I’m told this ordinance is unconstitutional.
People are passionate about their positions. People are confident about their positions. But that does not always mean that they are right about their positions. While it is true that for years many have said that “abortion is a constitutional right” citizens throughout the United States have had a hard time finding the ‘right to abortion’ mentioned anywhere in the text of the United States Constitution. This is because nowhere in the Constitution does it come out and say, “abortion is a Constitutional right” or that “women have the right to an abortion.” It’s just not there. People act like abortion is a constitutional right because of the Supreme Court’s ruling in Roe v. Wade in 1973, but members of our current Supreme Court have questioned the validity of that ruling and other rulings which have followed that decision. Supreme Court Justice Clarence Thomas has even gone as far to call Roe v. Wade “farcical” and stated that the Supreme Court “can reconcile neither Roe nor its progeny with the text of our Constitution” and that, because of this, “those decisions should be overruled.”
In November of last year several attorneys throughout the State of Texas signed onto a letter responding to the objections of the Mayor, City Council, and Olson & Olson – which was the law firm with family ties to Planned Parenthood which was hired by the City of Lubbock to review the proposed Lubbock Ordinance Outlawing Abortion. That letter reads,
“Mayor Pope and several city council members have been asserting that the proposed ordinance violates the federal Constitution, but they are mistaken. 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 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. See Okpalobi v. Foster, 244 F.3d 405, 426–29 (5th Cir. 2001) (en banc).”
The Sanctuary Cities Ordinance which has been drafted specifically for Lubbock is not defying the Supreme Court’s decision in Roe v. Wade. Instead of defying Roe v. Wade we are working within the confines of Roe v. Wade. Nobody is saying that women cannot get an abortion. All we are saying is that abortion, which is the murder of an innocent child, is not allowed within the city limits of Lubbock, Texas. A letter signed by Senators and Representatives across Texas, encouraging municipalities across Texas to consider the ordinance, states this well when it said,
“The Sanctuary City for the Unborn ordinance outlaws abortion within city limits, declares abortion to be murder, and protects municipalities from abortion providers setting up shop within the city’s jurisdiction. The ordinance does not defy federal law, but enables cities to take bold action for Life while remaining within the existing legal framework of Roe v. Wade. The ordinance does not contradict the United States Constitution; rather, the language is intentionally and carefully drafted to protect both tiny Texans from abortion and cities from costly lawsuits. Since there is some immediate enforcement, through civil liability, the ordinance serves as an important deterrent to the abortion industry from moving into their jurisdiction. Importantly, the ordinance does not penalize women who seek or undergo abortions, but places the penalty on the party who most deserves it — the abortionist and the industry profiting from the unjust procedure.”
I’m told we will be sued and spend millions as a city defending this.
That statement is based on the assumption that this is either a losing battle or a battle which, if it can be won, is not worth the cost. Before we go any further I think it should be said anytime we stand against the abuse of innocent children, in the womb or out of the womb, it is a battle worth fighting. I do not believe Lubbock is a city where the majority of their residents are okay with children having their limbs ripped from their bodies and their skulls crushed. Which person, in their right mind, actually wants children to have their arms and legs ripped from their bodies and skulls crushed in Lubbock, Texas? No matter what the cost, defending innocent children from violent acts from taking place in the city of Lubbock is more than worth it. It is certainly worth far more than the money spent on a public park. Children are Lubbock’s future and if it is allowed for children to be murdered in the city of Lubbock what does that say about Lubbock’s vision for the future of their city? Should babies be allowed to be murdered by abortion in Lubbock or should babies not be allowed to be murdered by abortion in Lubbock? It is a simple question.
Could the city of Lubbock be sued? Will the city of Lubbock be sued? Anything is possible. We live in a day and age where people can be sued for anything. But what are we talking about here? What we are talking about the murder of innocent children by abortion in Lubbock, Texas. If someone sues the city for attempting to stop the murder of innocent children by abortion whose side do you want to be on? Do you want to be on the side of the people suing the city who are wanting to murder innocent children or do you want to be on the side of those who are being sued seeking to prevent the murder of innocent children? To date, twenty-three cities in Texas have passed ordinances outlawing abortion within their city limits because they did not want babies to ever be murdered by abortion in their cities. In February of 2020, the ACLU filed a lawsuit against seven Sanctuary Cities for the Unborn only to withdraw their lawsuit in May of the same year. Every one of the seven Sanctuary Cities for the Unborn were represented at no cost to the cities and the taxpayers by Jonathan F. Mitchell – the former solicitor general for the state of Texas. The lawsuit from the ACLU did not cost the seven cities which were sued or their taxpayers one cent, the cities were well represented and defended, and abortion continues to remain banned in every city which was sued.
If the ordinance is voted to be accepted by the citizens of Lubbock on May 1st and the City of Lubbock faces a lawsuit as a result of the adoption of this ordinance there is an attorney who is willing to represent the city at no cost to the city and taxpayers. That attorney is Jonathan F. Mitchell, the former Solicitor General of Texas. So no, it does not have to cost the city anything if they choose to accept the offer of an expert attorney who was a law clerk of Justice Scalia, has experience before arguing cases before the Supreme Court of the United States, and has been quoted in court opinions by Supreme Court justices. Concluding Points The passing of this ordinance is not an attempt to try to run Planned Parenthood out of town. The passing of this ordinance is an attempt to prevent and therefore stop the murder of innocent children by abortion from taking place within the city limits of Lubbock, Texas. If Planned Parenthood would like to offer access to typical health care services for low income women this ordinance does not prevent them from doing that. All this ordinance does is seek to prevent the murder of innocent unborn children by abortion within the city limits of Lubbock, Texas.
The Effort To Outlaw Abortion in Lubbock, Texas
Twenty-three cities throughout the State of Texas have passed enforceable ordinances outlawing abortion within their city limits. Right now there is much interest in the City of Lubbock to pass an enforceable ordinance outlawing abortion within their city limits. If the City of Lubbock passes the Sanctuary City for the Unborn Ordinance before another city does so then the City of Lubbock would become the twentieth city in the nation to pass an ordinance outlawing abortion within their city limits. Because the Lubbock Ordinance Outlawing Abortion will be voted on by the people of Lubbock on May 1st, 2021 and since several other cities will be considering passing an ordinance outlawing abortion between now and then it is likely that Lubbock will not be the twentieth city but a higher number.
The major points of the Lubbock Ordinance are:
1) The Lubbock Ordinance immediately outlaws abortion within the city limits, preventing abortions from taking place within the city limits. The main walk away from the ordinance is this: The Lubbock Ordinance states, “It shall be unlawful for any person to procure or perform an abortion of any type and at any stage of pregnancy in the City of Lubbock, Texas” (Section D1) and “It shall be unlawful for any person to knowingly aid or abet an abortion that occurs in the City of Lubbock, Texas.” (Section D2)
2) The proposed Lubbock Ordinance, like the other Sanctuary Cities for the Unborn ordinances, are enforceable. The Lubbock Ordinance has two major enforcement mechanisms: the public enforcement mechanism (Section E) and the private enforcement
mechanism (Section F).
3) The public enforcement mechanism establishes fines against the abortionist (Section D1, E1) and anyone who aids and abets the abortionist (Section D2, E1) for any abortion which takes place within the City limits of Lubbock. The ordinance is clear that these fines cannot be imposed unless it is determined that the individual seeking to impose the penalty upon the one who committed the unlawful act will not create an “undue burden” on women seeking abortions (Section E2b), the person, corportation, or entity who committed the unlawful act of abortion lacks standing to assert the third-party rights of women seeking abortions in court (Section E2c), or Roe v. Wade and Planned Parenthood v. Casey is overturned (Section E2a). This is only one section of the ordinance and the enforceability of this one section is not immediate, but dependent upon other factors. Unlike the public enforcement mechanism, the private enforcement mechanism is immediately enforceable. (Section F4)
Under the section entitled “Private Enforcement” the Lubbock Ordinance states, “Any person, corporation, or entity that commits an unlawful . . . other than the mother of the unborn child that has been aborted, shall be liable in tort to a surviving relative of the aborted unborn child, including the unborn child’s mother, father, grandparents, siblings or half-siblings. The person or entity that committed the unlawful act shall be liable to each surviving relative of the aborted unborn child for: (a) Compensatory damages, including damages for emotional distress; (b) Punitive damages; and (c) Costs and attorneys’ fees.” Section F-4 clearly states, “The
citizen-suit enforcement action . . . may be brought on or after the effective date of this ordinance.”
4) It also cannot be stressed enough that the Lubbock Ordinance does not go against Roe v. Wade (1973), Planned Parenthood v. Casey (1992) or any Supreme Court ruling, but works within those rulings and current federal and state laws to go as far as we legally can go to prohibit and restrict abortion access under the confines of the undue burden standard which was set by the United States Supreme Court in Planned Parenthood v. Casey (1992).
5) The Lubbock Ordinance does not penalize the mother of the unborn child that has been aborted. As it says in Section E3, “Under no circumstance may the penalty described in Section E(1) be imposed on the mother of the unborn child that has been aborted.”
6) The Lubbock Ordinance contains an exception for the life of the mother. This can be found in Section D3 which says, “It shall be an affirmative defense to the unlawful acts described in Sections D(1) and D(2) if the abortion was in respoonse to a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”
7) Some have erroneously stated that the Sanctuary Cities for the Unborn Ordinance does not immediately outlaw abortion since the “public enforcement” is dependent upon the overturning of Roe v. Wade or a variety of other factors. This is not the case. Section E4 clarifies the fact that abortion is outlawed period, even if the public enforcement is delayed upon other factors. Section E4 states, “The
non-imposition of the penalties described in Section E(1) does not in any way legalize the conduct that has been outlawed in Section D, and it does not in any way limit or effect the availability of the private-enforcement remedies established in Section F. Abortion remains and is to be regarded as an illegal act under city law and a criminal act under state law, except when abortion is necessary to save the life of the mother. And abortion remains outlawed under both city and state law, despite the temporary and partial inability of city and state officials to punish those who violate the abortion laws on account of the Supreme Court’s decisionmaking.“ Remember, if an abortion takes place within the city limits of Lubbock upon the passing of this ordinance, the law is being broken. And while it is true that “public enforcement” is delayed upon other factors, “private enforcement” can immediately take place for any abortion taking place upon the passing of the ordinance because abortion is immediately outlawed within the city limits upon the
8) Abortion is not healthcare. Dr. Karysse Trandem is an obstetrician and gynecologic surgeon who has been board certified for the last seven years and is practicing. Through her practice she has seen patterns of distress in women who have had abortions. She has done research at the National Institutes of Health in Washington, D.C. and the World Health Organization in Geneva, Switzerland and she has been able to compile the risks to women who undergo an abortion. At the Lubbock March For Life Dr. Karysse Trandem
shared with those in attendance at the march that “Healthcare is not abortion.” Dr. Trandem explained, “The risks to women are four-fold. (1) Breast Cancer. Women who have one abortion have a 30 – 40% increased risk of breast cancer in their lifetime. (2) Preterm Birth. Women who have a surgical abortion have a 36% increased chance of having a preterm birth because their cervix was damaged from an abortion. (3) Uterine Damage. There can be a hemorrhage that occurs when an active pregnancy is separated from the wall of the uterus. That can lead to severe hemorrhage, even death, and scarring that prevents future pregnancies. (4) Mental Health Issues. Women who have one abortion have an 81% increased risk of having emotional health problems that stays with them for the rest of their life. Like depression, anxiety, post traumatic stress disorder, and a higher rate of suicide.”
9) If the ordinance is adopted by the City of Lubbock and the City of Lubbock faces a lawsuit as a result
of the adoption of this ordinance Attorney Jonathan F. Mitchell, the former Solicitor General of Texas, is
willing to represent the city at no cost to the city and taxpayers.
10) The Nine Findings mentioned in Section A outline the basis of why the Lubbock Ordinance Outlawing
Abortion Within the City Limits is even possible. The Nine Findings address the Unrepealed State Law Basis
(A1-3), the Separation of Powers Basis (A4-5), the Texas Murder Statute Basis (A6), the Texas Health and
Safety Code Basis (A7), and the Local Government Code Basis (A8-9).
11) Those who we have elected to make laws at our State Capitol in Austin, Texas have passed legislation
which supports cities passing legislation on the local level which prohibits abortion within their jurisdiction.
This is something many of our senators and elected officials have voiced their support of as we join with
them at our local level in making sure babies are not murdered in our cities. (See Elected Official Letter)
For more information about the Sanctuary Cities for the Unborn initiative visit http://www.sanctuarycitiesfortheunborn.com/