Federal Judge Tosses Challenge to West Texas City’s Abortion Ban

Lubbock residents voted to make it a “sanctuary city for the unborn” last month, a year after the City Council rejected an abortion ban over constitutionality concerns.

Downtown Lubbock, Texas. (Image by Redraiderengineer from Wikipedia Commons via Courthouse News)

LUBBOCK, Texas (CN) – A federal judge late Tuesday dismissed Planned Parenthood’s lawsuit against the city of Lubbock’s voter-approved abortion ban for a lack of jurisdiction, punting to Texas state courts to take up the matter.

U.S. District Judge James Hendrix in Lubbock concluded that even if he gave the plaintiffs “everything they wanted” in the lawsuit, his ruling would not block private citizens from suing Planned Parenthood in state court under the ordinance, nor could he be able to bind state courts to his advisory opinion or force the ordinance’s repeal.

“Because the ability to remedy a plaintiff’s injury through a favorable decision is a prerequisite to a plaintiff’s standing to sue – an ability absent here – the court dismisses the case for lack of jurisdiction,” the 50-page opinion states. “Because plaintiffs fail to show that any relief provided by this court is likely to redress the injury at issue – citizen suits brought in state court – the court lacks jurisdiction.”

Hendrix dismissed the case without prejudice, meaning Planned Parenthood could refile later if necessary. The Donald Trump-appointed judge said he did so to allow state courts to rule on Planned Parenthood’s claim the city lacks authority to create civil liability between private individuals and abortion providers under the ordinance and for federal courts to then rule on any remaining questions.

Planned Parenthood of Greater Texas Surgical Health Services and a Lubbock doctor sued the city last month, alleging the “Ordinance Outlawing Abortion” that creates a “sanctuary city for the unborn” violates patients’ due process rights under the 14th Amendment. The complaint states the ordinance defies decades-long U.S. Supreme Court precedent set in Roe v. Wade and exposes medical workers to the threat of civil lawsuits.

“It invites any Texas citizen to obtain an injunction against anyone who plans to procure, perform, aid, or abet an abortion,” the lawsuit states. “It permits these lawsuits at any time, and bars providers from citing the patient’s consent as a defense.”

Planned Parenthood argues only the state has the power to create such a liability, not the city.

The ballot measure passed on May 1 with 62% of the vote and went into effect on Tuesday. It bans all forms of abortion with the exception of when the mother’s life is in danger. Lubbock joins 23 other cities in Texas that have passed similar or identical ordinances at the prodding of anti-abortion groups, becoming the largest city in the state to do so.

Planned Parenthood said Wednesday it will now only provide abortion services in Lubbock when legally permissible, meaning only when there is a medical emergency.

“This ban on abortions provides no exemptions, even in cases of rape and incest,” said Ken Lambrecht, president and chief executive officer of Planned Parenthood of Greater Texas. “The Lubbock abortion ban creates significant barriers and the need to travel a minimum 600-mile round trip or out of state for patients seeking to obtain an abortion.”

Planned Parenthood said it will continue to provide other sexual and reproductive health care services in the city, including providing birth control medication, vaccines and treatments for sexually-transmitted diseases.

Lubbock officials said Wednesday the city is “pleased” with the dismissal of the lawsuit.

“Judge Hendrix issued a thorough and well-reasoned opinion in dismissing the case for lack of jurisdiction, which is a threshold consideration for any court to make respecting a lawsuit before it,” the city said in a statement. “The city is presently unaware of the plaintiffs’ intentions as to whether an appeal will be filed or whether additional lawsuits will be filed against the city. Nevertheless, the city will continue to vigorously defend the ordinance in any litigation that may be filed.”

The judge’s dismissal comes four days after he indicated during an hours-long hearing on the case that any ruling for Planned Parenthood would be nonbinding to state courts hearing lawsuits over the ordinance and that it would not alter the ordinance.

The clinic’s attorney, David Lehn with Wilmer Cutler in Washington, told Hendrix a declaration invalidating the ordinance would pressure the city to change it.

The abortion ban was passed by voters one year after the Lubbock City Council unanimously rejected a similar ordinance after the city determined it would likely be struck down as unconstitutional in court.

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