An East Texas pro-life activist named Mark Lee Dickson founded the “Sanctuary Cities for the Unborn” initiative in 2019, convincing the city council of Waskom to adopt an enforceable abortion ban after the passage of a heartbeat law in nearby Louisiana stoked local fears of abortion facilities setting up shop just across the border in Texas.
Over two years, 350 miles, and 40 towns later, the initiative has evolved to present Abilene with one of the most comprehensive ordinances yet. If passed, Abilene’s ordinance would not just ban abortion in city limits. It would also ban the possession of abortifacient drugs, any insurance coverage for abortions, and the abortion of unborn residents of Abilene regardless of where those abortions might take place.
Though these refinements show a substantial departure from the ordinance passed in Waskom, the idea’s journey to Abilene began earlier that year — arguably by accident — in Austin.
‘We really snuck it past all of them’
Texas conservatives in the state legislature have long fought to trim the power of local government, which often acts as an obstacle to their policy goals. 2019 was no exception to this pattern. “Sanctuary cities” for illegal immigrants, local “Green New Deals,” and municipal employment regulations like mandatory paid leave all took center stage in political debates at the Texas Capitol during the 86th legislative session.
Partly propelled by Planned Parenthood’s sweetheart $1 per year rent deal with the City of Austin, the legislature passed a bill to block local tax dollars from going to abortion providers and their affiliates.
Facing Democratic opposition to this bill in the name of local control, staffers for then-state Rep. Jonathan Stickland (R-Bedford) hatched an idea.
During discussion of the bill on the Texas House floor, Stickland offered an amendment to specify that the bill would not stop cities or counties from prohibiting abortion.
“At that time, the Democrats were trying to push that cities could be doing a bunch of liberal stuff,” Stickland said.
“And so, we were just sitting around, trying to come up with ideas that we could flip on them, and my staff suggested that, and we went with it. And I think it’s ended up being one of the biggest things we’ve done in the last ten years.”
Stickland says he had no specific outcome in mind for the idea, which baffled conservatives and liberals alike in the Texas “politisphere.” He adds that he was unsure whether Texas law authorized cities to restrict abortion in the first place. The amendment only clarified that the bill would not limit local authority over abortion — whatever that authority was.
“There was not a group that was pushing that. In fact, we went to Texas Right to Life and other folks that had traditionally worked on that issue, and they were like, ‘What do you want to do?’ They didn’t even know. We kind of started it from there. And then, I think a couple people took it and ran with it and now it’s turned into quite a big thing. In fact, other states are now working on it. But there was no model legislation or anyone lobbying for it,” Stickland says.
“We didn’t want to turn it into a huge abortion thing on the floor, so we really snuck it past all of them. It was a lot of fun.”
That same year, the Texas House deftly avoided discussion of another “huge abortion thing” when a heartbeat bill that had gathered the support of 60 members died in the House Public Health Committee without a hearing. Heartbeat legislation was in vogue that year: similar bills had been introduced in 15 other states and were passed in five, including Louisiana.
Since Waskom is a twenty-minute drive from Shreveport’s Hope Medical Group for Women, Dickson says the Louisiana law inspired him to approach the mayor with concerns about the facility expanding operations to Texas.
However, the Louisiana heartbeat law was never enforced. The law includes a condition: it would only have taken effect if the Fifth Circuit Court of Appeals had upheld Mississippi’s own heartbeat law. The court blocked that law shortly after blocking the fifteen-week abortion ban Mississippi had passed the year before, the same law that the U.S. Supreme Court is currently considering in Dobbs v. Jackson.
By the time the Fifth Circuit blocked Mississippi’s heartbeat law with a decision in February 2020, concurrently neutering Louisiana’s law, Dickson had notched 11 new cities after Waskom — and the idea of a local abortion ban had already begun to evolve.
Expanding the Ban
The first few towns to join the initiative toyed with exceptions for unborn children conceived out of rape and outright bans on emergency contraceptives like Plan B. The ordinance that Wells adopted includes the emergency contraception ban but not the rape exception, distinguishing it from the original Waskom ordinance.
Both ordinances have since been amended to resolve litigation with abortion funds who claimed the early ordinances violated the First Amendment by declaring abortion assistance to be ‘criminal.’ During the amendment process, both cities removed their bans on the sale of emergency contraceptives.
Not every city after Wells continued to outlaw this conduct.
The initiative has undergone more lasting legal changes that established new patterns for most of the towns that followed. These changes have occasionally coincided with major milestones for the Texas Heartbeat Act, a state law passed last year that works similarly to the “sanctuary” ordinances.
Former Texas solicitor general Jonathan Mitchell partners with Dickson in drafting the ordinances and has sworn to defend the “sanctuaries” in court should they encounter legal trouble. In a 2018 scholarly article, Mitchell noted that laws enforced by lawsuits are difficult to block beforehand because courts can only enjoin real, discrete parties in a lawsuit from taking concrete action.
“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.
Mitchell and Dickson applied this principle to the “sanctuary” ordinances. Anybody besides the mother herself that performs or aids an abortion in a “sanctuary” faces the threat of lawsuits. Government officials cannot sue.
The same principle has proven successful for the Heartbeat Act, even though it only applies from the point of fetal cardiac activity and not the point of conception.
Although Dickson’s initiative precedes the Heartbeat Act, both seem to have developed side by side in some respects.
First, the law, filed as Senate Bill (SB) 8, explicitly authorizes cities to restrict abortion more stringently than the state. This provision aided the City of Lubbock after Planned Parenthood sued the city over passing its own ban.
Secondly, the ordinances that passed after Governor Greg Abbott signed SB 8 look notably different than their predecessors, starting with acknowledgements at the top of their texts that state law allows cities to ban abortion.
Sterling City — the first “sanctuary” to include this acknowledgement in its ordinance, suggesting that it was likely the first ordinance drafted after Abbott signed the bill — was a major turning point for the initiative. It was the first city to make abortifacient drugs contraband, outlaw insurance coverage for abortions, and forbid enforcement lawsuits by fathers that had sired the aborted child by rape or incest. The latter provision was previously added to the Heartbeat Act in an amendment on the Texas House floor.
It was also the first city to urge the district attorney of its county to prosecute anybody that “furnishes the means for procuring” an elective abortion. Elective abortions and “furnishing the means” for them are both still technically illegal under the same chapter of the Texas Penal Code that the Supreme Court judged in Roe v. Wade. However, while the decision recognized a right to abortion, it did not recognize a right to furnish an abortion, leading some conservative lawmakers to encourage prosecution under this unrepealed statute.
Cisco, which passed its ordinance on October 12, was the first city to ban the abortion of any city resident, “regardless of where the abortion is or will be performed.” Slaton passed an ordinance with the same provision.
Additionally, while still relying on civil enforcement, the later ordinances have specified that local officials can directly punish violators if certain legal thresholds are met. One of these criteria is the reversal of Roe, but the later ordinances also authorize direct penalties if a state or federal court rules that they would not burden women’s abortion access.
Now, bolstered by new state law and a record of legal success against the American Civil Liberties Union, several abortion funds, and Planned Parenthood, the language of the ordinances itself exudes a more businesslike confidence than Dickson’s early efforts.
Although the initiative has always aimed at achieving an enforceable ban under the strictures of Roe, the language has gradually shifted from an outright refutation of the Supreme Court to a sly maneuver past it. Where the Waskom ordinance jabs, calling Roe an “illegitimate act of judicial usurpation,” the Lindale ordinance slips.
“The Supreme Court’s judgment in Roe v. Wade did not cancel or formally revoke the Texas statutes that outlaw and criminalize abortion,” it coolly observes.
Proponents argue the initiative saves lives while abiding by the law. Opponents call it an end run around American jurisprudence that brings needless national controversy to local government. While friends of Abilene Mayor Anthony Williams say he is pro-life, councilors in bigger cities tend to fall in the latter category. Combined with the general reluctance of Abilene leadership to broach the topic, all signs suggest the ordinance will likely fail on the council table tomorrow.
If it does, the choice will go to the voters, and the idea will continue its journey to other cities. Dickson pitched the city councils of Athens and Chandler recently. In any event, the steady growth of the initiative under the radar of national courts has shown, at the very least, that it is not a force to be ignored.
Correction: Due to outdated information from the Wells city website, a previous version of this article incorrectly stated that Wells currently outlaws the sale of emergency contraception. We regret the error.
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