JudicialLubbock Rejects Ordinance to Outlaw Abortion

Most council members said they clung to pro-life beliefs themselves but felt the ordinance would violate the law and open the door to lawsuits.
November 18, 2020
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For the time being, Lubbock will not become a “Sanctuary City for the Unborn.”

The motion to outlaw abortion within Lubbock city limits failed last night after hours of impassioned public testimony.

The council voted unanimously to reject the ordinance after members, one by one, said they would like to see Roe v. Wade overturned but thought the ordinance would invite legal trouble.

The ordinance would have allowed the relatives of aborted children to sue performers of abortions. It also would impose penalties if Roe v. Wade were ever overturned.

Members of the council agreed in calling the ordinance unenforceable and unconstitutional, mostly in reference to Roe v. Wade but also to the Texas Constitution, with some members calling out state legislators who supported the ordinance’s forceful sprint onto the city agenda.

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Councilwoman Latrelle Joy pointed to a recent ruling against Texas’ dismemberment abortion ban as evidence that the “Sanctuary City for the Unborn” ordinance could very likely be overturned in court.

“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.

“The court of appeals reaffirmed Roe’s essential holding, and the Texas law constitutes an undue burden on a woman’s right to obtain a pre-viability abortion and violates the 14th amendment.”

Joy went on to call certain provisions of the ordinance “really scary if you thought them through,” especially the lack of a statute of limitations.

She concluded, “That means that case could be filed at any time. You could be 50 years old and file a lawsuit against some of those individuals. If that doesn’t scare you, then you better start getting down on your knees.”

“I’m not so sure that there wasn’t some political stunting involved in this. … I think it’s disingenuous of our state lawmakers to get involved in this in the way they got involved. There could have easily been a bill presented at the state legislature that communities could have gotten behind, but that didn’t happen,” Councilman Steve Massengale said.

“I’ve tried to explain this to a lot of people. … Let’s say that I wanted to make Lubbock a haven for federal income tax. And let’s say I proposed an ordinance. We could be like the Cayman Islands. … Would anybody in here believe that they weren’t responsible for their federal income taxes? No. The ordinance is far from perfect.”

Massengale’s words point to State Senator Charles Perry (R-Lubbock) and State Reps. Dustin Burrows and John Frullo (R-Lubbock), who publicly threw their support behind the ordinance and cosigned a letter urging the city to adopt it.

State Senators Donna Campbell (R-New Braunfels) and Dawn Buckingham (R-Lakeway) would later join State Reps. Tony Tinderholt (R-Arlington), Kyle Biedermann (R-Fredericksburg), Briscoe Cain (R-Houston), Steve Toth (R-The Woodlands), Jonathan Stickland (R-Bedford), Mike Lang (R-Granbury), Cole Hefner (R-Mount Pleasant), and Matt Schaefer (R-Tyler) in another letter urging local governments to adopt similar ordinances.

Many of the council members — including Mayor Dan Pope — prefaced their votes with paeans to the life of the unborn.

“I’m thankful for a Lubbock that values all lives, both born and unborn. … I don’t believe that the regulation of abortion is a municipal issue. If Roe v. Wade were to be overturned, and hopefully will be overturned, the 10th amendment as was pointed out earlier this evening would then dictate that abortion would be regulated at the state level as it was prior to 1973,” Pope said.

He concluded, “The Texas Constitution prohibits a city from passing an ordinance that is inconsistent with the laws of the state. It goes on to dictate that this ordinance conflicts with state law because it creates offenses that are the same as existing state law but with different penalties. This is prohibited by both the Texas Penal Code and the Texas Constitution.”

After Planned Parenthood set its sights on Lubbock for a new location, since constructed, activists and lawmakers urged the mum city council to vote on and pass the ordinance. The city then conferred with law firm Olson & Olson and refused to hear the ordinance, calling it unconstitutional. A petition finally forced it onto the council’s agenda last month, per the city charter.

Olson & Olson argued that article XI, § 5 of the Texas Constitution, which deals with local adoptions of charters and taxes, prohibits the ordinance.

“The adoption or amendment of charters is subject to such limitations as may be prescribed by the Legislature, and no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State,” the constitution reads.

Council members at the meeting also strongly argued that the Roe ruling clearly prohibits the ordinance as well.

The man behind the ordinance, Right to Life East Texas Director Mark Lee Dickson, gathered other attorneys to pen an opposing response arguing for the constitutionality of the proposed law.

“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.

“There is nothing in the state constitution that prevents a municipality from outlawing or regulating an activity that is subject to state licensing.”

The letter, sent to the city council, also argued that the U.S. Constitution makes no prohibitions against a law holding abortion providers liable to the families of aborted children.

“Abortion is not a constitutional right, and there is no language anywhere in the Constitution that even remotely suggests that anti-abortion laws are unconstitutional. Although the Supreme Court invented a right to abortion in Roe v. Wade, 410 U.S. 113 (1973), the Court’s holding merely prevents states or localities from enforcing abortion bans until Roe is overruled. It does not prevent states or localities from enacting abortion bans, so long as the city’s enforcement of its ban is delayed until the Supreme Court overrules Roe,” the letter further specifies.

“The proposed ordinance is consistent with Roe because it specifically prohibits the city or its officials from enforcing the ordinance until they obtain a declaratory judgment from a court that the enforcement of the ordinance will comport with Supreme Court precedent. Instead, the ordinance allows the abortion ban to be enforced only through private citizen suits, and enforcement mechanisms of that sort will not expose the city to any liability.”

Attorneys Jerri Ward, Cole Shooter, Kellye SoRelle, Frank Dobrovolny, Olivia Ponce, Elisha Hollis, Chris Carnohan, Burrows, and Katie Nielsen cosigned the letter.

The issue is not over, however, as it will appear on Lubbock voters’ ballots during the May election.

Morton became the 16th and most recent “Sanctuary City for the Unborn” when it passed a similar ordinance last month.

Below is a map of the various Texas cities that have passed “Sanctuary Cities for the Unborn” ordinances.

Editor’s Note: This article has been updated from its original version to include context of the May referendum election that was omitted.

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Isaiah Mitchell

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.