are friends. I know them, they’re all believers,” Beard said.

“The challenge is, ‘Well, if you don’t get behind this ordinance, then that just tells me you’re not pro-life.’ Well, that’s not true. There are reasons why the city attorneys in these larger cities are saying, ‘Look, there could be ramifications, there could be legal issues.’”

Williams did not respond to a request for comment.

Smith, who also did not respond for comment, isn’t the only city attorney to recommend against passing the ordinance. Public lawyers across Texas, including smaller towns, have advised mayors and city councils to avoid the initiative.

City Attorneys and the Initiative

Almost two years to the day before Dickson’s Abilene meeting, Big Spring became the largest “sanctuary” to date when it passed its own local ban. Big Spring Mayor Shannon Thomason has since traveled to other towns to encourage passage of the ordinance, occasionally noting that he was born and put up for adoption less than a decade before the U.S. Supreme Court decided Roe v. Wade.

Thomason said Williams reached out to him after Big Spring joined the initiative, curious about the ordinance.

Additionally, Thomason said it “wouldn’t surprise [him]” to learn that the Abilene city attorney has discouraged putting the ordinance on the city council agenda.

“Typically, the city attorneys look at the ordinance with kind of a dim view,” Thomason said. “The city attorneys in a lot of cities have been the force pushing against the ordinance.”

Dickson agreed and said he encounters opposition from city attorneys around the state, often from the same handful of attorneys that each work for several cities.

After a Levelland City Council meeting where no public commenters spoke against the proposal, the council passed the ordinance over the objections of city attorney Matt Wade, who also holds the office of city attorney for Abernathy, Whiteface, and Plainview. He has likewise advised city leadership in the latter towns to avoid the ordinance. In part because Wade is Plainview’s city attorney, Plainview is the first town where Dickson and local supporters opted for a citywide vote without first pursuing council passage.

Wade did not respond for comment.

In addition, Wade formerly worked for Olson and Olson, the Houston law firm that advised the City of Lubbock that the ordinance would violate state law.

Centerville city attorney Charles Olson, whose wife Kris Kaiser Olson formerly chaired Planned Parenthood of Greater Texas, discouraged city leadership from passing the ordinance there as well.

San Angelo pastor Ryan Buck, who is leading the petition process to get the ordinance on the city ballot there, said a majority of the city council supported the ordinance until San Angelo city attorney Theresa James convinced them in executive session just before the vote to replace the proposed ordinance with a proclamation in support of the Texas Heartbeat Act on the agenda. Two of the four council members that had supported the ordinance voted instead to consider the proclamation, a decision Buck claims was hastily made.

“And then they had a vote on the proclamation and, you know, a couple of the council members just had this deer-in-the-headlights look. They didn’t realize how quick it was happening. And there were two of the council members that voted against the resolution and that was the only two council members that stayed with us. Two of the others basically turned coat,” Buck said.

According to Buck, Councilmen Lane Carter, Larry Miller, Harry Thomas, and Tom Thompson initially supported the ordinance. Meeting minutes show that Thomas and Thompson voted for the resolution instead of the ordinance at the October 5 meeting, a last-minute choice that Buck credits to James in light of Thomas and Thompson’s continued support for the ordinance in the petition process.

“I want to be fair to these guys, because I warned them in public comment to have courage and to not be swayed by, you know, legal concerns or legalese presented by the city attorney. And I know that’s what happened. She just got them very confused and worried and concerned,” Buck claimed. “They just got shied away at the last minute by the city attorney.”

Buck claimed that James called the ordinance “chauvinistic” when he met with her after the meeting since it forbids any penalty against the mother herself for procuring an abortion. James did not respond for comment.

For his part, Dickson thinks the city attorneys’ opposition to the initiative is only ideological, driven by personal belief instead of legal consideration.

“So we don’t know what these city attorneys say all the time in these executive sessions. I mean, obviously it’s an hour and a half long, this one in San Angelo was. Sometimes it’s been two hours. Sometimes it’s been an hour. We don’t know what all is being discussed in there, but they’re discouraging the ordinance from being passed,” Dickson said.

“A lawyer’s liberal leanings do affect the policies that come before him. And so when people ask a liberal attorney for an opinion, they’re going to often get a liberal legal opinion.”

But though Smith, Wade, James, and other city attorneys have mostly kept silent about why they doubt the constitutionality of these ordinances, some of the councilors that take their advice have given concrete reasons to reject them.

Lubbock city leaders first rejected the ordinance after receiving Olson and Olson’s opinion that ordinances outlawing abortion violate state law, which requires local ordinances to harmonize with the state constitution and statutes.

“The Proposed Ordinance conflicts with State law because the State regulates abortions, including who may perform them, where they may be performed, and when they may be performed, and the Proposed Ordinance imposes additional regulations inconsistent with those State regulations,” the city stated after consulting with the firm.

When the Lubbock City Council later rejected the ordinance again in an official meeting, Councilwoman Latrelle Joy brought up legal precedent, referring to a then-recent Fifth Circuit ruling against the state’s ban on dismemberment abortion.

“Guess what? The state got sued. The lower court said that, since the Supreme Court’s landmark decision nearly 50 years ago, it has been clear that the 14th Amendment guarantees a woman’s right to choose to undergo a pre-viability abortion,” Joy said.

However, the Texas Heartbeat Act, passed in 2021 as Senate Bill (SB) 8, explicitly authorizes local governments to restrict abortion more tightly than the state. This provision partly informed the judge’s order that later dismissed Planned Parenthood’s lawsuit against Lubbock.

Furthermore, the state’s ban on abortions by dismemberment was later upheld in an en banc ruling, reversing the decision that Joy referenced.

Speculation whirls that the nation’s highest court may change course on longstanding abortion jurisprudence, but the ordinances are designed to work even under the strictures of Roe v. Wade and Planned Parenthood v. Casey.

The Enforcement Mechanism

Well before SB 8 passed the legislature, former state solicitor general Jonathan Mitchell worked with Dickson to craft a local abortion ban that would realize a theory he explored in a 2018 law article on the “writ-of-erasure” fallacy, the erroneous belief that court rulings can strike or erase laws from the books. Since Article 3 of the U.S. Constitution directs courts to resolve real controversies, courts can only block parties in a lawsuit from performing real, specific actions. Even if a court enjoins a government from enforcing a law, the law itself still remains.

“It is practically impossible to bring a pre-enforcement challenge to statutes that establish private rights of action, because the litigants who will enforce the statute are hard to identify until they actually bring suit,” Mitchell wrote.

Civil lawsuits are the ordinances’ most immediate mode of enforcement. Citizens may sue anybody besides the mother herself that performs or aids an abortion in city limits. Government officials cannot sue.

Courts can, and commonly do, enjoin direct government restriction on abortion. Texas constitutional law professor Josh Blackman explained that those same injunctions cannot properly address a law that uses lawsuits for enforcement.

“The U.S. Supreme Court has held that you can’t just sue the government because they enact some law you don’t like. You have to actually sue the parties that enforce it… It doesn’t seem like the City of Abilene actually enforces this,” Blackman said.

“There’s no one to sue.”

Cities may also punish violators directly if certain narrow legal standards are met. Under Abilene’s proposed ordinance, the city cannot penalize violators “unless and until” the U.S. Supreme Court reverses Roe v. Wade, a court declares that the city’s penalty will not impose an undue burden on women seeking abortions, or a court rules that the violator lacks the third-party standing to assert the rights of women seeking abortions.

The ordinances have evolved to become more comprehensive as the initiative has grown —  explicitly outlawing abortifacient drugs, banning transport to abortion clinics outside “sanctuary” city limits, and adding the provision that fathers cannot sue if they conceived the aborted child out of rape or incest — but the civil enforcement mechanism has remained the same.

As time has passed, the ordinance has proven resilient. The first legal challenge the initiative faced was a lawsuit by the American Civil Liberties Union (ACLU) against seven of the cities. Although the ACLU publicly framed the case as a constitutional challenge, the actual conflict was over the language of the ordinances, which referred to some pro-choice groups as “criminal organizations.” After the cities made some tweaks to the wording, the lawsuit was dropped, and their ordinances remain effective.

In addition, the lawsuit only targeted certain cities in the initiative. Other cities, including Big Spring, were not named in the suit. Thomason said Big Spring amended their ordinance during deliberation to remove references to “criminal organizations,” but also theorized that the ACLU purposefully limited their case to a particular wing of the state.

“They court-shopped,” Thomason argued. “Nobody west of I-35 got sued.”

Planned Parenthood sued the City of Lubbock in a more direct challenge to the ban shortly after the citizens passed it, but a judge dismissed the case for lack of standing. Just this month, not long after Dickson’s meeting in Abilene, Planned Parenthood voluntarily dropped its appeal of the judge’s decision, leaving Lubbock’s ordinance in place.

The cost of litigation alone has been enough to deter some city leaders from voting for the ordinance, but Mitchell has promised to defend the “sanctuaries” in court at no cost to the taxpayer.

Beard said he has brought this up to Williams before, but Williams remains cautious.

After meeting with Williams to discuss the petition process, Beard said it still remains undecided whether the vote would take place in May or November. For the moment, volunteers like Fogel will remain stationed at churches, Dollar Trees, and Walmarts under the hard, flat Abilene sky, engaged in the mundane task of reversing 50 years of law in one more Texas town.

Update: This article has been updated to include direct quotes from Dickson.


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Isaiah Mitchell

Isaiah Mitchell is a reporter for The Texan, a Texas native, and a huge Allman Brothers fan. He graduated cum laude from Trinity University in 2020 with a degree in English. Isaiah loves playing music and football with his family.