The next steps for the Sanctuary City for the Unborn ordinance

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LUBBOCK, Texas — On Tuesday, the City of Lubbock unanimously voted to reject the Sanctuary City for the Unborn ordinance, following several hours of holding a public hearing. This comes after several months of planning and organizing for members of a committee, who presented a petition to city council members and collected more than four thousand verified signatures.

Related story: City, public hearing Tuesday to tackle “sanctuary for the unborn Status in Lubbock

Related Story: City Council Formally Accepts Citizens Petition Regarding Sanctuary City for the Unborn

Mark Lee Dickson is a pastor and the Director for Right to Life East Texas. He has travelled to several Texas cities to introduce an ordinance that would outlaw abortion within city limits.

“Abortion is the taking of innocent children, unborn children made in the image of God,” Dickson said.

Dickson said he had the idea for such an ordinance after growing concern of Planned Parenthood crossing state lines from Louisiana and establishing a clinic in Waskom, TX, following a growing number of states imposing restrictions on abortion.

In 2019, he went to Waskom, and introduced an ordinance.

“Waskom became the first city in the nation to outlaw abortion by the passing of an enforceable ordinance,” Dickson said.

Waskom was the first of now 15 cities to outlaw abortion in Texas. The cities are relatively small, the biggest being Big Spring, TX. The population there as of 2019 is 28,187, according to the U.S. Census Bureau.

“We wanna see this in every city as possible,” Dickson said.

With his sights set on Lubbock, it would be the largest city to impose such an ordinance.

Planned Parenthood has indicated the clinic in Lubbock will not perform abortions until 2021.

Related Story: Planned Parenthood opens Lubbock clinic

“Planned Parenthood had you know said Lubbock and so it definitely, we had already collected some signatures in Lubbock and so the process had already started but that definitely changed the game,” Dickson said.

Madison, a Lubbock resident, went public with her own abortion in 2016.

“I’ve been very frustrated with parts of the community that have been trying to fight it because of the fact that Lubbock is a Hub City. People come here for healthcare,” Madison said.

She said her baby had a genetic abnormality, and was told the risks of carrying her child after it was found the baby’s body was covered in fluid,” Madison said. “My high-risk doctor wasn’t legal at the hospital he worked for to recommend abortion so he kind of just said, at this point, we recommend you take care of yourself and he gave me a sticky note with phone numbers on it for the clinics.”

Madison said she was now left with a difficult decision.

“I just spent a lot of my time just like praying and begging for an answer of what to do,” Madison said. “We just decided that it was time to take care of me and save my life at that point with all of the risks and being so early in the pregnancy still.”

She and her mother travelled more than 300 miles to a women’s clinic in Albuquerque.

“Had I been able to stay home during that time and not travel five hours and stay in a hotel, it would have been different. I would have been able to be here with my family, to grieve with my family,” Madison said.

After the experience, Madison said her outlook has changed.

“I have two beautiful babies that I would have never had, had I not made this decision. It’s afforded me a lot of outlook in women and women’s rights when it comes to our reproductive systems and I think it’s really made me an advocate for that,” Madison said.

She believes the decision should be up to a woman and her doctor, not the government. She believes it’s an intimate decision.

“I just have so many people tell me all the time, ‘well your story’s different, like yours was okay’ and I’m just… it kind of frustrates me because mine wasn’t different. Legally, it was an abortion and I made the decision and I had every right to carry my pregnancy and see if I wanted to with the risks involved,” Madison said. “I think that’s what any woman is trying to do whenever they do go in and make that decision, is that they truly believe they’re doing what’s best for them or their family at that point.”

Dickson said each ordinance is tailored to fit the needs of the city. The ordinance would make abortion illegal within city limits, but it would also make it illegal to help someone get one, such as providing transportation to a provider or providing someone with money knowing it will be used to obtain an abortion.

Enforcement of the ordinance would work in two ways: public and private enforcement.

Public enforcement states anyone who commits an unlawful act would be subject to the maximum penalty under Texas law for the violation of a municipal ordinance governing public health. However, public enforcement would not be possible until certain court changes occur, such as the overturning of Roe v. Wade and Planned Parenthood v. Casey. Dickson said this is something that could happen in the near future, however, scholars of law have found the ordinance problematic.

“Fundamentally this thing doesn’t pass constitutional muster,” Richard D. Rosen, Professor of Law at Texas Tech University, and teaches courses on constitutional law, said.

Dickson said he doesn’t see an issue with the basis of the ordinance.

“There’s nothing wrong with us acknowledging laws that are still in the books that have been rendered unenforceable due to current Supreme Court rulings but they’re still the law of the land,” Dickson said.

However, Rosen said since the Supreme Court has already decided on the issue, the Supreme Court ruling overrides state laws.

“To me, that’s like saying but for Brown v. Board of Education a provision in a Constitution that says we can have racially segregated schools is legal,” Rosen said.

Dickson said the driver of the ordinance can be found in private enforcement, which states someone like a family member could sue someone who aided or encouraged an abortion for no less than $2,000 for each violation, as well as other fees, and it doesn’t matter how long ago it was– even if the mother consented to the abortion. The mother could not be sued, instead, Rosen said doctors would face liability.

Although not a Texas lawyer, he said Texas law recognizes the right to an abortion. He said Chapter 171 of the Texas Health and Safety Code deals with abortions, and lists the steps a physician must take before getting the consent of the women to perform an abortion.

He said if the ordinance had passed, the doctor could have followed all of the regulations and still be sued for damages. Additionally, women don’t need to tell anyone they’re getting an abortion, much less ask for permission from a family member such as her husband.

“That’s indeed problematic, plus it provides for citizens lawsuits, essentially citizens acting as private attorney generals to try to shut down abortion clinics and ultimately that runs afoul, I believe on Roe v. Wade,” Rosen said. “I think that’s unconstitutional.”

The City of Lubbock hired the Houston law firm, Olson and Olson, who found the ordinance conflicts with state law. Still, Dickson said the ordinance is possible.

Related Story: City shuns proposed sanctuary for unborn as contrary to Texas law

“Senator Charles Perry and Rep. Dustin Burrows and Frullo have gone out of their way to say hey this is something that can be done and is legal to do here in Lubbock, Texas,” Dickson said.

Texas Senator Charles Perry is part of the committee who presented the petition and said the ordinance doesn’t guarantee abortions won’t be conducted but serves as a deterrent.

“Does that meet constitutional merits up and down the line? Never been tested. I trust the judiciary to make those calls whether they rule for or against,” Perry said. “But that’s never been tested.”

In a 7-0 vote, members of the city council agreed the ordinance violates the Constitution and is not enforceable.

“There have been some reports that Mr. Perry indicated that the U.S. Supreme Court was really not making laws, it was just opinions. Well, if you go back to Marbury v. Madison, which is an 1803 case, that case decided the principle of Judicial Review. And they gave it to the United States Supreme Court and that is the ultimate law of this land.”

Despite the city council’s decision, the fight for the ordinance may not be over yet.

“The defense of the ordinance is something I need to speak with the attorneys on… what happens if that starts back up with abortion services,” Perry said.

If the decision of the majority of the committee is to move forward, the committee has 20 days to file a request, putting the ordinance to a vote. City Secretary Becky Garza said the committee would have until December 7 to submit a sworn statement requesting an election. The election would take place May 1.

If voters approve the ordinance, Lubbock officials have said the city would still not be able to enforce it. A statement from the city in mid-October said the proposed ordinance is inconsistent with the Texas constitution and could possibly open the city to legal challenges.

The following is a statement from Planned Parenthood:

“We are proud to be part of Lubbock’s friendly, diverse community providing trusted, affordable healthcare services including cancer screenings, birth control, STI testing and treatment, HIV tests, PrEP and PEP medication to prevent HIV transmission, treatment for urinary tract and vaginal infections and other healthcare services. All are welcome at Planned Parenthood regardless of insurance or documentation status, income level, where they live or who they love. Next year, Planned Parenthood’s Lubbock health center plans to provide medication and surgical abortions. Abortion is an essential healthcare service currently available only to Lubbock residents who are able to travel to a nearby state or hundreds of miles to Fort Worth, Dallas or another Texas city. We trust Texans to make their own personal medical decisions. A controversial political campaign to ban abortion locally undermines access to healthcare and only further stigmatizes Texans who seek an abortion.,” -Sarah Wheat, Planned Parenthood of Greater Texas spokesperson

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