A Response To The Four Objections of Olson & Olson’s Review of the Ordinance Outlawing Abortion Within The City Limits Of Lubbock, Texas.

In August, we presented the city of Lubbock with a thorough pro-life ordinance consistent with the United States Constitution, the Texas Constitution, and all state and federal laws. In return, the city hired the Olson & Olson law firm — a firm with ties to Planned Parenthood — to review the ordinance. Olson & Olson met with the mayor and city council of Lubbock during an executive session and, as a result of the meeting, the city of Lubbock released four major objections to the ordinance. 

After looking at the objections I have a number of questions: (1) Did the attorneys at Olson & Olson read the proposed Lubbock ordinance or did they just jot something down on a Subway napkin and hand it to the city council? (2) Were there any more objections other than these four extremely weak objections? (3) Which attorneys from Olson & Olson met with the mayor and city council of Lubbock? 

Objection #1: The proposed ordinance, if enacted, would be void because it’s contrary to Texas Law. 

Response: This ordinance is based on state law. Read the Findings section of the Lubbock ordinance. 

The “Sanctuary Cities for the Unborn” ordinance for the city of Lubbock, if enacted, would be consistent with Texas law. Anyone who reads the Lubbock ordinance could argue this point. Under the section entitled “Findings” the ordinance states, “The State of Texas has never repealed its pre-Roe v. Wade statutes that outlaw and criminalize abortion unless the mother’s life is in danger” and “After the Supreme Court announced its opinion in Roe v. Wade, 410 U.S. 113 (1973), the Texas legislature recodified and transferred its criminal prohibitions on abortion laws to articles 4512.1 through 4512.6 of the Revised Civil Statutes.” and “The law of Texas therefore continues to define abortion as a criminal offense except when necessary to save the life of the mother. See West’s Texas Civil Statutes, article 4512.1 (1974).” The ordinance is quoting the laws of the State of Texas as the foundation by which we are standing on. Do the unnamed “legal experts” from Olson & Olson accept or reject the fact that these laws are still on the books in the State of Texas? Even if Olson & Olson does not accept the fact that these laws are still on the books that does not change the fact that they are. 

The “Sanctuary Cities for the Unborn” ordinance for the city of Lubbock claims “The Supreme Court’s judgment in Roe v. Wade did not cancel or formally revoke the Texas statutes that outlaw and criminalize abortion, and the judiciary has no power to erase a statute that it believes to be unconstitutional.” In support of this argument Pidgeon v. Turner (Tex. 2017) is quoted, “When a court declares a law unconstitutional, the law remains in place unless and until the body that enacted it repeals it” along with Texas v. United States (5th Cir. 2019) when it is said, “The federal courts have no authority to erase a duly enacted law from the statute books, [but can only] decline to enforce a statute in a particular case or controversy.” The Lubbock ordinance continues, “The Supreme Court’s pronouncements in Roe v. Wade and subsequent cases may limit the ability of state officials to impose penalties on those who violate the Texas abortion statutes, but they do not veto or erase the statutes themselves, which continue to exist as the law of Texas until they are repealed by the legislature that enacted them. The state’s temporary inability to prosecute or punish those who violate its abortion statutes on account of Roe v. Wade does not change the fact that abortion is still defined as a criminal act under Texas law.” 

What is the foundation of the Lubbock ordinance? The laws of the state of Texas. Laws that are still on our books. These laws have not been repealed. This is why the ordinance states, “The Texas murder statute defines the crime of ‘murder’ to include any act that ‘intentionally or knowingly causes the death’ of ‘an unborn child at every stage of gestation from fertilization until birth.’” This can be found in Texas Penal Code § 19.02; Texas Penal Code § 1.07. The ordinance explains, “Although the statute exempts ‘lawful medical procedures’ from the definition of murder, see Texas Penal Code § 19.06(2), abortion is not a ‘lawful medical procedure’ under Texas law unless the life of the mother is in danger, see West’s Texas Civil Statutes, article 4512.1 (1974).” 

Again, we read in the Lubbock Ordinance, “The law of Texas also prohibits abortions unless they are performed in a facility that meets the minimum standards for an ambulatory surgical center, and by a physician who holds admitting privilege at a nearby hospital. See Texas Health and Safety Code § 171.0031, 245.010(a). The Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), did not alter or revoke these requirements of state law; it merely enjoined state officials from enforcing the penalties established in those statutes against the abortion providers who violate them. Whole Woman’s Health v. Hellerstedt does not change the fact that abortion is not a ‘lawful medical procedure’ under Texas law unless it complies with sections 171.0031 and 245.010(a) of the Texas Health and Safety Code, and it does not change the fact that the Texas murder statute prohibits abortions that fail to comport with these still-existing requirements of Texas law.” 

To say that the Lubbock ordinance is contrary to state law is not a good enough argument. Not when we are, left and right, quoting state law as our basis. 

Objection #2: The proposed ordinance conflicts with state law because the state regulates abortions, including who may perform them, where they may be performed, and when they may be performed, and the proposed ordinance imposes additional regulations inconsistent with those state regulations. 

Response: This ordinance is based on state law. Read the Findings section of the Lubbock ordinance. 

According to the Texas Municipal League, “Home rule cities derive their power from the Constitution and look to the Legislature only as a limit on that authority and may do anything that is not specifically prohibited by state law.” The city of Lubbock is a “Home Rule” city. Nothing mentioned in this ordinance is inconsistent with the laws of the state of Texas. No one is pulling from the laws of the planet of Jupiter or Pluto here. We are pulling from the laws of the state of Texas. Does the state of Texas prohibit cities from outlawing abortion within their jurisdiction?

Absolutely not.

We actually see the exact opposite. 

The 2019 Legislative Session gave us Senate Bill 22. This bill prohibited tax dollars from funding abortion providers and their affiliates at both the state and local level. This bill also contained an amendment that specifically clarified that the bill did not prohibit cities and counties from prohibiting abortion within their jurisdiction. Senate Bill 22 was passed and signed into law by Governor Greg Abbott. This is part of the reasoning why the city council of Waskom, on June 11, 2019, passed an ordinance banning all abortions within their city limits. The ordinance which was passed in Waskom outlawed abortion within their city limits, declared abortion to be murder, and protected Waskom from abortion providers coming into their city and murdering innocent children made in the image of God. The ordinance did not defy any state or federal laws, but worked within state and federal laws and within the framework of Roe v. Wade

and within the subsequent decisions relating to abortion made by the Supreme Court of the United States. 

As the movement of cities outlawing abortion in their cities began to grow senators and representatives across the state of Texas voiced their support, including Senator Bryan Hughes (Mineola), Representative Mike Lang (Granbury), Representative Jonathan Stickland (Bedford), Senator Charles Perry (Lubbock), Senator Donna Campbell (New Braunfels), Dawn Buckingham (Lakeway), Representative Dustin Burrows (Lubbock), Representative Dennis Paul (Houston), Representative Tony Tinderholdt (Arlington), Representative Kyle Biedermann (Fredericksburg), Representative Briscoe Cain (Houston), Representative Steve Toth (Woodlands), Representative Matt Schaefer (Tyler), Representative Cole Hefner (Mount Pleasant), and Representative John Frullo (Lubbock). State Republican Chair LTC Allen West (Garland) and Texas Agriculture Commissioner Sid Miller (Stephenville) have also voiced support of the Sanctuary City for the Unborn initiative. Former Secretary of Energy and former Governor of Texas Rick Perry, Congressman Louie Gohmert (Tyler), and Senator Pat Fallon (Prosper) have also been encouraging of the work as well. 

At this point, a total of sixteen cities in Texas have passed ordinances outlawing abortion within their city limits. Commenting about the growing movement, State Representative Jonathan Stickland wrote “Last session my (wonderful) staff came up with an idea to offer an amendment to an obscure bill. It reaffirmed that cities could ban abortion, something that none of them had ever tried.” 

The Lubbock ordinance states, “The City Council of Lubbock finds it necessary to supplement these existing state-law prohibitions on abortion-murder with its own prohibitions on abortion, and to empower city officials and private citizens to enforce these prohibitions to the maximum extent permitted by state law and the Constitution. See Tex. Local Gov’t Code §§ 54.001(b)(1); 54.004.” 

Again, what does the Texas Municipal League say about Home Rule cities? “Home rule cities derive their power from the Constitution and look to the Legislature only as a limit on that authority and may do anything that is not specifically prohibited by state law.” To say that the Lubbock ordinance conflicts with state law because “the state regulates abortions, including who may perform them, where they may be performed, and when they may be performed, and the proposed ordinance imposes additional regulations inconsistent with those state regulations” is a statement which, in and of itself, conflicts with state law. 

Objection #3: The Texas Constitution prohibits a city from passing an ordinance ‘inconsistent with the laws of the State.” 

Response: This ordinance is based on state law. Read the “Findings” section of the Lubbock ordinance. 

I have already responded to this objection in my response to Objection #1 and Objection #2. Since the entirety of the Lubbock ordinance is consistent with the current laws of the state of Texas, the city of Lubbock is fully within its authority to pass the ordinance outlawing abortion within the city limits of Lubbock, Texas. I encourage the city of Lubbock and Olson & Olson to be consistent and not ignore state law on this issue. Criminalizing organizations that aid and abet abortion is fully consistent with 2A Texas Penal Code article 1192, at 433 (1961). 2A Texas Penal Code article 1192, at 433 (1961) imposes criminal liability on anyone who “furnishes the means for procuring an abortion knowing the purpose intended.” The Texas Legislature has not repealed article 1192 in response to Roe v. Wade, and this statute continues to exist as the law of Texas.

The Lubbock ordinance states, “To protect the health and welfare of all residents within the City of Lubbock, including the unborn, the City Council finds it necessary to outlaw abortion under city law and to establish penalties and remedies as provided in this ordinance. See Tex. Local Gov’t Code §§ 54.001(b)(1); 54.004.” This is in the city’s wheelhouse. 

Now let’s talk about inconsistency. The only inconsistency I am seeing right now is coming from the Mayor, the City Council of Lubbock, the attorneys for the city of Lubbock, and Olson & Olson. Why would Mayor Dan Pope say on a radio interview that he is a fan of Amy Coney Barrett and that he likes the point that “she is a Justice Antonin Scalia devotee” and ignore another Justice Antonin Scalia devotee who has offered to represent the city of Lubbock at no cost to the city and taxpayers if they are sued over this ordinance? Both Amy Coney Barrett and Jonathan F. Mitchell clerked for Justice Antonin Scalia. If Mayor Dan Pope is a fan of Justice Antonin Scalia one would think he would at least be willing to hear what Attorney Jonathan F. Mitchell has to say. The fact that the city of Lubbock turned to Olson & Olson, a law firm we know has ties to Planned Parenthood draws out more of this inconsistency. 

For more information about Olson & Olson I recommend the following articles: 

(1) “Texas City Hires Law Firm With Family-Ties to Planned Parenthood To Review Ordinance Outlawing Abortion” By Mark Lee Dickson 

https://www.lifesitenews.com/opinion/texas-city-hires-law-firm-with-family-ties-to-planned-parent hood-to-review-ordinance-outlawing-abortion 

(2) “Szwarc: Looking Past the Campaign Signs – Mayor Pope of Lubbock” By Sandy Szwarc https://texasscorecard.com/commentary/szwarc-looking-past-the-campaign-signs-mayor-pope-o f-lubbock/?highlight=Olson%20%26amp%3B%20Olson 

In addition to these articles, I think it is worthy to consider the testimony of a pro-life leader in Waco, Texas who has something to contribute to this discussion. John Pisciotta, a former professor from Baylor University and the Director of Pro-Life Waco, has known of the Olson families for many years and is very familiar with one of their attorneys. "The Olson & Olson law firm out of Houston has a bias regarding abortion. Art Pertile is involved in this counsel to the city of Lubbock. Pertile was the Waco city attorney in 2004 when Waco crafted an ordinance designed to shut down sidewalk counseling at the Waco Planned Parenthood abortion facility.” Pisciotta continued, “We challenged Pertile’s anti-pro-life ordinance at the state and federal levels. In 2006 the fifth circuit court of appeals struck down Pertile’s ordinance as An unconstitutional violation of free speech. The wity of Waco had to pay $30,000 to our attorneys. Pertile has been wrong before!" 

Objection #4: The proposed ordinance conflicts with state law because it creates offenses for some actions that are permitted or licensed by the state. This is prohibited by the Texas Constitution. 

Response: This ordinance is based on state law. Read the “Findings” section of the Lubbock Ordinance. 

Now I have already responded to this objection in my response to Objection #1, Objection #2, and Objection #3. Since the entirety of the Lubbock ordinance is consistent with the current laws of the state of Texas, the city of Lubbock is fully within its authority to pass the ordinance outlawing abortion within the city limits of Lubbock, Texas. We are not creating offenses here that are outside the scope of the Constitution and the laws of the state of Texas. The offenses already exist under state law. In addition to this nothing in the state law of the state of Texas says that a home rule city does not have the power to create a private cause of action for its citizens. Since the creation of this private cause of action is attempting to enforce an ordinance which is completely consistent with current state laws the private enforcement action, like the public enforcement action, is fully consistent with the United States Constitution, the Texas Constitution, and the laws of the United States of America and the laws of the great state of Texas. 

What Then Is There Left To Do? 

When it comes to the constitutionality of the proposed Lubbock ordinance, which would outlaw abortion within the city limits, it is not the ultimate decision of a law firm out of Houston, Texas which has family ties to the abortion industry. This is, ultimately, the decision of the people of Lubbock and those who they have elected to lead their city. 

As a Christian who believes that we all have to answer to the Lord one day, I take the Word of God seriously. Amos 5:15 says, “Hate evil, love good, and establish justice in the city gate and perhaps the Lord, the God of Hosts, will be gracious to the remnant of Joseph.” God cares about all of our cities. He wants us to hate what is evil, love what is good, and establish justice within our city gates. The city of Lubbock taking care of city business is not the job of Austin, Texas, or the job of Washington, D.C. but the job of Lubbock, Texas. If abortion happens in Lubbock, Texas it is not the problem of our governor or our senator or our Representatives in Austin, Texas but it is the problem of the Mayor and the city Council of Lubbock, Texas. Every single mayor and city council member took an oath to uphold the United States Constitution, the Texas Constitution, and the laws of the United States and the state of Texas, “so help me God.” Each one of these leaders has a choice to make as to what that actually looks like. For years many have led the narrative that abortion is a constitutional right, but many are having a hard time finding the ‘right to abortion’ anywhere in the Constitution. Supreme Court Justice Clarence Thomas recently called Roe v. Wade “farcical” and stated that the Supreme Court “can reconcile neither Roe nor its progeny with the text of our Constitution” and that, because of this, “those decisions should be overruled.” 

Mayor Dan Pope, if you believe the right to abortion is not in the Constitution, encourage the city council to pass this ordinance outlawing abortion within the city limits. There are nine findings listed at the beginning of the “Sanctuary Cities for the Unborn” ordinance for the city of Lubbock. Those findings are as clear as day.

Mayor, do what is right.

Fulfill your oath of office and recognize abortion for the reality that it is — the intentional murder of innocent unborn children made in the image of God. Lead the charge and outlaw abortion within the city limits of Lubbock, Texas, “so help you God!”

Mark Lee Dickson is a Director with Right to Life of East Texas, a Pastor of SovereignLOVE Church in Longview, Texas, and the founder of the Sanctuary Cities for the Unborn initiative.