In a statement released on the city website yesterday, the city council announced that they had sought advice from Houston law firm Olson & Olson and found that the “Sanctuary City for the Unborn” ordinance conflicted with the Texas Constitution.
“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,” one bullet point of the city’s statement reads.
The statement asserts that article XI, § 5 of the Texas Constitution, which deals with local adoptions of charters and taxes, would prohibit the ordinance. The text itself requires local laws to harmonize with the state constitution and laws passed by the legislature.
“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.
The ordinance, brainchild of Right to Life of East Texas Director Mark Lee Dickson, would hold abortion providers liable to the families of aborted children as one of a few enforcement mechanisms. So far, the ordinance has not made its way onto the city’s agenda.
The council received the petition asking for abortion to be outlawed on Tuesday. If the city verifies enough of the 5,695 submitted signatures to constitute 25 percent of the voting electorate, equivalent to a little over 3,000 voters, then the council must publicly address the ordinance.
Dickson told The Texan that Right to Life East Texas “had an army” of volunteers — all from pro-life groups, some from Texas Tech — to verify the voter data of over 5,000 of the signatures before they turned them in to the city to verify officially.
Two state lawmakers, both of whom previously co-signed a letter calling for Lubbock to adopt the ordinance, criticized the legal opinion in the city’s statement.
“It is clear that the council nor the attorney hired understand the ordinance as written. Specifically, the legislature gave municipalities the jurisdictional authority to act on these issues in the last session via Senate Bill 22. The ordinance is written within the Texas and federal statutes as related to this issue,” Texas Senator Charles Perry (R-Lubbock) said.
“16 cities have implemented the ordinance with 7 being successful in legal challenges. They are now ‘Sanctuary Cities for the Unborn.’ Clearly, [the] council has no appetite to further any initiative to protect the unborn when considering any legal challenge will be provided at no cost to the Lubbock taxpayer. The petition of 6,000 plus voters turned in on Tuesday will ensure the people will have their voices heard.”
State Representative Dustin Burrows (R-Lubbock) explained that SB 22, which deals primarily with tax-funded abortion providers, includes a space carved out for towns to pass laws like the proposed ordinance.
“SB 22 was the bill we passed last session that precluded municipalities from funneling money to Planned Parenthood, and in there was an amendment that was tacked on that basically made clear that nothing in that bill or that section of the code would preclude the city from having an ordinance or doing something like this,” Burrows said.
“I think this is kind of a toehold that says that we intended for cities to be able to do this all along.”
Morton, a small town west of Lubbock, became the latest of 16 Texas cities to adopt the ordinance earlier this week. So far, the only legal challenge these cities have faced came from an ACLU lawsuit on behalf of pro-choice groups claiming that the towns violated their First Amendment rights. When the ACLU dropped the suit, both parties walked away claiming victory.
Burrows expressed skepticism of Olson & Olson’s conclusions, questioning their experience on the Texas Constitution and their weight in the city’s decision to set aside the proposal. The firm employs a number of former city attorneys and specializes in local government law.
“[The city] had to go all the way down to Houston to find somebody who specializes, I think, in municipal law. Telling mayors what they want to hear is [how] I’d probably characterize it. Not really constitutional experts,” Burrows said.
“I think that the decision was written probably before the law firm was ever hired.”
If the city finds that the petition gathered enough verified voters to pass the threshold, Lubbock’s city charter says the ordinance should come up at the next regular meeting of the council on October 27.
“After receipt of such certificate and the certified copy of the proposed ordinance or resolution, the person exercising the duties of the City Secretary shall present such certificate and certified copy of the proposed ordinance or resolution to the Council at its next regular meeting,” the charter reads.
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