Setting Stage for Court Battle, Texas City Votes to Ban Abortion

After voters in Lubbock approved a local ban on nearly all abortions, the ACLU warned of a costly legal fight.

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

LUBBOCK, Texas (CN) — On Saturday, residents of Lubbock, Texas, voted to make it a “sanctuary city for the unborn,” ostensibly banning abortions within city limits. It’s the largest city to pass such an ordinance and the only one with an abortion provider, setting up the West Texas college town for legal clashes with groups like Planned Parenthood and the ACLU.

Polls show that a majority of Texans support keeping abortion legal. Some Lubbockites say anti-abortion thinking runs deep in the city, though it’s unclear where exactly residents stand overall since just around 19% of registered voters turned out for Saturday’s vote.

Opponents say the ordinance – which bans abortion in the city except when a woman’s life is in danger – could have a chilling effect, discouraging women in the area from seeking the procedure and further pushing providers into the shadows. Abortion remains legal under federal law, protected by the U.S. Supreme Court’s 1973 decision in Roe v. Wade.

The Lubbock ordinance is the latest skirmish in the war over access to women’s health care in Texas. Twenty-three other cities in the Lone Star State have passed similar or identical ordinances, backed by groups like Sanctuary Cities for the Unborn and Texas Right to Life. So far this year, state lawmakers have introduced several bills aimed at curtailing or banning abortion.

Drucilla Tigner, a policy and advocacy strategist at the ACLU of Texas, sees Lubbock’s ordinance as part of a longstanding effort to undermine abortion rights. “This is the next frontier in a strategy of attempting to ban abortion in any way possible,” she said.

When the referendum passed with 62% of the vote, Texas Right to Life celebrated the “life-saving ordinance” and promised it would “continue our work to end abortion statewide.” In response, the ACLU called the ordinance “harmful” and warned Lubbock could face “costly legal battles.”

Planned Parenthood, which just started performing abortions in Lubbock again last month, says it isn’t going anywhere — though the provider did say it was “reviewing the impact of the ordinance” and would “make decisions soon regarding the availability of abortion services in Lubbock.”

“Our doors will remain open,” Planned Parenthood said in a statement. “We remain committed to advocating for access to abortion for any Texan.”

A decade ago, Planned Parenthood had a branch in Lubbock. But in 2013, the Texas Legislature passed strict new requirements on abortion clinics, including new building rules and a requirement that doctors have admitting privileges at a nearby hospital. Within years, more than half of Texas’ abortion clinics had shuttered, including the Planned Parenthood in Lubbock, according to an analysis by the Texas Tribune.

Abortion rights advocates sued, arguing the new restrictions served no purpose and therefore imposed an unconstitutional burden on abortion providers.

The Supreme Court agreed in 2016. Writing for the majority in Whole Woman’s Health v. Hellerstedt, Justice Stephen Breyer said the Texas laws did not benefit patients and were unnecessary. The ruling paved the way for the return of women’s health clinics to underserved parts of the state. By 2019, Planned Parenthood had reopened its El Paso location and was discussing plans for further expansion in West Texas, including a reopening of its Lubbock branch.

Protesters on both sides of the abortion issue gather outside the U.S. Supreme Court in January 2018. (AP Photo/Susan Walsh)

Around the same time, on the other side of the state, anti-abortion activist Mark Lee Dickson was starting his crusade to encourage cities to ban abortions on a local level. An East Texas native, Dickson had heard rumors that a women’s clinic in Shreveport, Louisiana, was closing. He worried what that meant for Waskom, a nearby town of around 1,600 just across the Texas-Louisiana border.

Dickson started organizing, drafting the first of many such sanctuary ordinances. In 2019 — in a move that captured national attention — the all-male city council of Waskom passed it.

“Five men outlaw abortion in a Texas town,” a Washington Post headline blared. The pro-life sanctuary cities movement was born.

Planned Parenthood reopened its Lubbock office last year. In a sparsely populated region with scare health resources — especially when it comes to reproductive health — the reopening was big news, prompting an article in Texas Observer.

First in line for services was Shelley Woodbridge, a self-described “Jesus follower” and “very pro-life” mother of three. Woodbridge needed a check-up and disagreed with those who wanted Planned Parenthood gone again. “Nothing gets me heated like a man who doesn’t have a uterus to tell me how to run mine,” Woodbridge told the Observer.

Some anti-abortion activists say the return of Planned Parenthood to Lubbock helped galvanize opponents of abortion.

Kimberlyn Schwartz, a spokesperson for Texas Right to Life who attended college at Texas Tech University in Lubbock and once ran an anti-abortion campus group, said the reopening “definitely” inspired activism against abortion in the city. She hoped Lubbock’s new ordinance would cause a “ripple effect,” prompting other conservative cities across the country to adopt similar rules.

Dickson, the anti-abortion activist for Sanctuary Cities for the Unborn, sees things differently. Long before Planned Parenthood announced a West Texas expansion, he said many in Lubbock were already on board with banning abortion in city limits.

“There was interest in Lubbock as soon as Waskom outlawed abortion,” Dickson said in an interview. “People reached out to me about wanting to do this in Lubbock. I was very slow to the idea. I’m an extremely cautious kind of guy.”

When a draft ordinance first came onto the radar of Lubbock City Council last year, even its conservative members wanted nothing to do with it.

Abortion is legal, those officials said, and they had a responsibility as city leaders to uphold the constitution. The warned the ordinance would be unenforceable and could mean costly lawsuits for the city. A legal review from an outside firm, Houston-based Olson & Olson, offered similar warnings.

Public interest in the issue was intense in Lubbock. Almost 500 letters poured into the city, with most constituents urging officials not to pass the ordinance. A public-comment period in November, which clocked in at more than five hours, leaned the other way.

When it came time for a vote that night, many City Council members took pains to stress their anti-abortion bonafides.

“I personally abhor [abortion],” Councilmember Randy Christian said. “Birth is God’s miraculous way of beginning this precious gift called life.” But he warned the ordinance would be “unconstitutional, unenforceable, and costly.” In the end, the council voted it down, 7-0.

Undeterred, supporters of the ordinance started organizing. They gathered signatures and pushed for a ballot measure. In December, the City Council agreed to put the issue on the May ballot.

Opponents were also organizing. Aurora Farthing, a longtime Republican activist in the city who is still registered with the party but no longer identifies with it, started a political action committee. She warned that “Lubbock taxpayers are being used as pawns” in a national fight over abortion rights.

Farthing said in an interview that her family worried when she spoke out against the ordinance. She hasn’t faced threats of violence, but strangers sometimes confront her in public and tell her she’s going to hell.

“It’s a painful reality here in Lubbock, Texas,” she said. “It’s a hard place to live as a woman.”

Don’t expect law enforcement in Lubbock to crack down on providers just yet. The ordinance admits city officials have a “temporary inability” to enforce the ordinance, instead allowing private citizens to sue those who perform abortions or help women get them.

Supporters say Jonathan Mitchell, an Austin lawyer who has advised the anti-abortion sanctuary city movement, has offered to defend Lubbock against any legal challenges at no cost to the city. Mitchell confirmed this but declined an interview for this story. He pointed to case law, including the 2001 Fifth Circuit decision in Okpalobi v. Foster, that he said would make it difficult for Planned Parenthood to mount any preemptive legal challenges against the ordinance.

Josh Blackman, a constitutional law professor at South Texas College of Law, agrees.

“Planned Parenthood is going to be in a tight spot,” he said. With the ordinance preventing Lubbock from taking legal action, “there’s no one to sue.”

“It’s a clever bill,” Blackman added, saying groups like Planned Parenthood “have to play defense rather than offense.”

Other legal scholars aren’t so sure. Richard Rosen, a constitutional law professor at Texas Tech, spoke on a panel about the ordinance in April. Everyone on the panel agreed the ordinance was unconstitutional due to Roe v. Wade. Rosen said he hasn’t yet heard any convincing counter-arguments.

John Finn, a professor emeritus of government at Wesleyan University who calls the ordinance a “basket case of constitutional difficulties,” goes further. Because the ordinance aims to curtail protected speech and actions, he says, Lubbock is vulnerable to lawsuits even if no private citizens test legal claims.

He cited the example of a man who might theoretically aid or abet an abortion by talking to his girlfriend about one — an act that’s prohibited by the Lubbock ordinance.

“I think somebody has standing immediately to say, ‘This is a chilling of my First Amendment rights,’” Finn said.

Regardless of what comes next for Lubbock, advocates worry the move will jeopardize women’s health care in a city that needs it. The city has high rates of teen pregnancy and STDs and is dotted with “crisis pregnancy centers,” controversial clinics that purport to offer guidance on procedures like abortion but instead pressure young women to bring pregnancies to term.

Cameron Taylor, a recent graduate of Texas Tech, recalled the time in college when she ended up at a crisis pregnancy center.

“It was a complete joke,” she said. “I went in for an STD test, and they made me fill out a pamphlet about God.”

More recently, Taylor was canvassing Lubbock’s nightlife district in opposition to the ordinance when she says a group of frat boys started following her, tearing her posters down.

“There’s already a tendency to come after women for their beliefs,” she said, adding that the ordinance won’t help. “It gives men the rationale to further abuse you.”

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