Oct. 17, 2019
This article originally appeared in The Texas Tribune.
JOAQUIN—Blount Pharmacy, the lone drug store in this small town nestled deep in the forested Bible Belt of East Texas, doesn’t sell emergency contraception such as Plan B—that requires a 15-mile trip down a state highway to the CVS in Center. The nearest abortion clinic is 50 miles away and across the state line in Shreveport, La.
But that didn’t discourage the city council of Joaquin, population 900, from passing a sweeping ordinance in September to declare itself a “sanctuary city for the unborn.”
The local order—of contested legality and enforceability—aims to outlaw abortion and Plan B if one day the U.S. Supreme Court makes it possible to do so. It declares certain abortion providers and their supporters “criminal organizations.” And it grants the family members of women who have abortions or use emergency contraception the ability to sue the provider for emotional distress.
“We want to send the statement: We don’t want you here,” Joaquin Mayor Bill Baker said of abortion providers. “Our council voted the way that they thought our citizens felt. There’s been no backlash.”
Local conservatives, frustrated by a perceived unwillingness of the Texas Legislature to sufficiently curtail abortion rights—and with encouragement from a traveling activist who compares abortion to the Holocaust—joined an emerging movement of small towns near the Louisiana border.
Four other towns have passed similar ordinances; some, like Joaquin’s, equate abortion with “murder with malice aforethought.” Activists hope to persuade officials in dozens more cities, in Texas and beyond, to adopt similar rules—potentially provoking a legal challenge that could add to a raft of national courtroom showdowns over abortion rights.
The strategy has divided anti-abortion activists, who are pinning their hopes on federal courts that have grown more conservative under President Donald Trump. The U.S. Supreme Court announced this month it would hear a case involving a Louisiana anti-abortion law, perhaps signaling a willingness to revisit abortion restrictions nationwide.
Some see the East Texas ordinances as another opportunity to provoke a legal challenge that could land before a sympathetic panel of judges. Others warn of taking an overly inflammatory approach that is unlikely to survive a legal contest and could set the anti-abortion movement back.
In Joaquin, where 79% of the residents voted for Trump in 2016 and the city council is solidly Republican, supporters of the ordinance say their town is a perfectly logical place to take a stand—even just a symbolic one—against abortion rights.
“I’m proud that Joaquin did it, because all lives matter,” said Lucy Cummings, 67, who’s lived in town for five decades; her nephew, Mike Cummings, is a city councilman who helped draft the ordinance. “I am very, very against abortion.”
Others locals, including some who adamantly oppose abortion on religious or ideological grounds, outwardly wonder why a small town would pick this fight, inviting national attention and perhaps a court case.
Monica Reyes, who owns the downtown Mexican restaurant Cindy’s Place, demurred when asked her opinion of the ordinance. “That’s kind of a big subject for a small town like this,” she said.
“We ain’t even got a doctor’s office,” said Rodney Dean, owner of Dean’s Hardware, a 100-year local fixture that sells to nearby oil and gas businesses.
Still, he said, “I don’t want a[n abortion] clinic in town.”
Most provisions of Joaquin’s ordinance would not take effect unless the U.S. Supreme Court issues a new opinion on the legality of abortion. Specifically, the high court would need to overrule its 1973 decision in Roe v. Wade, a case that originated in Texas and led to the legalization of abortion nationwide by nullifying state laws that banned the procedure.
And the court would need to reverse its 1992 decision in Planned Parenthood v. Casey, which allowed states to enact abortion restrictions only if they do not place an “undue burden” on a woman seeking to terminate her pregnancy.
But the ordinance does immediately allow “any surviving relative of the aborted unborn child” to sue a person in civil court for performing an abortion or providing emergency contraception in Joaquin. A person could also be sued for transporting a woman to an abortion clinic or helping pay for the procedure. It does not make exceptions for rape or incest.
That language has raised the eyebrows of a diverse array of spectators, including the American Civil Liberties Union, which has said it is investigating a possible lawsuit, and even some anti-abortion activists.
Joe Pojman, executive director of the anti-abortion advocacy group Texas Alliance for Life, said he would not advise a local government to pass an ordinance like Joaquin’s.
“It’s not well drafted, and it may not survive a court challenge,” he said. “We just don’t think a court is going to uphold a right to bring a civil lawsuit for an action that the Supreme Court has held to be a constitutional right.”
A more productive outlet for anti-abortion activists, Pojman said, would be to “concentrate on reelecting pro-life incumbents at the state level and to concentrate on reelecting Donald Trump,” who may have the opportunity to appoint additional conservative justices to the high court.
That approach isn’t satisfactory to Mark Lee Dickson, the East Texas activist, pastor and sometimes fireworks salesman who has traveled the state to encourage more than 40 local governments to pass similar ordinances to Joaquin’s. So far, the towns of Waskom, Omaha and Naples have done so; Gilmer opted to pass a version that does not criminalize emergency contraception.
Many city councils “really don’t want a business that murders innocent children on a regular basis,” Dickson, 34, said. “They’re against the mass murders we see in school shootings, and they’re against the mass murders we see of equal number in these abortion clinics.”
He’s set his sights on a long list of towns across East and North Texas and says many have agreed to consider their own ordinance.
In July, the city council of Mineral Wells rejected a version of the ordinance, reportedly because of lawsuit concerns.
Pojman echoed those concerns, pointing to a federal judge’s decision this summer to award $2.3 million in attorneys’ fees to the Center for Reproductive Rights in a long-running Texas case over a sweeping anti-abortion law that the U.S. Supreme Court ultimately struck down.
“That’s money for the other side, which is a setback and bad precedent,” Pojman said.
Supporters of the East Texas ordinances said they took their efforts to small towns after the Texas Legislature failed to impose even greater restrictions on abortion providers. Though abortion rights are perennially under fire at the conservative Legislature—this year, for example, state lawmakers passed a law banning local governments from paying any organization that is affiliated with an abortion provider—some feel Texas has fallen behind other states.
Stacy Cranford pointed to the example set just across the state line in Louisiana, where a Democratic governor this summer signed a law banning abortion once a fetus has a detectable heartbeat, which can occur as early as six weeks into pregnancy. Nearly a dozen states have passed similar laws, though none has gone into effect because they are tied up in federal lawsuits.
“The Texas Legislature didn’t take any action on it, so this is our voice saying, ‘This is what we wish y’all would do,’” said Cranford, school board president of the Gary Independent School District. He said local leaders in Gary City, roughly 25 miles west of Joaquin, are considering passing their own ordinance.
Abortion rights advocates say the local ordinances are dangerous because they may lead people to believe, falsely, that abortion is illegal.
“It seems frivolous, like what is the point in doing this except to incite some fear, intimidate, and further stigmatize abortion,” said Kamyon Conner, executive director of the Texas Equal Access Fund, which helps low-income women afford abortion. Joaquin’s ordinance lists Conner’s group as a “criminal organization.”
In protest of the ordinance in Waskom, the first Texas town to declare itself a “sanctuary city for the unborn,” abortion rights advocates paid for a billboard advertisement outside of town that says, “Abortion is freedom.”
One thing the supporters and opponents can agree on: The ordinances are primarily for show.
"Let’s face it—what kind of legal battle would we be in for to enforce it?" Baker, the Joaquin mayor, said. "We’ve made our statement.”