On Sept. 9, the City of Omaha, Texas, unanimously passed an ordinance outlawing abortion within city limits, making Omaha the second city in the nation to do so, behind Waskom, Texas. The City of Naples quickly followed suit that same day in a 5-1 vote.
“To protect the health and welfare of all residents within the City of Omaha,” the ordinance reads, “including the unborn and pregnant women, the City Council has found it necessary to outlaw human abortion within the city limits.”
The text states that unborn babies “are the most innocent among us and deserve equal protection under the law as any other member of our American posterity as defined by the United States Constitution,” also asserting that “there is no language anywhere in the Constitution that even remotely suggests that abortion is a constitutional right.”
Both Men and Women Voted to Preserve Human Life
A majority-female Omaha City Council passed the ordinance on the heels of criticism that the all-white, all-male Waskom City Council was curtailing “the reproductive freedom” of a demographic that didn’t have a seat at the table.
“I hate abortion, and I don’t want to see an abortion clinic in our city,” Naples Councilwoman Sally Buford told the director of Right to Life of East Texas Mark Lee Dickson, who led the initiatives in Waskom, Omaha, and Naples. Naples Mayor Pro-Tem Jacob Wilson wrote in a Facebook comment relating to the decision that he was “truly proud to be the one to make the motion to pass this [bill].”
The Naples City Council is made up of four men and two women. The only opposition to the ordinance came from Councilman Danny Mills, an older, white male. “I just couldn’t see that we could tie up a mayor and cops tending to somebody else’s business,” Mills told Texarkana News.
Both Omaha and Naples are in Morris County in northeast Texas. Morris County voted overwhelmingly Republican in the 2016 presidential election, 69.3 percent to 28.7 percent Democrat.
Although national voters, who overwhelmingly support access to at least first-trimester abortions, might consider the ordinances radical, the city councils seem to have the support of their constituencies. During the 2018 Republican Party primary, voters had the opportunity to vote on Proposition 7, which gave voters the chance to voice their opinion if they were “in favor” of or “against” the following statement: “I believe abortion should be abolished in Texas.”
Out of 1,244 votes in Morris County, more than 75 percent were in favor of the statement.
The Ordinances Properly Define Abortion
The newly passed city ordinances define “surgical or chemical abortion” as the “purposeful and intentional ending of a human life,” classifying it as “murder ‘with malice aforethought.’”
“Rulings or opinions from the Supreme Court that purport to establish or enforce a ‘constitutional right’ to abort a unborn child, are declared to be unconstitutional usurpations of judicial power,” according to the ordinance, and are “declared to be null and void.”
The near-identical Naples and Omaha ordinances later state, however, that the public enforcement part of the ordinances cannot go into effect “unless and until the Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992), and permits states and municipalities to once again enforce abortion prohibitions.”
Although it would appear this clause renders the whole ordinance moot, Dickson says there’s no statute of limitations on this public act of enforcement: “This allows for those who break this law to be subject to these penalties at a later date — which is no laughing matter.”
“Do not be mistaken,” Dickson continued via electronic correspondence, “abortion really is outlawed in every city that passes these ordinances. If someone performs an abortion in a city that has outlawed abortion they have broken the law and there are both future (public enforcement) and immediate (private enforcement) consequences.”
City Councils Demonstrate Farsightedness on Abortion
The Omaha vote was driven in part by Mayor Ernest Pewitt’s concern that an abortion business could move into the city and set up shop in an abandoned clinic, unless the city council passed a law to prevent it. The nearby city of Naples also has an abandoned clinic which could have been converted into an abortion facility.
The ordinances outlaw abortion within the city limits and ban the sale and distribution of “emergency contraception.” They define “emergency contraception” as “any chemical or substance which is manufactured for the express purpose of use after unprotected sexual intercourse and which may function as an abortifacient to end the life of an unborn child by preventing implantation of the zygote in the uterine lining. This definition includes Ella, Plan B, Next Choice One Dose, and My Way.”
Due to their inclusion of chemical abortion, these ordinances are more prescient than most other pro-life legislation, classifying “any remote personnel who instruct abortive women to perform self-abortions at home” as abortionists. Organizations dedicated to providing women access to and guidance for taking “DIY” abortion drugs are growing in popularity, particularly in areas and countries where abortions are banned or access is severely restricted. Without outlawing such efforts, many first-trimester abortions would continue undetected with the aid and guidance of “DIY” abortion activists acting with impunity.
The documents also named specific abortion-facilitating organizations and declared them to be criminal, including Planned Parenthood, Jane’s Due Process, The Afiya Center, The Lilith Fund for Reproductive Equity, NARAL Pro-Choice Texas, National Latina Institute for Reproductive Health, and others.
Ordinances Include a ‘Life of the Mother’ Exception
The ordinance is also rare in its denouncement of “judicial usurpation” by the Supreme Court, although it simultaneously declines to enforce the laws until court precedent is overturned. In addition to these robust statements, the ordinances provide a “private enforcement mechanism” by which violators of the ordinance can be held liable in tort to any surviving relatives of the dead unborn child. Liability includes compensatory damages, including for emotional distress, punitive damages, and costs and attorneys’ fees.
Unlike the provisions that require public enforcement, these tort provisions can be enforced immediately and do not depend on overturning Supreme Court abortion precedent, according to Dickson. The ordinances contain a “life of the mother” exception, which is standard in virtually all anti-abortion legislation and is here written to proscribe abortion as a remedy where early delivery is the superior option.
The text states abortion is permitted “if the abortion was in response to a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”
Pro-life medical doctors acknowledge that “previable separations,” but never abortions, are necessary to save the mother’s life. In previable separations, mother and baby are separated to protect one or both lives, but the baby is not willfully killed. According to the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), in previable separations, health care providers try to “optimize the conditions of the separation so that the fetus has the best possibility to live.”
Executive Director of AAPLOG Donna Harrison told me via email, “The separation of the mother and her unborn child to save the life of the mother never requires the intentional death of the fetus,” even in cases such as chorioamnionitis (a bacterial infection which can turn lethal within a few hours), severe preeclampsia, or pulmonary hypertension. She believes the wording of the provision is sound.
Cities Are Sending a Big Message to Their States
The ordinances passed in Omaha and Naples were based on the ordinance passed in Waskom, Texas. The purpose of all three is to ban abortion services and prevent abortion organizations from building abortion facilities or converting old facilities into them. Dickson calls the ordinance template an “abortionclinic-ifacient,” which makes the city “uninhabitable to an abortion clinic and abortion services.”
According to Dickson, the Naples and Omaha city councils took proactive measures to protect what they view as the best interest of residents within the cities and in the surrounding areas, particularly those not yet born. Through these ordinances, these cities are “making a clear and definitive stand” for the preborn’s natural and constitutional rights.
“These ordinances are not perfect,” Dickson admitted, “but they seek to do what can be done within the laws of the state in which we live.” They aren’t a replacement for state action, “but should send a message to the state that the cities in their state have had enough of the bloodshed,” he said.
“It is time for the state to seriously consider bringing this holocaust to an end at the state level,” Dickson declared. He anticipates several more cities will pass similar legislation.
America is witnessing enhanced indignation over abortion as communities organize in earnest opposition. Whether these ordinances lead to courts overturning abortion precedent or to states nullifying Roe remains to be seen, but legislators at the state and federal levels would do well not to ignore the grassroots momentum of those opposed to legal abortion.