“The Constitution of the United States guarantees the right to have an abortion. But as of June 1, 2021, the City of Lubbock will prohibit and prevent the exercise of that right through the passage of its Ordinance Outlawing Abortion Within the City of Lubbock,” the lawsuit reads.
The lawsuit also argues that the ordinance violates Texas law by creating civil liability between private parties — a power that the Texas Penal Code places in the hands of the state — and by penalizing conduct already regulated by state law.
Texas law counts unborn demise as death but does not punish it as a wrongful homicide if performed as a legal abortion.
The ordinance holds those that perform or aid abortions liable to the family of the aborted children. It also allows any citizen of Texas other than government employees to sue violators. Abortions meant to save the mother’s life are the exception, and the mother herself cannot be sued.
According to Planned Parenthood’s complaint, passage of the ordinance has already chilled abortion access in Lubbock, marking a historic first step for the previously untested ordinance.
“Because the Ordinance declares procuring, performing, aiding, or abetting abortion “unlawful” and “murder,” imposes substantial liability on anyone who procures, performs, aids, or abets an abortion in Lubbock, and allows injunctions against anyone planning to so act, no doctor, nurse, or other staff at the Lubbock center will participate in the center’s abortion services,” the lawsuit reads.
“The legal and financial risk to the health center and to its personnel personally is too great. Even if they were to successfully defend against a civil suit, the litigation costs from the barrage of civil lawsuits encouraged by the Ordinance would be crushing. Indeed, the Ordinance has already forced Plaintiffs to cancel abortion-related appointments to avoid potential liability.”
Planned Parenthood seeks an injunction against enforcement of the ordinance and a declaration that it violates the Constitution, namely the “undue burden” standard set in place by cases like Planned Parenthood v. Casey and Whole Woman’s Health v. Hellerstedt. Under this jurisprudence, placing obstacles in the path to abortion can be found unconstitutional.
The ordinance was crafted specifically to circumvent the undue burden standard. It says the City of Lubbock cannot punish violators unless they lack standing to assert the third-party rights of women seeking abortions or unless Roe v. Wade and other jurisprudence are overturned. Arguably, since it uses private lawsuits instead of government action, the City of Lubbock is itself not hampering abortion access.
The Texas Heartbeat Act, expected to be signed into law tomorrow, also uses private lawsuits instead of government action for enforcement.
Mark Lee Dickson, Right to Life of East Texas Director and founder of the “Sanctuary Cities for the Unborn” initiative, said that other court cases strengthen Lubbock’s position.
“This lawsuit is frivolous and directly foreclosed by the Fifth Circuit’s ruling in Okpalobi v. Foster. The federal courts have no ability to prevent private litigants from suing abortion providers under a duly enacted law, and there is nothing a federal court can do to stop private citizens from suing to enforce this ordinance,” Dickson wrote.
“The city-wide abortion ban will take effect on June 1st, regardless of what happens in this lawsuit, and any person who aids or abets an abortion in Lubbock will be facing immediate lawsuits. Planned Parenthood should conduct itself accordingly.”
In 2001, the U.S. Fifth Circuit Court of Appeals upheld a Louisiana law in Okpalobi v. Foster that held abortion providers liable in tort to women claiming damages caused by abortions.
This is not the first legal challenge the “Sanctuary Cities for the Unborn” have faced. The American Civil Liberties Union sued them for wording in the ordinance last year. The lawsuit was eventually dropped.
Fear of a lawsuit motivated Lubbock city leaders to vote unanimously against the ordinance, thus sending it to a general election where the citizens overwhelmingly approved it. One of the attorneys that the city hired to defend the ordinance in this lawsuit, Fernando Bustos, foretold a grim legal future for it before the election.
The case will go before Judge James Wesley Hendrix, a Trump appointee.
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