WASHINGTON — When the City Commission in Clovis, N.M., scheduled a discussion of a proposal aimed at restricting abortion access within the community, attendance at the meeting was expected to be so high the mayor announced he’d give city residents preference to get in the room.
So the out-of-state antiabortion activist whose organization was backing the ordinance, Mark Lee Dickson, didn’t take any chances. A Texas resident, Dickson leased a property for a few days, he told the Globe, so he could say that he was a resident when he spoke at the meeting.
City officials have since tabled the proposal, which effectively targeted medication abortions by mail as well as any clinic that may want to set up there. But Clovis is not a one-off in considering such local ordinances.
Dickson, founder of Sanctuary Cities for the Unborn, is among a group of activists who, in the wake of the Supreme Court decision overturning Roe v. Wade, are ramping up the fight to restrict abortion rights at the ground level. They’re pushing similar local-level regulations in municipalities across the country, with Dickson’s group claiming dozens of successful efforts, including many in his home state.
A similar measure in Hobbs, N.M., was adopted last month, while Pueblo, Colo., is considering one in response to an abortion provider who is planning to set up there. That same provider has a location in Bellevue, Neb., one of multiple places in that state where similar ordinances have cropped up, several of which have passed.
In Prinsburg, Minn., a proposal targeting medication abortions was being considered until the City Council dropped it last week. The list goes on. The proposals vary slightly from place to place but most include language aimed at prohibiting people or clinics from receiving pills for medication abortion or abortion supplies by mail, as well as wording to encourage private citizens to sue abortion providers. They often have the same cut-and-paste language, and backers appear to often focus on communities, such as Clovis, that don’t have abortion clinics at all.
This is the latest battleground for abortion rights in a political landscape now fractured by the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization that ended a nearly 50-year federal right to abortion. Though local antiabortion proposals are not new, the Dobbs ruling has emboldened their backers to press for them even in states that have abortion protections in place.
“I look at things one city at a time,” said Dickson, who was also involved early on a municipal ordinance in a Texas community that opened the door to that state’s law that effectively bans abortions after six weeks of gestation. “Those cities that do not want abortion in their ZIP code, there’s something they can do. The Supreme Court of the United States, in the Dobbs decision, they were clear that this is to be returned to the people and their elected representatives.”
The post-Roe era has also opened up a new frontier of legal questions, and the local measures being considered around the country would likely become prime targets for challenges from the abortion rights side.
“One of the things left unanswered by Dobbs … is what do you do in a state that under the state’s constitution says abortion is legal?” said Carol Sanger, a law professor at Columbia with an emphasis on reproductive rights. “Those are all going to have to get litigated. ...The list of what’s not decided is bigger than the list of what is decided.”
Many academics and legal experts such as Sanger believe that in states where abortion access is protected by constitution or statute, it would be difficult to argue that an ordinance could legally trump state law. The abortion opponents say they are not doing anything extraordinary beyond reinforcing existing federal statutes that prohibit the mailing of any materials that facilitate abortions.
But David Cohen, a professor of law at Drexel University who focuses on constitutional law and gender issues, calls that argument a “red herring.”
“The federal government has the authority to pass laws that take precedence over states, but city laws still have to follow state law, regardless of whether they’re basing it on federal or not,” Cohen said. “If the state says that in our state we protect the right to abortion, then all cities have to do that, too.”
He added the statutes these ordinances point to have been “rendered toothless since the 1930s by federal courts that have interpreted to not apply to lawful contraception and lawful abortion.”
Elected Democrats in states where abortion is legal have responded forcefully to these ordinances. In Minnesota, for example, the state’s attorney general, Keith Ellison, warned city officials in the community of Prinsburg that the measure targeting mailed abortion materials they were considering would be unconstitutional.
In New Mexico, Governor Michelle Lujan Grisham put out a statement condemning the vote in Hobbs. And in Colorado, a spokesperson for Attorney General Phil Weiser told The Pueblo Chieftain his office was monitoring the situation and that Weiser is “committed to defending the Reproductive Health Equity Act and challenging any local ordinance that violates the law.”
Health care providers have also opposed these ordinances.
Also of concern, say some abortion access advocates, is that the ordinances are creating a false sense that there’s more support for abortion restrictions than there really is.
“This is the continuation of a strategy that we’ve seen from antiabortion activists starting about two years ago … first in Texas and then in other states,” Madeline Gomez, policy council for Planned Parenthood Federation of America, said in a statement. “Passing these ordinances in small towns with conservative city councils ... creates a false narrative that there is momentum towards banning abortion.”
In addition to Dickson, Jonathan Mitchell, the legal architect behind Texas’s law that effectively bans abortions after six weeks, is another key player in the efforts to pass local restrictions. At the council meeting in Clovis, N.M., where Dickson spoke as a (temporary) resident, Mitchell called in to answer questions from the City Commission. Mitchell was unavailable for an interview.
In fact, Dickson says he offers Mitchell to provide legal services at no cost to any city where he pushes a restriction, in response to any resident’s concerns about the potential legal risk these municipalities open themselves to. The cost of litigation, the opponents say, could come at great taxpayer expense.
“If the city passes the ordinance which I have given them, then my attorney, Jonathan F. Mitchell is willing to represent the city at no cost to the city or taxpayers,” Dickson said in an e-mail.
But that has apparently failed to convince some places. In Prinsburg, Minn., the City Council denied a request to consider the abortion proposal unanimously. In a statement posted on the city website, the council said it took into consideration the attorney general’s warning that Prinsburg did not have legal authority to pursue such a measure.
Abortion rights advocates note the measures targeting mailed materials can have widespread consequences.
“As you see this pop up in blue states, we see these ordinances in cities that don’t have abortion providers. But having like a brick-and-mortar clinic is not the only way to provide abortion care,” said Emily Bisek, spokesperson for Planned Parenthood North Central States. “If the city ordinances are allowed to stand, they could have implications on the health care that people in that region could access.”