Local NewsLubbock Stakeholders, Lawyers Weigh in on Vague Future of Abortion Ban

Attorneys, local politicians, Planned Parenthood, and ordinance herald Mark Lee Dickson chime in on the landmark vote.
May 5, 2021
While the women that staff the grandmother-founded pro-life group Project Destiny and Trinity Church’s Heartline pregnancy resource center were celebrating Lubbock’s abortion ban on the church’s auditorium stage, Right to Life East Texas Director Mark Lee Dickson stood to the side, hands folded, wearing his characteristic backward hat and weary smile.

“[I feel] the same way I feel when any city outlaws abortion,” Dickson said.

“I’m proud for that city. In this specific circumstance, I’m proud that the citizens of Lubbock rose up, that they voted for what they believed, and I think this should send a message across America that the days of trusting our state capitol, our nation’s capital to be the be-all-end-all are over. That it’s time that we take back our cities.”

The “Sanctuary City for the Unborn” ordinance is Dickson’s brainchild, a stroke of legal jiu jitsu meant to slip past seminal court rulings like Roe v. Wade and Whole Woman’s Health v. Hellerstedt — both born in Texas — which prevent governments from blocking abortion access. Instead of banning abortion outright by threat of city action, the ordinance empowers the living kin of aborted children to sue those who bought, aided, or carried out the procedure. Mothers are the exception: those who get abortions may sue, but they cannot be sued.

Upon invitation, Dickson travels from town to town, introducing the ordinance personally. Lubbock became the 24th city in Texas to adopt it.

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The 23rd was Latexo, a small pine-nestled town in East Texas that lies some 400 miles away from the pumpjacks grazing on the red plains around Lubbock. Dickson has spent countless hours watching Interstate 20 unspool beneath his Ford during his zigzag drives between the state’s rural poles. Grapeland, a town at the skirts of the Davy Crockett National Forest between Tyler and Houston, was the 18th “sanctuary.” The town of Goldsmith, just west of Odessa, was the 19th.

Dickson, who travels with one hat, one jacket, and four phones that he keeps beside him in a stack, said Saturday night that he hadn’t seen his own home in months.

While certain aspects of the ordinance have evolved somewhat over the course of its path to Lubbock — centrally, the city’s power to penalize abortionists would be unleashed upon the overturning of Roe v. Wade and other rulings — its basic legal bones have remained unaltered.

“Every city is different,” Dickson said of the ordinance’s evolution, “and so obviously Lubbock is different than Waskom, and different than Hayes Center, Nebraska. And so the ordinance was specifically tailored to the City of Lubbock… So, the ordinances now, we have a findings section. We didn’t have that originally. But overall, I mean, it’s the same thing that Waskom passed.”

Waskom was the first “sanctuary,” adopting the maiden ordinance in 2019. Hayes Center is one of the two “sanctuaries” outside of Texas.

The American Civil Liberties Union (ACLU) released a statement suggesting that the ordinance may violate the Constitution.

“Abortion is not just essential health care, but also a fundamental right protected by the United States Constitution,” said Drucilla Tigner, Policy and Advocacy Strategist at the ACLU of Texas.

“The ACLU has a long history of challenging unconstitutional abortion bans and will continue to fight to protect the fundamental rights of the people of Lubbock.”

Josh Blackman, a Houston law professor with a favorable opinion of the ordinance, said the crafting of its text has complicated pro-choice retaliation that would otherwise be cut-and-dry.

“It’s actually a very clever ordinance, the way they’ve devised it. Usually, the way laws work is the government enforces it. So let’s say the city or county puts a restriction on abortion…. With the usual law, when the government enforces it, Planned Parenthood can bring what’s called a pre-enforcement challenge. It says, ‘Well, this law hasn’t been enforced yet, but they will enforce it, and when they do enforce it, we’ll have our rights violated. So we can sue now,’” Blackman said.

“This ordinance is different. It specifically says government, the Lubbock government, cannot enforce this law. Cannot. The only people who can enforce this law are private citizens… Why is this fact important? It’s almost impossible to do a pre-enforcement challenge when the government’s not enforcing it. In other words, they can sue the government — which they probably will try to — and the court will say, ‘Well, that’s nice, but the government can’t enforce this law, so what are you suing them for?’ There’s no way for a court to hear the validity of this law until someone actually brings a civil lawsuit.”

Jonathan Mitchell, the former state solicitor general, has sworn to defend the “sanctuaries” from any litigation that might arise.

In their own statement, Planned Parenthood of Greater Texas criticized the ban as burdensome.

“The Lubbock ordinance approved on May 1, 2021 establishes an abortion ban for Lubbock residents, creating significant barriers and the need to travel a minimum 600 mile round trip or out of state to obtain an abortion,” the statement reads.

“Planned Parenthood of Greater Texas is carefully reviewing the impact of the ordinance, and will make decisions soon regarding the availability of abortion services in Lubbock.”

Planned Parenthood’s publicized return to Lubbock may have inadvertently added momentum to the “sanctuary” movement by presenting an opportunity for Lubbock-area lawmakers to urge the adoption of the ordinance. State Sen. Charles Perry (R-Lubbock) and a number of state representatives sent a letter of support for the proposal to Mayor Dan Pope.

City leaders, Pope included, balked.

Saturday’s results showed a yawning divide between Lubbock voters and their city council, which first avoided and then rejected the ordinance.

In November, a visibly abrasive city council meeting closed with a unanimous vote against the proposal — after most of the members expressed personal pro-life beliefs — ending the ordinance’s fraught journey through the city government gauntlet and turning it over to a general election. Previously, the mayor and council had shrunk from touching the ordinance, calling it unconstitutional after a consultation with a Houston law firm.

While other council members simply fell back on Roe v. Wade as the “law of the land,” Councilwoman Latrelle Joy pointed to more recent and concrete legal evidence that the ordinance would wilt under legal scrutiny. Joy, an attorney, noted a then-recent court ruling that struck down a restriction on dismemberment abortions and predicted a similar fate for the abortion ban.

The U.S. Fifth Circuit Court of Appeals has since heard oral arguments for the same case en banc but has not issued a ruling yet.

After the election, Pope cheered at the heightened public participation but hesitated to praise the results.

“I am encouraged by the significant voter turnout,” he stated.

“On behalf of the City Council, our duty as elected officials is to begin the process in adding the approved ordinance to the City of Lubbock Code of Ordinances, as directed by the Lubbock City Charter. The Lubbock City Council, per state law, will canvass the votes from this election on Tuesday, May 11, with a likely ordinance effective date as early as June 1.”

Dickson, meanwhile, said some El Pasoans have been floating invitations his way.

“I want to say we’ll never get El Paso,” he laughed. “But then I remember that’s what we said about Lubbock.”


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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.

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