In May 2021, the voters of Lubbock—the 11th-largest city in Texas—overwhelmingly approved a measure (Proposition A) that outlaws abortion in Lubbock. The ordinance took effect on June 1, 2021. Like the Texas Heartbeat Act, the Lubbock ordinance provides that it may be enforced only by private civil lawsuits brought against individuals who perform or aid or abet abortions in Lubbock, and it prohibits the city of Lubbock and its officials from enforcing its ban. Unlike the Texas Heartbeat Act, the Lubbock abortion ban applies from conception, rather than when a fetal heartbeat is detectable.
The city enacted this ordinance because a Planned Parenthood affiliate had recently begun performing abortions in Lubbock. Planned Parenthood immediately sued the city after the voters approved the ordinance. But in an excellent ruling, federal district judge James Wesley Hendrix dismissed Planned Parenthood’s lawsuit for lack of jurisdiction. Judge Hendrix held that relief against the city could not possibly redress Planned Parenthood’s alleged injuries, because the city of Lubbock has no role in enforcing the ordinance. Planned Parenthood therefore lacked standing to pursue its claim. The ordinance took effect as scheduled on June 1, 2021, and Planned Parenthood has complied with the law and ceased performing abortions in Lubbock.
Planned Parenthood initially appealed Judge Hendrix’s ruling to the Fifth Circuit. But last week it abandoned its appeal, ending the court battle and ensuring that Lubbock’s abortion ban will remain in effect. This marks the first occasion in which an abortion ban has survived court challenge since Roe v. Wade, and represents another vindication of the legal workaround to Roe that was conceived by the Texas legislature. By outsourcing enforcement of its abortion ban to private citizens, the city of Lubbock made its ordinance immune from pre-enforcement lawsuits: because neither the city nor its officials have any role in enforcing the law, they cannot be subjected to lawsuits that challenge the constitutionality of the ordinance. And lawyers for abortion providers have been incapable of thwarting abortion restrictions that are structured this way—even while Roe v. Wade continues, for now, to exist as a precedent of the Supreme Court.
In his concurring opinion in Webster v. Reproductive Health Services (1989), Justice Scalia lamented that it “appears that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.” But that ramshackle house of horrors finally appears to be collapsing.