The Texas Legislature Can and Must Respond to Texas Cities Defying Pro-life Laws
Bioethics in Law & Culture Winter 2023 vol. 6 issue 1
Mary Elizabeth Castle
June 24, 2022, marked a new beginning for laws to protect the life of preborn babies all across the United States. Texas was special in that the state had a preview of a post-Roe society for nine months with the Texas Heartbeat Law taking effect on September 1, 2021. Pro-abortion groups immediately launched lawsuits once the Texas Heartbeat Law was passed. All legal challenges to the Texas Heartbeat Law were unsuccessful and the United States Supreme Court ruled that the Law is constitutional. Texans were proud to have a law that saved approximately 50,000 babies’ lives by June 2022. Nevertheless, a few large metropolitan areas in Texas are led by local governments that choose to rebel against pro-life popular opinion. When Roe v. Wade was overturned by the Dobbs v. Jackson decision, a group of cities in Texas – led by the historically pro-abortion Austin, Texas –decided to pass city ordinances that would defy the pre-Roe statutes that would now go into effect. The model ordinance that was passed in several Texas cities was known as the GRACE Act, which stood for Guarding the Right to Abortion Care for Everyone.
This paper will observe the ordinances that were passed and the success rates in the cities where they were introduced, a look at whether prosecutorial discretion is being abused when district attorneys refuse to prosecute under the pre-Roe statute, how Texas law enforcement is reacting to the pre-Roe statute requirements, and what the Texas Legislature should consider in the upcoming legislative session to address the GRACE Act and other pro-abortion ordinances.
Major Texas Cities Choose GRACE Act to Defy State’s Pro-life Status
Austin City Council scheduled a special meeting on “reproductive health issues” on July 21, 2022, which was only a month after the Dobbs decision. Every year since at least 2019, the Austin City Council has drafted policies to defy pro-life laws that are passed in the Texas Legislative Session. In 2019, Austin City Council notably defied the law known as “SB22” that would prohibit taxpayer funds from going to abortion providers. The inspiration for the law was a longstanding contract the City of Austin had with a Planned Parenthood building on the Eastside of Austin. The contract was a sweetheart deal where the Eastside Planned Parenthood, located in one of Austin’s most economically disadvantaged neighborhoods and across from a historically black college (Huston-Tilloston University), would only have to pay $1 a year in rent to the city. The law did not immediately stop this particular contract as it was set to a term of 20 years; however, Planned Parenthood was effectively prohibited from making new government contracts such as their contract with local school districts for sex education materials. Austin City Council creatively decided that they would find a loophole in order to circumvent the specific language of the law and only fund abortion-related services such as transportation costs, hotel rooms, and even gift baskets for women seeking an abortion. The initial cost voted by the city in 2019 was $150,000 and that amount has increased every year since. The latest amount the city has awarded to the program to help with abortion-related services was $250,000. Similarly, the Austin City Council passed a resolution in 2021 stating that they would not acknowledge the Texas Heartbeat Law.
So, it was not surprising that the Austin City Council would pass a series of resolutions and ordinances in disagreement with the Texas Legislature. What was unique about the passage of the GRACE Act was its direct call to not adhere to the Human Life Protection Act, and the efforts to pass identical ordinances in multiple cities in Texas. The GRACE Act, authored by councilmember Chito Vela, was presented as a way to “decriminalize” abortion. The idea that abortion is “decriminalized” in Texas comes from the fact that the Human Life Protection Act makes the procurement of an abortion a second-degree felony and also punishable by a civil penalty of up to $100,000. Thus, the GRACE Act would achieve “decriminalization” by ensuring city funds would not be used to store or catalog information about an abortion, report to a governmental agency that an abortion has taken place, or collect information on whether an abortion has occurred. The ultimate goal of the proposed policy is to make sure that city attorneys and other law enforcement personnel put prosecuting abortion as the lowest priority for law enforcement.
Although the GRACE Act is called an “act” which is commonly understood as a law that is passed, the GRACE ACT is merely a resolution. The Austin City Council further explained in a Facts Answers and Questions (FAQ) document that the resolution is simply a policy recommendation because a city council cannot “dictate to city employees how to handle a criminal case”. The city can merely recommend how city funds are used. Austin City Council’s history of pro-abortion resolutions indicates that the city manager and even the city attorneys have no problem following the city council’s recommendations. The drafters of the GRACE Act FAQ document attempt to walk a thin line by claiming that although the GRACE Act seeks to protect abortionists and abortion seekers, the act of abortion is still illegal. In an attempt to indemnify themselves, the City of Austin creates exceptions to the policy that would allow abortions to be criminally investigated if the abortions are coerced, forced, or criminally negligent to the health of the mother. The City of Austin also recognized that the GRACE Act does not “protect” citizens from the Texas Heartbeat Law because of the obvious fact that the Texas Heartbeat Law has civil enforcement through lawsuits which are filed by private citizens.
The GRACE Act was met with opposition from members of the Austin pro-life community who outnumbered the testimony in favor of the GRACE Act and other abortion ordinances that day. The GRACE Act passed unanimously among the city council members present at the special meeting. (Councilwoman Kelley who has opposed pro-abortion policies in the past could not attend the meeting). The vote was followed by a press conference where members of the Austin City Council were joined by state legislators who represent the Austin area and who advocate for abortion at the Texas Capitol. Members of the city council and Mayor Steve Adler(former) applauded themselves for passing the GRACE Act but also announced that their action was part of a larger effort to pass similar policies in cities across the state of Texas. The GRACE Act was not simply another effort by the Austin City Council to ignore state law, it was actually a model policy.
The GRACE Act soon made its way to the San Antonio City Council. The GRACE Act passed by a 9-2 vote at the San Antonio City Council. The San Antonio GRACE Act added a priority for lobbying for abortion at the state and federal levels. Otherwise, the policy passed by the San Antonio City Council had very similar provisions that would deprioritize prosecution of abortion by limiting city funds to criminally investigate abortion.
The following week, the Dallas City Council considered a similar measure. The premise of the Dallas City Council measure was to establish that the City of Dallas holds a “commitment to protecting people’s right to make reproductive health decisions for themselves and their families, including abortion care”. While worded differently, the Dallas ordinance would have also deprioritized any enforcement of pro-life laws. The Council heard varying opinions during the public comment period. Policy Director Jonathan Covey from the pro-life and family organization Texas Values warned the Dallas City Council that their resolution could create legal problems:
By passing the abortion resolution, Dallas City Council put unborn lives in danger and recklessly compromised the oath law enforcement officers have taken to uphold the Constitution and laws of the State of Texas. This political posturing puts the city on shaky legal ground and potentially wastes thousands of taxpayer dollars while denying science and hurting women.
The City of Dallas was not very confident that the resolution, passed in a 13-1 vote, would be enforceable. The Dallas Police Chief testified before the council and mayor that he had no idea how the resolution would be implemented.
Other cities that have passed the GRACE Act resolution include El Paso and Denton. However, Waco is one city in Texas where the GRACE Act was unsuccessful thanks to many pro-life citizens speaking out against the ordinance. Waco City Council never officially put the GRACE Act on a council meeting agenda. Members of the group Pro Choice Waco asked the city council to follow the steps of other city councils and pass a policy that would deprioritize investigating abortions that are now illegal under the Human Life Protection Act. In response, Waco City Council member Kelly Palmer requested that the city council at least have a discussion on whether the city should adopt the GRACE Act. Members of the Waco community attended the meeting, with many of them speaking out against the GRACE Act. As a result, the idea of considering adopting such a resolution was halted. Waco Mayor Dillon Meek told the media that “the exact scope of the city’s power and functions is always up for debate, but … [do] not think the city council should weigh in on how abortion laws are enforced.” While the pro-life testimony and opposition certainly played a role in stopping the GRACE Act, it is notable that the Waco mayor realized that cities should not make policy that contradicts state law.
History of Prosecutorial Discretion
The GRACE Act is dangerous because many local district attorneys seem to have a similar attitude toward not enforcing pro-life laws like the city council members. Prosecutors refusing to enforce the Human Life Protection Act and Texas Pre-Roe statutes are the biggest barrier to making abortion completely illegal in Texas. Prosecutors, like all lawyers, swear to uphold the law. However, the reality is that not every single violation of the law is tried or criminalized by the book. Local prosecutors have a tool called “prosecutorial discretion” that gives them the ability to accept or decline criminal cases. Prosecutors use prosecutorial discretion to look at cases substantively. Local District Attorneys reject approximately a quarter of all cases. While there may be legitimate reasons why the criminal justice system allows for prosecutorial discretion, there are obviously times when this power is abused or politicized and not simply used as a tool to prudently uphold the law. It is clear that some prosecutors’ refusal to enforce the Human Life Protection Act and Texas pro-life laws is a political move.
Unfortunately, local prosecutors refusing to try cases because of their political stance is not unique to the pro-life issue. In an article titled “Discretion v. Suppression”, legal scholar Tyler Quinn Yeargin explains that over the past half a century, there has been an understanding between state governments and local prosecutors that local prosecutors will enforce legislation that states pass. However, there is a new trend in “reformer” style prosecutors being elected across the United States who have a more liberal political mindset and want to change how crimes are prosecuted. Many in the pro-life movement recognize this problem. James Bopp Jr., an attorney who serves on the board for National Right to Life, sees that many state pro-life legislators are relying too heavily on Democrat prosecutors who are refusing to enforce pro-life laws in the post-Roe era. Moreover, Bopp notes that the ineffectiveness of relying on Democrat prosecutors to enforce pro-life laws is exacerbated by the fact that most abortion clinics have moved to large urban centers and college towns where radical Democrat prosecutors are most likely to be elected. It is clear that this is likely the case in Texas, as Austin, Dallas, San Antonio, and El Paso have been considered to become more liberal, and Denton and Waco are both college towns home to the University of North Texas and Baylor University.
What is the solution for prosecutors who refuse to enforce pro-life laws? The two most apparent solutions of removing DAs or replacing them through elections seem like an easy fix, but some legal scholars are doubtful that these are the most effective strategies. According to pro-life legal scholar Jennifer Popik, removing prosecutors is rare and difficult. Popik’s research shows that the American Bar Association’s standards for removal are set high. The ABA’s rule states that a prosecutor should be circumvented when they are incapable of fulfilling duties of the office due to physical and mental incapacity or for gross deviation from professional norms. Simply relying on the strategy of electing a new prosecutor who aligns with pro-life views proves to be difficult as well. Incumbent prosecutors run unopposed in 84 percent of elections and when there is a challenger, incumbents win 18 percent of the time.
A viable solution for addressing prosecutors who refuse to enforce Texas pro-life laws is using a tool called prosecutorial suppression. Prosecutorial suppression, as the name suggests, is when the government steps in and corrects a local prosecutor’s action or inaction on a particular case. Yeargin suggests that “as more reformers are elected – especially in liberal municipalities of otherwise conservative states – laws allowing suppression may be used with increasing frequency whenever they are available”. An example of suppression working effectively is when Florida Governor Rick Scott reassigned a murder case to a neighboring county under a prosecutor who was in favor of the death penalty after the prosecutor who was assigned the case said she would not seek the death penalty in the case assigned to her or any case in the future. Governor Scott was able to issue an executive order in order to move the case out of the jurisdiction the case was originally assigned to a neighboring county prosecutor whom he knew was in favor of the death penalty. Governor Scott’s actions were taken to the Florida Supreme Court, which ruled in favor of Scott’s actions. After the Florida Supreme Court ruling, the prosecutor who at first disagreed with Florida’s laws on the death penalty decided to enforce the state’s stance on the death penalty. Texas – and even other states – could use this strategy to protect and promote lives. If a state’s laws and political opinion are to protect life, then other government officials should be able to enforce those laws.
Considering that some Texas district attorneys have taken a hard stance on refusing to enforce pro-life laws or are being persuaded by liberal city councils to do so, prosecutorial suppression may be a winning strategy. Prosecutorial suppression is commonly seen as either a state official serving in a de facto supervisory role and directing a prosecutor to take action that he would like him to take, or a state official removing the prosecutor from a case and reassigning it. There are five types of prosecutorial suppression:
A state official can supersede a local prosecutor in all cases
A state can supersede when it is in the public’s best interest or in the best interest of justice
A state official can intervene when requested to do so by another state official or members of the public
A state official can supersede when a prosecutor refuses to enforce the law
A state official can supersede with the approval of a court
These different types of state involvement through suppression could certainly help Texas enforce its pro-life laws. The first type of suppression that allows a state official to supersede a local prosecutor in all cases would be helpful, but may not be necessary. In states where this type of prosecutorial suppression is an option, the state officials handle all criminal prosecutions and the state serves as a supervisor of independently elected prosecutors. An option that most Texans would like to see be used because of our strong pro-life governor and attorney general, would be for the state to supersede local prosecutors who refuse to enforce the law. Currently, only California, Idaho, Pennsylvania, and Tennessee allow suppression when a district attorney refuses to act. Yeargin notes that states can consider using a combination of the five models of prosecutorial suppression.
How Texas Has Handled the Enforcement of Pro-life Laws
While the local city ordinances calling for the de-prioritization of enforcing Texas pro-life laws is discouraging for the pro-life movement, there is hope that our pro-life laws can still be enforced. Texas can even look to pre-Roe history to see how our courts have handled pro-life laws. One of the first recorded cases of enforcing Texas pro-life laws is a case from 1908 called Jackson v. State, 55 Tex. Crim. 79 (1908). This case involved a doctor who violated article 641 of the existing Texas Penal Code by performing an abortion on a woman in Cleburne, Texas, which resulted in her death. Dr. Jackson attempted to argue that the abortion statute was “unconstitutional and void in that it does not sufficiently define or describe the offense of abortion”. The Texas Criminal Court of Appeals disagreed with Dr. Jackson and upheld his conviction for violating Texas pro-life law. Texas can have confidence in the fact that its pre-Roe statutes were effectively capable of being enforced over 100 years ago.
There have not been many recorded instances since the Dobbs decision of doctors being prosecuted under Texas pro-life laws in the few months since its enactment. But there have been two cases to date where there has been an attempt to prosecute individuals under the Texas pro-life laws. One case involves a man indicted in Harris County for sneaking abortion pills into his estranged wife’s beverages to abort their child. Mason Herring was indicted by a grand jury in Harris county with an offense of assaulting a pregnant woman. Herring was not charged under the Human Life Protection Act, however. Nonetheless, Herring’s indictment along with the facts of the case indicate there is some respect for the life of the preborn in the decision-making. The facts of the case are that approximately six months after the Texas Heartbeat Law took effect, most likely before the Dobbs ruling, Herring told his wife to drink more water after he found out that she was pregnant while they were in the process of legal marital separation. After drinking a cup of water with a breakfast Herring made for his wife, the wife experienced heavy bleeding and severe pain, resulting in her going to the emergency room. After the wife began to suspect something was wrong with the drinks her husband was giving her, she found empty boxes of the Mexican-manufactured version of Misoprostol in trash bags. Police found the abortion drug in samples of beverages that the wife had saved for evidence. Herring is currently out on bond for $30,000 and was set to appear in court in December 2022.
Another example of an attempt by law enforcement to adhere to the laws protecting preborn babies happened in the Rio Grande Valley of Texas. The attempt to enforce the Human Life Protection Act in the arrest of a woman in Starr County who self-imposed an abortion was not accurate, but it proves that some counties are willing to recognize and apply the state’s laws on life. A woman in Starr County, Texas was arrested for a self-induced abortion. The Human Life Protection Act is very carefully drafted to avoid punishing the woman seeking the abortion, the mother of the child. The construction clause of the Human Life Protection Act reads, “This chapter may not be construed to authorize the imposition of criminal, civil, or administrative liability or penalties on a pregnant female on whom an abortion is performed, induced, or attempted”. The Act more specifically punishes the doctor or person administrating the abortion. Thus, the woman was released from jail. The case in Starr County presents an interesting legal scenario where the mother is also the procurer. Despite the concern over a woman being arrested for attempting to abort her own child, Starr County handled the situation correctly by applying the current law and using the court of law to determine what the law says to determine whether the woman was guilty. Some may argue that the woman should never have been arrested because they believe that the law is clear about not charging the pregnant human female. However, the best way to move forward legally in making sure our pro-life laws can be effective is to have cases tried so that we may have legal precedent and guidance on how to enforce these laws statewide.
How the Texas Legislature Can Address the Problem
The 88th Texas Legislative Session convened on January 10. Even before the session began, legislators, especially those with legal backgrounds, began thinking of ways to counter local district attorneys’ refusal to enforce Texas pro-life laws. The general strategies for addressing the issue have been discussed amongst pro-life leaders and legislators. The authors of specific legislation will be revealed later in the session. The strategies being discussed are as follows.
The first strategy is to hold district attorneys accountable for not enforcing laws, or as previously discussed in this paper, abusing prosecutorial discretion. This strategy comes from legislators who have a general concern that prosecutors in Texas are increasingly refusing to adhere to laws that they politically disagree with. The two apparent forms of punishment would be to remove a District Attorney or have that prosecutor face other punishment from either the American Bar Association or the Texas Board of Law Examiners. But as Jennifer Popik explained, the bar is set high for removal. The American Bar Association has a set of rules for prosecutors, but these rules are merely described as aspirational guidance. The ABA rules admonish against improper bias in rule 3-1.6 for prosecutors stating that “a prosecutor should not use other improper considerations such as partisan or political or personal considerations in exercising prosecutorial discretion,” Clearly, prosecutors refusing to enforce Texas pro-life laws are defying rule 3-1.6 because of their political stance and personal ideas on abortion. Many legislators are choosing a direct approach to punish prosecutors for the specific offense of refusing to enforce pro-life laws. But with no direct enforcement mechanism for the ABA guidance, it will be somewhat difficult to address how these prosecutors should be punished through state legislation.
An additional idea for legislation being discussed is to assign pro-life law cases that are not being prioritized to adjacent counties. This strategy worked for Governor Rick Scott when a local prosecutor disagreed with the state’s law, as discussed earlier in this paper. Assigning pro-life cases to neighboring counties could prove effective since Texas has 254 counties. So far, the GRACE Act has only been knowingly passed in approximately 5 cities in Texas. There is a greater chance that a pro-life law case could be tried by a neighboring district attorney who is either pro-life or simply willing to try the case without political bias in favor of abortion.
One other option being discussed by legislators is to give the Texas Attorney General the power to prosecute crimes. A few states already have laws that allow for this type of prosecutorial suppression, but Texas does not currently have this ability. Granting the Texas Attorney General power to prosecute violations of Texas pro-life laws would be a winning strategy. Texas Attorney General Ken Paxton has historically supported pro-life legislation and served as counsel for the state while defending the Texas Heartbeat Law. Texas would be able to depend on the life of the preborn being protected under the Human Life Protection Act if the Texas Attorney General were given the power to supersede local district attorneys. However, it will be important for the legislator drafting the bill to be specific about the type of prosecutorial suppression the Texas Attorney General should have. There could be interest in giving the Texas Attorney General the overall right to suppress local prosecutors, but the main focus for Texas legislators should be to give the attorney general specific power to intervene when a local prosecutor refuses to enforce Texas pro-life laws.
Defending Texas Pro-life Laws by Rejecting Abortion Bills
The large majority of members in the Texas Legislature are pro-life and that is why our state has had much success in passing the Texas Heartbeat Law and the Human Life Protection Act. But abortion-minded Texas representatives and senators still exist. In addition to passing good legislation to defend against abortion-minded city employees, the pro-life Texas legislature must also defend against bills by members who seek to undo our Texas pro-life laws.
Some abortion-minded Texas legislators have been filing bills since December 2022 to counter our Texas pro-life laws. Texas House member James Talarico (HB 819) and Texas Senators Nathan Johnson (HB 79) and Sarah Eckhardt (SB 227) have filed legislation that seeks to repeal Texas pro-life laws. Representative Talarico has also filed a house resolution, HJR 56, that would prohibit the state from passing pro-life laws in the future. Representative Vikki Goodwin has filed HJR 62 that declares every person in the state has a right to reproductive autonomy.
Other state legislators have filed bills that would create exceptions to our pro-life laws. Senator Carol Alvarado (SB 122) and Representative Donna Howard (HB 979) have filed a bill that would create an exception for “sexual assault” and prohibited sexual conduct under 25.02 of the Texas Penal Code, commonly known as incest.
The filing of these bills suggests that the efforts of pro-life legislators must be twofold. In addition to filing bills to hold local elected officials accountable to our state’s pro-life laws, Texas’ pro-life legislators must also stop bills filed by their colleagues that are trying to undo Texas' successful pro-life laws. However, these abortion-focused bills have a small chance of making it to a floor vote by either chamber and have an even smaller chance of passing. Even if such a bill were to pass it would be vetoed by the governor who has a proven track record of being pro-life.
Texas can be proud of being ready for the overturning of Roe v. Wade by having the Human Life Protection Act ready to be enacted and for having the experience of being a pro-life state for almost a year under the Texas Heartbeat Act. The city ordinances defying Texas pro-life laws may seem like a setback tour success. But, there are legal tools that our state can use to make sure abortion-minded local officials are not the final decision-makers. The best solution appears to be for the Texas Legislature to pass legislation that uses a prosecutorial suppression method suitable for enforcing pro-life laws. The legislature could choose to punish local prosecutors, but as this paper discusses, it may be less likely that these officials can be removed from office. History proves that pro-life laws can be enforced. It is vitally important that Texas quickly address the political loopholes of local elected officials so that our state can continue to save babies.
Keywords: Pro-life, Texas, Prosecutorial Discretion, Prosecutorial Suppression, Texas Legislature
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