Yesterday, the lawsuit was dismissed.
According to Judge James Hendrix of the U.S. District Court for the Western District of Texas, the case is not justiciable since Planned Parenthood lacks standing to sue the city. Furthermore, court precedent and state law both appear to allow the ban. However, Hendrix wrote that certain elements of the case may still be resolved in another court.
Because of the way it was crafted, the ban bucks the typical process of lawsuits between abortion providers and governments that has dominated American abortion jurisprudence in cases like Planned Parenthood v. Casey and the seminal Texas case Whole Woman’s Health v. Hellerstedt.
The “sanctuary” ordinance that Lubbock adopted uses private lawsuits for enforcement. An aborted child’s living kin can sue anybody that performed or aided the child’s abortion, other than the mother, for compensatory or punitive damages. In addition, any private citizen can bring an action for injunctive relief or statutory damages against violators. No government employee can sue, and the city cannot punish violators before meeting certain legal thresholds — for example, if the U.S. Supreme Court overturns Roe v. Wade and other binding jurisprudence — thus undercutting Planned Parenthood’s standing to sue.
In other words, Planned Parenthood lacks standing since the court cannot remedy the injury that the organization claims it has suffered. A ruling against the city would not stop citizens from suing. Therefore, Hendrix wrote in his order, the court cannot take up the case.
“Although the Court assumes that plaintiffs can show injury that stems from the city’s passage of the ordinance’s private-enforcement provision, they fail to show that an order from the Court would redress the injury,” Hendrix wrote.
“Plaintiffs admit that this Court cannot force the city to revoke or amend its ordinance.”
Furthermore, Hendrix said that state law may allow the ordinance.
Planned Parenthood claimed in its original complaint that cities do not have the power to create liability between parties. In response, Hendrix noted that state law remains silent on this issue.
“Neither party has identified state law clearly limiting or prohibiting home-rule cities from creating private rights of action, nor have they presented Texas case law resolving this issue,” the order reads.
“The complete lack of authority from the state provides strong evidence that this issue remains unclear and unsettled.”
Planned Parenthood also argued that state law, which counts abortion as homicide but not a wrongful death when performed legally, preempted the ordinance. However, recent activity at the legislature — mainly, the passage of the Texas Heartbeat Act — may validate Lubbock’s abortion ban.
The legislature clarified in 2019 that it has not forbidden local governments from prohibiting abortion. Additionally, as Hendrix notes, the fledgling Heartbeat Act is very similar to the “Sanctuary Cities for the Unborn” ordinance that Lubbock adopted since both use lawsuits for enforcement.
“The state legislature’s recent passing of the Texas Heartbeat Act appears to clear up and potentially resolve the issue of whether state law preempts the ordinance,” Hendrix wrote.
“The Court recognizes that the Texas Heartbeat Act does not go into effect until September 1, 2021. However, there is no denying that the effectuation of this Act will weigh heavily against, if not moot, a claim that state law preempts the ordinance. And, in any event, the Act is relevant even before its effective date. Under Texas law, when a later-enacted statute clarifies the meaning of earlier statutes, it is ‘highly persuasive,’ even if it does not technically control.”
Texas is the first state to pass a heartbeat bill that uses private lawsuits rather than government penalties for enforcement, a method upheld in the dormant but influential Okpalobi v. Foster ruling at the Fifth Circuit Court of Appeals.
In Okpalobi, the Fifth Circuit ruled in favor of a Louisiana law that lets women sue their abortionists for damages. The narrow opinion left abortion questions largely untouched, instead noting that the abortion facilities that sued the state lacked standing since their injury came not from government punishment but from lawsuits.
“Enjoining the named defendants from enforcing the statute will not redress the claimed wrongs,” Judge Patrick Higginbotham wrote in the Okpalobi opinion.
“There is then no case or controversy under Article III of the Constitution.”
The rarely-invoked Louisiana law led to another lawsuit some years later, K.P. v. LeBlanc in 2013, where the court again mooted abortion providers’ claims.
“On at least two occasions, including speaking as an en banc court, the Fifth Circuit held that a plaintiff lacked standing to challenge a state law creating a private cause of action against an abortion provider,” Hendrix wrote, summarizing the cases.
Hendrix dismissed Planned Parenthood’s lawsuit without prejudice, noting at the end of the order that his abstention can let state courts potentially clear the murk around the power of cities to create civil liability.
The dismissal follows a letter that Texas Solicitor General Judd Stone sent Hendrix two days ago predicting a loss for Planned Parenthood. Stone also said the Heartbeat Act demonstrates harmony between Lubbock’s ordinance and state law.
The May 1 vote to ban abortion took place less than a month after Planned Parenthood had begun performing abortions at the Lubbock branch on April 15. According to Planned Parenthood’s original complaint, fear of lawsuits practically stopped abortions before the ordinance’s effective date.
While the vote to adopt the ordinance and become a “Sanctuary City for the Unborn” passed by a wide margin, the City of Lubbock was loath to touch the proposal. City leaders snubbed the ordinance until a petition forced it onto the city council’s agenda, where they unanimously voted against it. Ironically, attorney Fernando Bustos foretold a grim legal future for the ordinance before joining the city’s team to defend it in this lawsuit.
The “Sanctuary Cities for the Unborn” initiative began in the Texas town of Waskom in 2019. Lubbock was the 24th Texas town to join, making it not only the largest “sanctuary” but also the first to have a working abortion clinic in city limits.
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