Day 6

Texas cities are directing police to not enforce state abortion laws. Will it work?

Local governments in two Texas cities have voted in favour of directing police to depriortize the enforcement of abortion-related crimes under state law. Advocates say the approach would effectively decriminalize abortions, but experts say it won't protect from state-level enforcement.

Advocates say the resolutions will effectively 'decriminalize' abortion in Austin, Denton

An abortion rights protester marches through downtown Austin, Texas, following the U.S. Supreme Court's decision to overturn Roe v. Wade on June 24. On Thursday, Austin city council unanimously voted in favour of a resolution that would direct police to deprioritize enforcement of state abortion legislation. (Sara Diggins/Austin American-Statesman/The Associated Press)

Local governments in two Texas cities have voted in favour of directing police to depriortize the enforcement of abortion-related crimes under state law.

Advocates for the resolutions, passed unanimously on Thursday in Austin and late last month in a 4-3 vote at Denton city council, say the moves would effectively decriminalize abortion within city limits. A similar motion in El Paso, Texas, failed earlier this month.

"We don't want any real effort and resources put into, you know, tracking down these alleged abortion crimes," said José (Chito) Vela, council member for District 4 in Austin, who proposed the motion.

City officials responsible for implementing policy are now expected to direct local law enforcement to investigate other crimes, like vandalism, before they investigate crimes related to state abortion bans. 

However, the resolutions do not legalize abortion in the cities or provide protection from state-level enforcement.

Parts of Texas have been grappling with how to protect access to abortion services in the wake of the U.S. Supreme Court's decision to overturn Roe v. Wade, the landmark 1973 decision that made abortion a legal right in the United States.

A protest sign reads 'Make Abortion Safe Again!'
A so-called trigger law is expected to come into effect in Texas next month. That law, a response to the overturning of Roe v. Wade, would ban all abortions and create severe penalties for abortion providers. (Eric Gay/The Associated Press)

Following the federal court's decision last month, Texas's highest court ruled that a law from 1925 banning abortion could be once again enforced. In a tweet, Texas Attorney General Ken Paxton called it a "100 per cent good law."

A separate "trigger law" passed last year that would ban abortion from the moment of fertilization and open abortion providers up to the possibility of life in prison and $100,000 in penalties is expected to come into effect next month. 

"It's just this absurdly political criminalization of abortion," Vela said.

Since the overturning of Roe v. Wade, many abortion providers in Texas have closed shop or stopped offering the procedure. 

Whole Woman's Health, which operated four clinics in Texas, announced this month it would move operations to a New Mexico border city "to provide first and second trimester abortions."

"Women do not have the ability right now in parts of our state — I would say a majority of our state — to seek private health-care decisions with their health-care provider," said Julie Oliver, executive director of political advocacy group Ground Game Texas.

Her organization's goal is to bring resolutions like Austin council member Vela's to other cities in Texas.

LISTEN | Julie Oliver on resolutions to deprioritize enforcement of abortion laws:

Still too risky for providers

Austin and Denton councils' resolutions could provide some peace of mind for residents living there who seek abortion services, said Elizabeth Sepper, a law professor at the University of Texas at Austin.

"If all of the activity is undertaken, say, within the confines of Austin or, say, Travis County, where prosecutors agree not to prosecute, police agree not to perform surveillance or investigate … I think it does provide some measure of legal reassurance," she said.

Travis County District Attorney José Garza, who oversees enforcement in Austin, has already indicated he will not prosecute people under Texas state law banning abortions.

Texas Attorney General Ken Paxton, centre, has pushed to restrict abortion access in the state. (Jacquelyn Martin/The Associated Press)

Still, the resolutions will have "limited effectiveness" for those who provide abortions, Sepper said, and Vela admits that it's unlikely providers will return to Austin under the current state laws.

Without the protection of Roe v. Wade, and facing the threat of Texas's 1925 law and Senate Bill 8 (SB-8) — known as the Texas Heartbeat Act, which passed last year — there has been a chill on abortion access in the state.

SB-8 bans abortions after approximately six weeks and allows for civil lawsuits, providing any private citizen the ability to sue abortion providers for up to $10,000 US plus administration fees. It has been referred to as a "bounty law."

"Pre-Roe law did not impose really stiff criminal penalties — which isn't to say that several years in prison isn't enough to deter people — but now we're talking about [the] possibility of life imprisonment, mandatory revocation of medical licensure, and $100,000 in criminal fines," Sepper said.

Attorney general pushes back on federal intervention

Texas Gov. Greg Abbott and Paxton, the attorney general, have repeatedly signalled their commitment to restricting abortion access in the state.

The Biden administration issued guidance last week indicating federal law requires doctors to provide abortions in emergency circumstances regardless of state laws. Hospitals that do not comply risk losing their Medicare and Medicaid status.

Days later, Paxton filed a lawsuit challenging the White House's guidance, saying it "forces hospitals and doctors to commit crimes and risk their licensure under Texas law." 

WATCH | Biden aims to safeguard some reproductive rights with executive order:

Biden tries to safeguard reproductive rights with executive order

3 months ago
Duration 2:13
U.S. President Joe Biden has signed an executive order to safeguard some reproductive rights across the country. It does not legalize abortion, but instead improves access to emergency contraception, legal services and pills that can induce abortion in early pregnancy stages.

Asked whether Paxton could do the same for Austin and Denton city council motions, Sepper said it's possible.

"There's a long history in Texas of the state taking away power and authority for municipalities and counties," she said. "So I would not be surprised if there's some legislative action in response to attempts by municipalities to safeguard some measure of abortion access or freedom from criminal sanction."

That could mean the loss of state funding for services like police.

CBC requested comment from the Office of the Attorney General in Texas about how it might respond to the local resolutions but did not hear back before publication.

Oliver says she doesn't believe the local city council motions amount to breaking the law — but are rather a conscious choice of what laws to enforce.

And while she concedes it's not a perfect solution, she hopes other cities will adopt measures similar to Austin and Denton.

"For the cities that don't have a progressive city council, or the city council is staying silent on this issue, if the city has the power of the initiative, we can bring it to voters to decriminalize abortion in their cities and towns," she said.

ABOUT THE AUTHOR

Jason Vermes

Journalist

Jason Vermes is a writer and editor for CBC Radio Digital, originally from Nova Scotia and currently based in Toronto. He frequently covers topics related to the LGBTQ community and previously reported on disability and accessibility. He has also worked as an online writer and producer for CBC Radio Day 6 and Cross Country Checkup. You can reach him at jason.vermes@cbc.ca.

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