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When the idea of banning abortion in Lubbock first came up, the city council declined to take it up, arguing the proposal conflicted with state law and federal court precedent.
Residents passed the ordinance through a ballot initiative anyway in May 2021, empowering private citizens, rather than public officials, to bring lawsuits against anyone who assists someone getting an abortion, like by driving them to a clinic — which the ordinance refers to as “aiding or abetting.”
The ordinance was immediately challenged in court. But now, eight months later, Planned Parenthood has dropped that legal challenge, saying “it is clear we cannot depend on the courts to protect our constitutional rights.”
It is the latest sign of how the legal protections for abortion have been weakened over the last year, thanks to a more conservative U.S. Supreme Court and a legal loophole identified by Texas politicians.
“The Lubbock ordinance marks the first time that an abortion ban has survived court challenge in the United States since Roe v. Wade,” Mark Lee Dickson, director of Right to Life of East Texas and the mastermind behind these city ordinances, wrote on his Facebook page.
The Lubbock ordinance uses a similar private enforcement mechanism as a state law, passed this year, that bans abortions after about six weeks of pregnancy. The U.S. Supreme Court has declined to block enforcement of that law and has allowed only the narrowest of legal challenges to go forward.
A federal district judge dismissed Planned Parenthood’s lawsuit against the Lubbock ordinance in June, saying the provider had no standing to sue city officials because they don’t enforce the law. Planned Parenthood has ceased providing abortions at its Lubbock clinic as a result of the ordinance, leaving the nearest clinic over 300 miles away — in Fort Worth.
“While we have determined not to move forward with this appeal, this is not the end of our fight in Lubbock, and we continue to consider all legal options to challenge this unconstitutional local ban,” said Ken Lambrecht, president and CEO of Planned Parenthood of Greater Texas, in a statement.
In a statement, the Lubbock City Council said it was “pleased” that Planned Parenthood had dropped the appeal.
“The City Council promised to defend this ordinance in Court and is gratified to have done so successfully,” the members said.
A changed landscape
The “sanctuary city for the unborn” movement started in East Texas in 2019, and since then, Dickson has helped more than 40 cities across the country pass these largely hypothetical ordinances. Lubbock, home to Texas Tech University, is the largest city to take up the cause — and the first with an abortion provider actually within city limits.
The ordinance bans abortions from the moment of conception, with no exception for rape or incest, and is enforced by allowing “the unborn child’s mother, father, grandparents, siblings and half-siblings” to sue abortion providers.
The city ordinance relies on the same legal loophole as Texas’ new, highly restrictive abortion law, which empowers private citizens, rather than public officials, to bring lawsuits against anyone who they say is “aiding or abetting” in a prohibited abortion.
The state law, known as Senate Bill 8, differs from the city ordinance in that it allows abortions up until fetal cardiac activity is detected, usually around six weeks of pregnancy, and allows anyone — whether they’re personally connected to the abortion or not — to sue.
But both are designed to evade judicial review, giving abortion providers few avenues to challenge the laws in court.
Richard Rosen, a constitutional law professor at Texas Tech, told The Texas Tribune when the ordinance passed that he believed the private lawsuits against abortion providers would ultimately fail — “as long as Roe is good law.”
But eight months later, Rosen said, “it’s a whole new ballgame.”
The U.S. Supreme Court declined to block enforcement of Texas’ Senate Bill 8 and threw out most of the abortion providers’ challenges. Abortions after about six weeks of pregnancy have been banned in Texas since Sept. 1.
The Supreme Court allowed only one legal challenge to proceed: against licensing officials who could discipline medical providers who perform prohibited abortions. That case is currently awaiting a hearing before the Texas Supreme Court, a process that is expected to take weeks or months to resolve.
Additionally, the U.S. Supreme Court heard arguments in December on a 15-week abortion ban in Mississippi that could overturn Roe v. Wade and Casey v. Planned Parenthood, the two Supreme Court cases that established a constitutional protection for pre-viability abortion. The court is expected to rule this summer.
Lambrecht, the Planned Parenthood CEO, said these cases show that legal challenges may no longer be the best course of action for abortion providers as “abortion access hangs by a thread across the country.”
Rosen, at Texas Tech, said the uncertainty surrounding Roe v. Wade means these city and state rules are even more difficult to navigate. Lubbock's ordinance has no statute of limitations. The statute of limitations for the Texas law is four years.
“If [a private lawsuit] comes before the court, it seems to me that judges in Lubbock ought to throw it out based on Roe and Casey,” he said. “But the plaintiff can wait until the Supreme Court makes its decision and if the court overturns Roe and Casey, then they can sue.”
This has left abortion providers in a legal limbo, awaiting rulings from state courts, federal courts and the U.S. Supreme Court to decide how and if they can resume abortions after about six weeks in Texas — or after conception in Lubbock.
“We have said from the beginning that the abortion bans we have drafted are bulletproof from court challenge,” Dickson said. “We are pleased that the litigation over Lubbock’s ordinance has proven us right. We will continue our work to enact similar ordinances in other cities throughout the United States.”
Disclosure: Facebook, Planned Parenthood and Texas Tech University have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
Correction, Jan. 26, 2022: A previous version of this story incorrectly said that Texas' new restrictive abortion law has no statute of limitations. The statute of limitations is four years.