How blue – and red – cities are resisting state abortion laws
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Sarah Matusek Staff writer
Officials in more than a dozen blue cities from Boise, Idaho, to Memphis, Tennessee, are testing their ability to safeguard abortion access despite state bans against the procedure.
One key approach? City leaders urge local law enforcement to de-prioritize investigations into potential abortion crimes.
Why We Wrote This
As decisions about the right to abortion return to states, cities are testing their limited leverage against abortion laws.
In doing so, it’s important to distinguish between “never” and “not now,” says Roderick Hills, professor of law at New York University School of Law.
“When you say never, you’re effectively nullifying a statute, and no executive official has the power to nullify a statute,” he says. With “not now,” on the other hand, “you’re simply saying you’ll enforce that statute when you get around to it.” (Think jaywalking.)
While this strategy is largely in use on the left, some red cities are employing it, too.
In New Mexico, where abortion is legal, the Republican commissioners of Otero County approved a measure declaring it a “sanctuary for life.” Alamogordo, a city within that county, passed a similar resolution.
On both sides, the resistance is somewhat symbolic. Just as cities cannot ignore statewide bans and authorize abortions, Alamogordo’s sanctuary status does not prevent residents from accessing an abortion so long as the practice is legal in the state.
Amid the mudslide of legal questions set off by the end of Roe v. Wade is the role of local resistance. With the right to abortion once again left to states, officials in more than a dozen cities are testing their limited leverage to safeguard abortion access. While local governments generally cannot refuse to enforce state laws like abortion bans, legal experts say, some are declining to assist in the prosecution of people who violate the bans.
Some blue city leaders in red states frame their pushback – however symbolic – as a political responsibility to constituents.
“Local officials must now do whatever we can to protect the women in our communities,” Democratic Cincinnati Mayor Aftab Pureval said in June. “It is not my job to make it easier for the state legislature and the governor to drag women in Ohio back to the ’50s and strip their rights. It’s my job to make that harder.”
Why We Wrote This
As decisions about the right to abortion return to states, cities are testing their limited leverage against abortion laws.
Republican leaders, meanwhile, see political opponents going rogue.
In Louisiana, “nothing in the statutes, the City Charter, or the State Constitution permits these officials to blatantly ignore State law, conspire not to enforce it, and violate their oaths of office in this manner,” stated Attorney General Jeff Landry last month. The Republican called for pausing funds to New Orleans for “defiance” of state abortion laws.
Many conservatives argue that, given deep divisions around abortion that vary regionally, the Supreme Court shouldn’t “impose a one-size-fits-all regime on the entire nation,” says Roderick Hills, professor of law at New York University School of Law.
Extend that logic further, he adds, and “a blue city in a red state can make exactly the same complaint” against state abortion bans.
What are cities enacting?
A few patterns of pushback are emerging, with nuances specific to the jurisdiction.
Boise, Idaho; New Orleans; Memphis, Tennessee; and Austin, Texas, among others, have approved resolutions that urge de-prioritizing law enforcement investigations into potential abortion crimes.
The Austin City Council in July approved the Guarding the Right to Abortion Care for Everyone Act, known as the GRACE Act, which limits the use of city funds to catalog and investigate abortion, and calls for “the lowest priority for enforcement” (except in cases of coercion, criminal negligence, or evidence of other crimes). Several other cities in Texas, where abortion is banned, have approved or considered similar measures.
“In a state like Texas, where the state government is openly hostile towards necessary medical care, we must fight with everything we have to avoid being complicit in the violation of our constituents’ rights,” Jenna Hanes, a spokesperson for Council member José “Chito” Vela, the lead sponsor of the Austin resolution, said in a statement.
Inspired by a 2020 measure limiting the use of city and police resources to prosecute personal possession of marijuana, the GRACE Act “is an entirely legal exercise of our city’s right to discretion when it comes to prioritizing the public safety matters that our residents consider to be important,” Ms. Hanes wrote.
But in the eyes of Rebecca Parma, senior legislative associate at anti-abortion Texas Right to Life, Austin’s City Council is “trying to flout state law.”
That’s why Texas Right to Life will push to expand private enforcement strategies, says Ms. Parma. In addition to Texas’ current abortion ban, Senate Bill 8, or the Texas Heartbeat Act, allows private citizens to sue people suspected of performing, aiding, or abetting abortion. Ms. Parma hopes similar enforcement mechanisms will be added to other Texas abortion laws, like one that limits access to medication abortion.
“We can have all the criminal penalties we want on the books,” she says. However, “those penalties are limited if we have lawless district attorneys.”
Separate from assigning a low priority to enforcement of abortion-related pursuits, another strategy has emerged in Cincinnati and other cities, where officials are exploring ways to cover expenses for public employees seeking abortion.
And in St. Louis, Democratic Mayor Tishaura Jones signed a bill that directs $1.5 million in American Rescue Plan Act dollars toward a new “reproductive equity fund” that could be used by St. Louisans beyond city employees. The funding would, in part, cover “logistical support” costs like travel but not fund abortion procedures. Republican Attorney General Eric Schmitt of Missouri, where abortion is illegal, has sued the city, alleging violation of state law.
Meanwhile, dozens of elected prosecutors have said they are declining “to criminalize reproductive health decisions ... and [will] refrain from prosecuting those who seek, provide, or support abortions,” signing a June letter from the progressive Fair and Just Prosecution network.
Republican Gov. Ron DeSantis of Florida, where abortion is banned after 15 weeks, has suspended State Attorney Andrew Warren, who signed the letter and had joined a similar pledge supporting gender-affirming health care last year.
The governor’s executive order cites the Democrat’s “neglect of duty” and “incompetence.”
Mr. Warren, who was elected by Hillsborough County voters, is suing the governor in federal court. The Florida Constitution offers narrow grounds for an elected official to be removed from office, he contends.
In a video, Mr. Warren condemned what he sees as an undemocratic move, adding, “DeSantis is trying to take away my job – for doing my job.”
How viable are these strategies?
The catch: Cities are limited in their ability to defy state law, say legal experts. And some states significantly limit the level of nonenforcement that lower jurisdictions can exercise, Politico reports.
When considering how executive officials practice discretion, says Professor Hills, it’s important to distinguish between “never” and “not now.”
“When you say never, you’re effectively nullifying a statute, and no executive official has the power to nullify a statute,” he says. With “not now,” on the other hand, “you’re simply saying you’ll enforce that statute when you get around to it.” (Think jaywalking, for example.)
Proposals for using public funds to pay for abortion-related expenses have also drawn scrutiny. However, unless a state puts limitations on how taxpayer dollars can be used, cities “would be able to provide a travel benefit pursuant to a bona fide employee benefit plan,” says Ron Kramer, a labor and employment lawyer at Seyfarth Shaw LLP in Chicago.
“The Hyde Amendment prevented the use of federal funding for abortion purposes,” he says. “I don’t see why a state couldn’t do something similar.”
What precedent is there for these kinds of local tactics?
These political strategies aren’t new, but rather an ongoing “arms race ... between the right and the left,” says Professor Hills.
Some county sheriffs have vowed not to enforce state gun regulations, for instance. And throughout the pandemic, cities and states have clashed over who has the power to enforce COVID-19 mandates. For several years, resistance to U.S. immigration policies has earned liberal cities like New York and San Francisco “sanctuary” status, typically meaning they’ve curbed cooperation with federal authorities on immigration matters.
The abortion debate is repurposing this “sanctuary” moniker – and not just on the left.
In New Mexico, where abortion is legal, the Republican commissioners of Otero County approved a measure declaring it a “sanctuary for life.” Alamogordo, a city within that county, followed suit with its own resolution this month that declared it a “sanctuary for the unborn.”
However, just as cities cannot ignore statewide bans and authorize abortions, Alamogordo’s sanctuary status does not prevent residents from accessing an abortion so long as the practice is legal in the state, the ACLU of New Mexico pointed out in advance of the city’s vote.
