Texas town wants to get sued over abortion — and it could cost them millions

Thanks to a radical anti-abortion effort, Lubbock, Texas, is probably about to be sued — and it won’t be a surprise to the city council or the residents. 

The voters of Lubbock recently voted to declare the city a “sanctuary city for the unborn” and to criminalize abortion. This designation is thanks to a multiyear campaign from Texas Right to Life, among other anti-abortion groups.  Over 20 small Texas towns, none of which even had an abortion provider, have banned abortion at the municipal level. 

Lubbock is different, though. Less than a year ago, Planned Parenthood opened a health center there. So, these “sanctuary city” laws, which are nothing but toothless statements elsewhere, could have a real effect in Lubbock.

Over 60% of the citizens of Lubbock voted to adopt an ordinance that the city council had previously unanimously voted down. Last September, the city manager told the council that Lubbock has “no ability to enforce an ordinance like this without exposing the city to significant legal and financial risk.” That’s because the ordinance entirely bans abortion, which it calls “abortion-murder” throughout.

These sanctuary city efforts have already spawned litigation in seven Texas cities. In 2020, the ACLU sued on behalf of reproductive rights groups and got those cities to remove language that called abortion providers “criminal entities.” Lubbock’s ordinance sidesteps that language, but it has a host of other problems. 

Most obviously, the ordinance flies in the face of state and federal laws that guarantee abortion is a constitutional right, regardless of Texas’s near-constant attempts to severely restrict or ban abortion at the state level. 

Additionally, the ordinance sets up an unusual and likely unconstitutional enforcement scheme. Rather than the city of Lubbock enforcing the ordinance against the city’s only abortion provider, Planned Parenthood, the law creates a private enforcement right: Anyone who performs an abortion or helps someone get an abortion, such as by driving them to a provider, can be sued by the fetus’ father, grandparents, siblings, or half-siblings. They can sue for damages for emotional distress, punitive damages — damages designed to literally punish — and attorney fees and costs. 

This provision creates an issue of standing. To bring a lawsuit, someone generally has to prove that they’ve been personally harmed by someone else’s actions in some fashion and that the suit can redress that harm. The Lubbock ordinance would let relatives assert that they were harmed by someone else having an abortion — a legal, constitutionally guaranteed right in the United States. 

This provision, allowing for private causes of action in abortion cases, seems to be a current favorite in Texas. At the state level, the Texas House just approved a six-week abortion ban that would let literally anyone sue an abortion provider or anyone who helps someone get an abortion. 

It isn’t just that the ordinance could spark a lawsuit from a group like Planned Parenthood or the ACLU, seeking to block it from taking effect. A lawsuit could also be sparked by someone suing Planned Parenthood for providing an abortion or suing a person who provided funds or transportation for the procedure.

Anti-abortion activists and citizens in Lubbock are celebrating their win, including boasting that they have found an attorney who will defend Lubbock for free if the city is sued. But the cost issue isn’t really about whether an attorney would charge the city. It’s about the costs that attorneys who sue the city might incur and the fact the city might have to reimburse those costs.

That’s what happened in Louisiana after that state passed an abortion law that the Supreme Court eventually ruled unconstitutional. These types of cases have a fee-shifting provision, which means the loser pays the winner’s attorney fees. In Louisiana, attorneys representing abortion providers are seeking over $8 million in fees they expended over six years fighting the law. 

So, while Lubbock citizens may be spoiling for a fight, hoping perhaps to get before a friendly United States Supreme Court, a loss could be very, very costly.