In a major court defeat, Planned Parenthood had its lawsuit against the largest “sanctuary city” for the unborn in America dismissed for lack of standing.
A federal court in Texas ruled earlier this month the abortion giant couldn’t sue the city because the ordinance, passed by voters in May, is enforced by private parties. It allows “the unborn child’s mother, father, grandparents, siblings and half-siblings” to sue those involved in the abortion for damages, including those who pay for abortions or otherwise facilitate them, according to The Texas Tribune.
It also declared that “[a]bortion at all times and all stages of pregnancy is declared to be an act of murder.”
However, the city said it wouldn’t invoke government enforcement on the abortion ban unless the Supreme Court overturned Roe v. Wade, instead relying on lawsuits from private parties (or, at least, the threat of them) to enforce the ban.
With roughly 259,000 residents, Lubbock is the largest city to enact sanctuary status for the unborn. It’s also the only sanctuary city for the unborn with an abortion clinic. Planned Parenthood started offering birth control services in Lubbock last year and began performing abortions at the clinic in the spring.
The lawsuit, filed in federal district court, was dismissed on the same day the ban was to take effect — June 1.
“Plaintiffs allege the ordinance is invalid because it violates federal constitutional rights, could not validly create civil liability between private parties, and is preempted by state law,” Judge James Wesley Hendrix wrote in his decision.
“But plaintiffs admit that even if the Court gave them everything they wanted, the Court’s ruling would not bar private citizens from bringing suit in state court, bind the state judiciary by its ruling, 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.”
There’s a larger legal issue here, too: Lubbock’s ordinance follows the same enforcement structures as the Texas Heartbeat Act.
The bill, signed by GOP Gov. Greg Abbott in May, bans abortions as soon as a fetal heartbeat can be detected. However, like Lubbock’s “sanctuary city” law, it also doesn’t involve state or local enforcement. Instead, private citizens could pursue lawsuits against those who “aid and abet” an abortion.
“The Texas Heartbeat Act is novel in approach, allowing for citizens to hold abortionists accountable through private lawsuits. No heartbeat law passed by another state has taken this strategy. Additionally, the bill does not punish women who obtain abortions,” said Rebecca Parma, Texas Right to Life senior legislative associate, according to The Associated Press.
Litigants could seek damages up to $10,000.
“The State of Texas has never repealed its pre-Roe v. Wade statutes that outlaw and criminalize abortion unless the mother’s life is in danger,” Erick Kaardal, special counsel for the conservative law firm Thomas More Society, said in the wake of Hendrix’s decision, according to The Daily Wire.
“The Texas legislature’s recently passed Texas Heartbeat Act is consistent with this, and the Act will take effect on September 1, 2021,” he added.
“The Lubbock ordinance also creates a private-enforcement provision. That allows any citizen of Texas to sue anyone that procures, performs, or aids and abets an abortion, other than the unborn child’s mother,” the Thomas More Society said.
“Cities have the right to regulate businesses and practices within their bounds,” Kaardal added. “A municipality may choose to allow gambling, or even prostitution, or may criminalize it. Abortion is a business, driven by profit, and is required to abide by municipal regulations.”
The force behind the “sanctuary city” for the unborn — Mark Lee Dickson, director of the Right to Life of East Texas — called the ruling an “emphatic vindication.”
“We have said from the beginning that this ordinance is completely bulletproof from pre-enforcement lawsuits,” he said.
That’s the importance of the Lubbock decision; it’s the first major legal test of the structure of the “sanctuary city” bills.
Seven towns in East Texas had passed similar measures and found themselves staring down the barrel of an American Civil Liberties Union lawsuit. However, none of them were home to an abortion clinic. That meant the ACLU lacked standing to pursue a case, since no one had been materially injured by the laws. The suits were dropped.
Lubbock was different, inasmuch as Planned Parenthood believed its abortion clinic in the city gave the organization standing. The court decided otherwise.
Planned Parenthood’s clinic remained open after the decision. However, according to KCBD-TV, it’s no longer performing abortions except when legally permitted.
Ken Lambrecht, president of Planned Parenthood of Greater Texas, said the abortion ban “violates patients’ constitutional rights.”
“We will continue to stand up for [them] with all of our resources,” he added.
This isn’t saying every judge will rule as Hendrix did, and questions of standing are going to get a lot thornier as this moves up the court ladder.
However, his decision is a pleasant augury for what will happen when the Texas Heartbeat Act goes into effect on Sept. 1. Both laws represent a novel legal approach that challenges conventional thinking about how to challenge Roe v. Wade and protect unborn life — one that deserves our attention.
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