11/03/2022
Let's clear up some confusion! Explanations from Mark Lee Dickson...
FWD: Although this post is lengthy, I trust that me taking the time to address these errors will not be ignored.
Regarding Texas Abortion Laws
Right now Texas has three major laws on their books impacting abortion access: the pre-Roe v. Wade criminal abortion statutes, the Texas Heartbeat Act, and the Human Life Protection Act.
The Texas Heartbeat Act (which went into effect September 1, 2021) prohibits abortions and the aiding or abetting of an abortion from the point of a detectable heartbeat, prohibits government enforcement and can only enforced by private citizens filing lawsuits against those who are in violation of the law. The pre-Roe v. Wade criminal abortion statutes (which became fully enforceable again on June 24, 2022 at 9:11 Central Time) prohibits performing an abortion and the aiding or abetting of an abortion from the moment of conception, but is only enforced through the government and not by private citizens. The Human Life Protection Act (which went into effect August 25, 2022) prohibits the same conduct as the pre-Roe v. Wade statutes, but adds greater penalties and allows the Attorney General to seek civil penalties up to $100,000 for any violation of the law. The law, like the pre-Roe v. Wade criminal abortion statutes, is just enforced by the government and not by private citizens.
If passed, the San Angelo Sanctuary City for the Unborn Ordinance will prohibit performing an abortion and the aiding or abetting of an abortion from the moment of conception under the laws of the City of San Angelo and is enforced both by the government and by private citizens filing lawsuits against those who are in violation of the law. This extends the private enforcement mechanism found in the Texas Heartbeat Act past the point of a detectable heartbeat to the moment of conception. Another thing that is unique about the San Angelo Sanctuary City for the Unborn Ordinance is that the law would prohibit any abortion performed on a resident of San Angelo, regardless of where that abortion takes place.
Speaking of the Athens Sanctuary City for the Unborn Ordinance, which is almost identical to the San Angelo ordinance, Attorney Justin Roberts with Roberts & Roberts in Tyler, Texas shared with KETK, “The major difference here is that the Athens ordinance is more restrictive than the state law. And the deal here is that if somebody helps someone that is outside of the state get an abortion outside of the state they could still be subject to a penalty in Athens.” Roberts said whether or not you can “really stop out-of-state conduct between two Athens citizens” is going to be a “major political and judicial question in the coming years.”
The Fourteenth Finding of the San Angelo Ordinance reads, “The law of Texas explicitly allows municipalities and political subdivisions to outlaw and prohibit abortion, and to establish penalties and remedies against those who perform or enable unlawful abortions.”
The finding references Section 311.036(b) of the Texas Government Code which states, “A statute may not be construed to restrict a political subdivision from regulating or prohibiting abortion in a manner that is at least as stringent as the laws of this state unless the statute explicitly states that political subdivisions are prohibited from regulating or prohibiting abortion in the manner described by the statute.”
In a May 2021 interview with KCBD Lubbock, constitutional law professor Josh Blackman said the Governor’s signature on the Texas Heartbeat Act supports any city which wishes to outlaw abortion. Speaking of the Texas Heartbeat Act, Blackman shared, “It says that if a local municipality like Lubbock wants to go further and impose greater restrictions on abortion, they can, so they won’t be in conflict. These two laws will be in harmony.”
Regarding Insurance Coverage For Abortions
Your report reads, “KTAB reported some of the most controversial issues with the proposed ordinance were abortion coverage — which could prohibit certain employer-provided health benefits and subject any employee whose company is in city limits and provides health benefits that pay for abortion to thousands of dollars in fines.”
Unfortunately, there is much misinformation from reporter Tyler Henderson and Councilman Lynn Beard about how this provision in the Abilene (and likewise the San Angelo, Plainview, and Athens) ordinances impacts businesses.
In 2017 Governor Abbott signed into law House Bill 214 which prohibited insurance providers in the state of Texas from covering abortion procedures as part of their general coverage. While some are just now discovering this, this has been the law of Texas for over five years.
The Guttmacher Institute, which is described as a “leading research and policy organization committed to advancing sexual and reproductive health and rights worldwide,” released an updated report on this subject on October 1, 2022.
According to the Guttmacher Institute, abortion coverage is banned in all private insurance plans, health exchanges, and in all insurance policies for public employees in the State of Texas with the only exception being the life of the mother or in cases where there is a “substantial and irreversible impairment of a major bodily function.”
The proposed ordinance in the City of Abilene (and likewise San Angelo, Plainview, and Athens) does not contradict the laws of the State of Texas or this report from the Guttmacher Institute.
The Abilene Sanctuary City for the Unborn Ordinance reads in Section 20.88.(a):
“It shall be unlawful for any employer in the city of Abilene, Texas, and for any person acting on that employer’s behalf, to offer, provide, or arrange for coverage of abortion in any health-insurance policy or plan, flexible spending account, health savings account, or any other benefit provided to its employees, except for abortions performed in response 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.”
So the question becomes, what do the proposed ordinances do which the current laws do not?
The Abilene ordinance states in Section 20.88(b): “Whoever violates this section shall be subject to the maximum penalty permitted under Texas law for the violation of a municipal ordinance governing public health, and each violation shall constitute a separate offense.”
If this law is adopted, and a business in Abilene violates the law of the city of Abilene, then the City of Abilene has the ability to fine the business in violation $2,000 per violation per offense. In addition to this, officials in the City of Abilene have a responsibility to report employers who are guilty of this act to the appropriate district attorneys for criminal prosecution under article 4512.2 of the Revised Civil Statutes and Section 7.02 of the Texas Penal Code.
4512.2 of the Revised Civil Statutes states, “Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice,” and Section 7.02 of the Texas Penal Code states: “A person is criminally responsible for an offense committed by the conduct of another if: (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or (3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.”
In addition to fines imposed by the City of Abilene, Section 20.92(a) creates a private right of action, stating, “Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action in state court against any person who violates or intends to violate . . . 20.88.”
Some may take issue with the private right of action being used against employers who would provide insurance coverage for abortions. However, Chapter 171.208(a) of the Texas Health and Safety Code already addresses this, reading: “Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who . . . knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter.”
So what makes this state law different from the proposed local law? The state law is a part of the Texas Heartbeat Act, only allowing lawsuits against abortionists and those who aid and abet the abortion of children with a detectable heartbeat. The proposed local law goes further (as allowed in Sec. 171.206, b(3), allowing lawsuits to be filed against abortionists and those who aid and abet the abortion of children from the moment of conception.
In Regards to Abilene-based lawyer Kristin Postell’s Concerns
Attorney Kristin Postell rightfully pointed out that the Abilene ordinance does not have a statute of limitations. However, what Attorney Postell gets wrong is the idea that this ordinance is retro-active and that the ordinance penalizes the mother of the unborn child.
Postell states, “Murder and sexual assault, those kind of things don’t have statutes of limitations. But the way this is written, there is nothing that prevents anyone to say hey somebody had an abortion in the 80’s and, ‘I want to sue them.’”
First off, the Abilene ordinance does not allow anyone to sue the mother of the unborn child. Section 20.91 (j) clearly states, “Under no circumstance may a civil action under this section be brought against the mother of the unborn child that has been aborted, or the pregnant woman who seeks to abort her unborn child.”
Secondly, if passed, the Abilene ordinance would go into effect after the votes are canvassed. The ordinance would then apply from that point forward, not 40 years ago. The idea that someone could be sued under this city ordinance for an abortion they had in the 1980’s is just not true. The ordinance does not allow lawsuits against the mother of the unborn child and the ordinance is not retroactive.
The Sanctuary City for the Unborn ordinances do not get in the way of the pre-existing state laws, but compliment one another. One of the reasons why the Abilene ordinance is much longer than the Lubbock ordinance is due to how much the Abilene ordinance references not just the pre-Roe v. Wade criminal abortion statutes, but also the Texas Heartbeat Act.
Again, Postell gets the ordinance totally wrong when she says, “It’s trying to give a private cause of action so someone can sue somebody and get money if they try to get an abortion.” The ordinance does not allow lawsuits against the “mother of the unborn child that has been aborted, or the pregnant woman who seeks to abort her unborn child.”
If I can be of any help, do not hesitate to reach out.
Sincerely,
Mark Lee Dickson
Director, Right To Life of East Texas
Founder, Sanctuary Cities for the Unborn Initiative
Author of the Abilene, Athens, Plainview, San Angelo Ordinances
