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HomeMy WebLinkAboutR22-555462 RESOLUTION NO. R22-555 A RESOLUTION ACCEPTING CERTIFICATE FROM CITY SECRETARY VERIFYING SIGNATURES ON PETITION TO OUTLAW ABORTION AND DECLARE THE CITY OF PLAINVIEW A SANCTUARY CITY FOR THE UNBORN WHEREAS, the city received a request for petition on January 12, 2022 seeking to outlaw abortion within the City of Plainview and to declare Plainview a sanctuary city for the unborn; and WHEREAS, the Committee submitted the petition signatures seeking to outlaw abortion within the City of Plainview and to declare Plainview a sanctuary city for the unborn on February 10, 2022; and WHEREAS, the city secretary has certified in writing the number of verified signatures on said Petition. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PLAINVIEW, TEXAS THAT: Section 1 That the Mayor and City Council of the City of Plainview hereby receive from the City Secretary all papers pertaining to a Petition and proposed Ordinance seeking to outlaw abortion within the City of Plainview and to declare Plainview a sanctuary city for the unborn, and a Certificate attesting to the number of verified signatures on said Petition. Said documents are attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council; and PASSED AND APPROVED on this 8t" day of March, 2022. ATTEST: Belinda Hinojosa, City cretary 1 Resolution R22-555 Page 1 of 1 463 1 STATE OF TEXAS § COUNTY OF HALE § CITY OF PLAINVIEW § CERTIFICATION OF CITY SECRETARY I, Belinda Hinojosa, City Secretary of the City of Plainview, Texas do hereby certify, in the performance of the functions of my office, that the attached citizen initiative petition seeking to outlaw abortion within the city of Plainview and to declare Plainview a sanctuary city for the unborn, filed in my office on February 10, 2022, by members of the initiating committee, is sufficient and valid. The petition contains 1,453 signatures, of which 1,108 were verified as qualified and valid. This is in excess of the required 1,072 valid and qualified signatures. The petition verification process was conducted in accordance with the City of Plainview Charter, Article X, "Initiative, Referendum, Recall", and all relevant state laws. Members of the initiating committee are Lydia Castillo, Shayla Whalen, Robert Earhart, Maria Gonzales, Pam Shannon, Elizabeth Earhart, Kimmett Bellows, Robin McCormack, Amber Logsdon Bellows, and Kerry McCormack. In witness whereof I have hereunto set my hand and seal of the City of Plainview, Texas this the 25" day of February, 2022. ^ Belinda Hinojosa. 1 W Wednesday. January 12th, 2022 To the City Secretary of Plainview, Texas: Since November 15th. 2019 residents throughout the City of Plainview have expressed interest in _ seeing our city pass an enforceable ordinance outlawing abortion within their city limits. When the first member of our community showed interest in this effort only 6 cities had passed ordinances outlawing abortion. At the time no city in West Texas had even outlawed abortion, but eventually West Texas saw Westbrook (pop. 312), Colorado City (pop. 4,146), and Big Spring (pop. 26,862) all outlaw abortion within their city limits. On May 1 st, 2021 the City of Lubbock became the 26th city to pass an ordinance outlawing abortion within their city limits followed by cities like Abernathy (pop. 2,839) and Levelland (pop. 14,582). With abortions no longer happening in Lubbock, other cities wanted to make sure that their cities were safe from the expansion of the abortion industry - especially under an administration which has committed abortion access in every single zip code. On July 1 st, 2021 discussions started happening among members of our community about the best way to move forward in seeing our zip code protected from the expansion of the abortion industry. After much discussion over the past 7 months it has been decided that the best way forward for the City of Plainview is to go the route of seeing this ordinance pass through a Citizen Initiative Petition The Plainview City Charter indicates that initiative petitions must be signed by currently qualified voters of the city equal in number to at least 10 percent of the current registered voters. Our intention is to collect the appropriate number of petition signatures satisfying the requirement and causing the Plainview City Council to either adopt the ordinance outlawing abortion in the exact form proposed, or for the ordinance to be placed on the ballot for the voters of Plainview to decide at the next available election. We the undersigned residents of the City of Plainview have declared our intent to, by Article X of the Plainview City Charter, start the initiative process to see this 18 page ordinance outlawing abortion entitled, "ORDINANCE OUTLAWING ABORTION, DECLARING PLAINVIEW A SANCTUARY CITY FOR THE UNBORN MAKING VARIOUS PROVISIONS AND FINDINGS PROVIDING FOR SEVERABILITY, AND ESTABLISHING AN EFFECTIVE DATE" become law in our city. We constitute the Petitioner's Committee and will be responsible for circulating the petition and filing it in proper rm. Lydia C tillo 2902 West 17th Street Plainview, Texas 79072 Resident of Plainview since 1958 Petitioner's Committee Member #1 Shayla W al n 202 Sout ydada Plainview, Texas 79072 Maria Gonzales 2408 West 14th Street Plainview, Texas 79072 Resident of Plainview since 1969 tioner's Committee Member #2 Pam Shannon 1604 Ennis Street Plainview, Texas 79072 Resident of Plainview since 1972 Resident of Plainview since 1973 Petitioner's Committee Member #3 Petitioner's Committee Member #4 Ujys=l)�K :D G Qlii7 Gt/i�` Robert Earhart Elizabeth tarhart 815 El Paso 815 El Paso Plainview, TX 79072 iLk-7. Plainview, TX 79072 f Resident of Plainview since 4473 1— 0 3 Resident of Plainview since-+97-3 2 a 3 Petitioner's Committee Member #5 Petitioner's Committee Member #6 r (�J G�``�'% (i 465 mmett Bellows 2901 West 11 th Street Plainview, Texas 79072 Resident of Plainview since 2008 Petitioner's Committee Member #7 Robin McCormack 1412 Itasca Plainview, Texas 79072 Resident of Plainview since 2011 Petitioner's Committee Member #9 Amber L s0o eIIcws 2901 West 11 th Street Plainview, Texas 79072 Resident of Plainview since 2008 Petitioner's Committee Member #8 Kerry McCormack 1412 Itasca Plainview, Texas 79072 Resident of Plainview since 2015 Petitioner's Committee Member #10 All notices to the committee are to be sent to Petitioner Committee member Amber Bellows at 2901 West 11th Street, Plainview, Texas 79072. I, j c) ((r, being first duly sworn, on Oath depose and say that I am one of the signers of1the above affidavit, and the statements made are true, and that each signature appearing here on this page was made in my presence on Wednesday, January 12th, 2022, and I solemnly swear that the same is the genuine signature of the person whose name it purports to be. Swo and subscribed to before me this 12th day of January 2022. Signature of etit on Committee Member lgnature of Notary JANICE E TALLEY otary Public, State of Texas .�; Comm Expires 12-04-2023 Notary ID 130458477 1 H • • ORDINANCE OUTLAWING ABORTION, DECLARING PLAINVIEW A SANCTUARY CITY FOR THE UNBORN, MAKING VARIOUS PROVISIONS AND FINDINGS, PROVIDING FOR SEVERABILITY, AND ESTABLISHING AN EFFECTIVE DATE BE IT ORDAINED BY THE CITY OF PLAINVIEW, TEXAS THAT: A. FINDINGS The City of Plainview finds that: (1) Human life begins at conception. (2) Abortion is a murderous act of violence that purposefully and knowingly terminates an unborn human life. (3) Unborn human beings are entitled to the full and equal protection of the laws that prohibit violence against other human beings. (4) 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. See West's Texas Civil Statutes, articles 4512.1 — 4512.6 (1974); see also Act of June 14, 1973, ch. 399, §§ 5-6, 1973 Tex. Acts 883, 995-96; see also id. 996a, 996e (including the Texas abortion laws in the table indicating the "Disposition of Unrepealed Articles of the Texas Penal Code of 1925 and Vernon's Penal Code."). (5) The Texas Legislature has reaffirmed the continued existence and validity of the State's pre —Roe v. Wade criminal abortion statutes. See Senate Bill 8, 87th Leg., § 2 (2021) ("The legislature finds that the State of Texas never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v. Wade, 410 U.S. 113 (1973), that prohibit and criminalize abortion unless the mother's life is in danger."). (6) 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); Senate Bill 8, 87th Leg., § 2 (2021). (7) The law of Texas also imposes felony criminal liability on anyone who "furnishes the means for procuring an abortion knowing the purpose intended," see West's Texas Civil Statutes, article 4512.2 (1974), as well as anyone who aids or abets an abortion performed in violation of Texas law, see Tex. Penal Code section 7.02. (8) 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. See Pidgeon v. Turner, 538 S.W.3d 73, 88 n.21 (Tex. 2017) ("When a court declares a law Page 1 of 18 unconstitutional, the law remains in place unless and until the body that enacted it repeals it"); Texas v. United States, 945 F.3d 355, 396 (5th Cir. 2019) ("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." (citation and internal quotation marks omitted)). (9) The Supreme Court's pronouncements in Roe v. Wade and subsequent cases may temporarily 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 defined as a criminal act under Texas law. (10) 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." See Texas Penal Code § 19.02; Texas Penal Code § 1.07. Although the statute exempts "lawful medical procedures" from the definition of murder, see Texas Penal Code § 19.06(2), an 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). (11) 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. (12) The Texas abortion laws are severable in each of their discrete applications, and they are severable as applied to each individual person, group of persons, or circumstances. See Tex. Gov't Code § 311.036(c) ("Every statute that regulates or prohibits abortion is severable in each of its applications to every person and circumstance. If any statute that regulates or prohibits abortion is found by any court to be unconstitutional, either on its face or as applied, then all applications of that statute that do not violate the United States Constitution and Texas Constitution shall be severed from the unconstitutional applications and shall Page 2 of 18 remain enforceable, notwithstanding any other law, and the statute shall be interpreted as if containing language limiting the statute's application to the persons, group of persons, or circumstances for which the statute's application will not violate the United States Constitution and Texas Constitution."). These laws therefore remain enforceable against any individual or entity that aids or abets an abortion performed in Texas, so long as the prosecution of the particular individual or entity that aids or abets the abortion will not impose an "undue burden" on abortion patients. (13) The City of Plainview finds it necessary to supplement the existing state -law prohibitions on abortion 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. (14) The law of Texas explicitly allows municipalities and political subdivisions to outlaw and prohibit abortion, and to establish penalties and remedies against those who perform or enable unlawful abortions. See Tex. Gov't Code § 311.036(b) ("A statute may not be construed to restrict a political subdivision from regulating or prohibiting abortion in a manner that is at least as stringent as the laws of this state unless the statute explicitly states that political subdivisions are prohibited from regulating or prohibiting abortion in the manner described by the statute."). (15) To protect the health and welfare of all residents within the City of Plainview, including the unborn, the city council finds it necessary to outlaw abortion under city law, to outlaw acts that aid or abet abortions, and to establish penalties and remedies as provided in this ordinance. See Tex. Local Gov't Code §§ 54.001(b)(1); 54.004. B. DECLARATIONS (1) We declare Plainview, Texas to be a Sanctuary City for the Unborn. (2) Abortion at all times and at all stages of pregnancy is declared to be an act of murder unless the mother's life is in danger. (3) Abortion -inducing drugs are declared to be contraband, and we declare the possession of abortion -inducing drugs within city limits to be an unlawful act. (4) Abortions performed anywhere in the state of Texas are criminal acts under Texas law, unless the abortion is procured or attempted by medical advice for the purpose of saving the life of the mother. See West's Texas Civil Statutes, articles 4512.1 — 4512.6 (1974); see also Senate Bill 8, 87th Leg., § 2. I I Page 3 of 18 B • (5) Any person who "furnishes the means for procuring an abortion knowing the purpose intended," or who otherwise aids or abets an abortion performed in Texas, is a criminal and a felon subject to prosecution and imprisonment under article 4512.2 of the Revised Civil Statutes and section 7.02 of the Texas Penal Code, unless the abortion is procured or attempted by medical advice for the purpose of saving the life of the mother. (6) The City of Plainview urges the district attorney of Hale County to investigate and prosecute any individual or organization that "furnishes the means for procuring" an elective abortion, or that otherwise aids or abets such abortions, including: (a) employers and insurers who arrange for coverage of abortions in Texas; (b) individuals and organizations that knowingly provide transportation to or from a Texas abortion provider; (c) individuals and organizations that knowingly pay for another person's abortion in Texas, including abortion funds and abortion -assistance organizations; (d) individuals who knowingly donate money to abortion funds and abortion -assistance organizations that aid or abet abortions performed in Texas; (e) individuals and organizations that offer or provide "abortion doula" services in Texas. (7) The City of Plainview urges all of its citizens to regard those who perform or assist elective abortion in Texas as criminals, consistent with the abortion laws of Texas, and to report these criminal activities to the relevant district attorneys for investigation and criminal prosecution. C. AMENDMENTS TO CITY CODE Chapter 8 of the Plainview Code of Ordinances is amended by adding Article 8.06 to read as follows: Sec. 8.06.001. Definitions (a) For the purposes of this chanter, the following definitions shall apply: (1) "Abortion" means the act of using or prescribing an instrument. a drug. a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant. Page 4 of 18 470 The term does not include birth -control devices or oral contraceptives. and it does not include Plan B. morning -after pills. or emergency contraception. An act is not an abortion if the act is done with the intent to: (A) save the life or preserve the health of an unborn child: (B) remove a dead. unborn child whose death was caused by accidental miscarriage, or (C) remove an ectopic pregnancy. (2) "Unborn child" means a natural person from the moment of conception who has not vet completely left the womb. (3) "Abortion -inducing drugs)) includes mifepristone. misoprostol. and any dig or medication that is used to terminate the life of an unborn child. The term does not include birth -control devices or oral contraceptives, and it does not include Plan B, morning -after pills, or emergency contraception. The term also does not include drugs or medications that are possessed or distributed for a purpose that does terminationnot include the of a pregnancy. Sec. 8,06,002, Abortion Prohibited (a) It shall be unlawful for any person to procure or perform an abortion of any I! and at alax glagy, of pregnancyin the city of Plainview, (b) It shall be unlawful for any person to knowingly aid or abet an abortion that occurs in the city of Plainview, Texas. This section does not prohibit referring a patient to have an abortion which takes place outside the city limits of Plainview, Texas. The prohibition in this section includes, but is not limited to, the following acts: 1) Knowingly providing transportation to or from an abortion provider: (2) Giving instructions over the telephone, the internet, or any other medium of communication regarding self-administered abortion: (3) Providing money with the knowledge that it will be used to pav for an abortion or the costs associated with procuring an abortion: (4) Providing or arranging for insurance coverage of an abortion: Page 5 of 18 1 (c) It shall be an affirmative defense to the unlawful acts described in Subsections (a) and (b) if the abortion was in response to a life -threatening phvsical 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, The defendant shall have the burden of proving this affirmative defense by a preponderance of the evidence. (d) It shall be unlawful for any person to possess or distribute abortion -inducing drugs in the city of Plainview, Texas. (e) No provision of this section may be construed to prohibit any action which occurs outside of the iurisdiction of the city of Plainview. Texas. (f) No provision of this section may be construed to prohibit any conduct protected by the First Amendment of the U.S. Constitution, as made applicable to state and local governments through the Supreme Court's interpretation of the Fourteenth Amendment. or by Article 1. Section 8 of the Texas Constitution. (g) Under no circumstance may the mother of the unborn child that has been aborted, or the pregnant woman who seeks to abort her unborn child, be subject to prosecution or penalty under this section. (h) Whoever violates this section shall be subject to the maximum penalty permitted under Texas law for the violation of a municipal ordinance governing public health, and each violation shall constitute a separate offense. W Neither the City of Plainview, nor any of its officers or employeesI nor any district or county attorney, nor any executive or administrative officer or employee of any state or local governmental entity, may impose or threaten to impose the penalty described in Subsection (h) unless and until: (1) The Supreme Court overrules Roe v. Wade. 410 U.S. 11 (1973). and Planned Parenthood v. Casey. 505 U.S. 833 (1992). and permits states and municipalities to punish anyone who violates an abortion prohibition: or (2) A state or federal court enters a declaratory judgment or otherwise rules that the imposition or threatened imposition of this penalty pon the particular person. corporation, or entity that committed the unlawful act described in Subsection (h) will not impose an "undue burden" on women seeking abortions: or Page 6 of 18 472 (3) A state or federal court enters a declaratory Judgment or otherwise rules that the person. corporation. or entity that committed the unlawful act described in Subsection (h) lacks third -party standing to assert the rights of women seeking abortions in court. (i) The penalty provided in Subsection (h) may not be imposed or threatened against any individual or entity if a previous decision of the Supreme Court of the United States established that the conduct of that individual or entity was constitutionally protected at the time it occurred. (k) The non -imposition of the penalties described in Subsection (h) does not in any way legalize the conduct that has been outlawed by this section. and it does not in any way limit or affect the availability of the private -enforcement remedies established in Section 8.06.006, or the criminal penalties for abortion set forth in article 4512.1 of the Revised Civil Statutes and sections 1.07 and 19.02(b) of the Texas Penal Code. Abortion remains and is to be regarded as an illegal act under city law and a criminal act under state law, except when abortion is necessary to save the life of the mother. And abortion remains outlawed under both city and state law. despite the temporary and partial inability of city and state officials to punish those who violate the abortion laws on account of the Supreme Court's decisionmaking. (1) Mistake of law shall not be a defense to the penalty established Subsection Sec. 8.06,003, Abortion Coverage Prohibited in Employer -Provided Health Insurance or Benefits a) It shall be unlawful for anv emlover in the city of Plainview. Texas, an for any person acting on that employer's behalf, to offer, provide, or arrange for coverage of abortion in any health -insurance policy or plan, flexible spending account, health savings account_ or any other benefit provided to its employees. except for abortions performed 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. (b) Whoever violates this section shall be subject to the maximum penalty permitted under Texas law for the violation of a municipal ordinance governing public health, and each violation shall constitute a separate offense. Page 7 of 18 1 (c,) Any official of the city of Plainview. Texas. who becomes aware that an employer is aiding or abetting abortions by providing coverage of abortions in an employee -benefits package shall report that emplover to the district attorney of Hale County, and to all other district attorneys with jurisdiction over that employer, for criminal prosecution under article 4512.2 of the Revised Civil Statutes and section 7.02 of the Texas Penal Code. (a) It is the policy of Plainview, Texas to protect its unborn residents from individuals and organizations that aid or abet the killing of unborn children. and to protect the unborn from those who seek to kill or otherwise harm them, to the maximum extent permissible under state and federal law. Except as provided by Subsections (c). (d). (e). and (f). it shall be unlawful for any person to knowingly aid or abet an abortion performed on a resident of Plainview, Texas, or to attempt to aid or abet such an abortion, regardless subsection includes. but is not limited to: (1) (IN.erine or knowingly providing transportation to or from an abortion provider. medium of communication regarding self-administered abortion: (8) Offering or providing money with the knowledge that it will be used to pay for. offset, or reimburse the costs of an abortion or the costs associated with procuring an abortion; (4) Providing or arranging for insurance coverage of an abortion: (5) Offering or providing "abortion doula" services: (6) Providing referrals to an abortion provider: (7) Coercing or pressuring a pregnant mother to have an abortion: and (8) Engaging in any of the conduct that would make one an accom In ice to abortion under section 7.02 of the Texas Penal Code. (c) This section may not be construed to impose civil or criminal liability on any speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the United States Supreme Court's interpretation of the Fourteenth Amendment of the United States Constitution. or by Article 1. Section 8 of the Texas Constitution. Page 8 of 18 474 (d) This section may not be construed to prohibit conduct that Plainview. Texas, is forbidden to prohibit or regulate under state or federal law. (e) It shall be an affirmative defense if the unlawful acts described in Subsection (b) were taken 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. The defendant shall have the burden of proving this affirmative defense by a preponderance of the evidence. (f) Under no circumstance may the woman upon whom the abortion was performed, or the pregnant woman who seeks to abort her unborn child, be subiect to prosecution or penalty under this section. (g) Whoever violates this section shall be subiect to the maximum penalty permitted under Texas law for the violation of a municipal ordinance governing public health. and each violation shall constitute a separate offense. (h) Neither the City of Plainview. nor any of its officers or employees. nor any district or county attorney, nor any executive or administrative officer or employee of any state or local governmental entity, may impose or threaten to impose the penalty described in Subsection (g) unless and until: (1) 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 punish anyone who violates an abortion prohibition. or (2) A state or federal court enters a declaratory -judgment or otherwise rules that the imposition or threatened imposition of this penalty upon the particular person, corporation, or entity that committed the unlawful act described in Subsection (g) will not impose an "undue 1=41-761011". IMM,„ (3) A state or federal court enters a declaratory iudgment or otherwise rules that the person. corporation. or entity that committed the unlawful act described in Subsection (g) lacks third party standing to assert the rights of women seeking abortions in court. (i) The penalty provided in Subsection (g) may not be imposed or threatened against any individual or entity if a previous decision of the Supreme Court Page 9 of 18 1 of the United States established that the conduct of that individual or entity was constitutionally protected at the time it occurred. (j) The non -imposition of the penalties described in Subsection (g) does not in any way legalize the conduct that has been outlawed by this section. and it does not in any way limit or affect the availability of the private -enforcement remedies established in Section 8.06.006. Abortion remains and is to be regarded as an illegal act under city law and a criminal act under state law. except when abortion is necessary to save the life of the mother. (1) Any official of the city of Plainview. Texas, who becomes aware that an individual or organization is aiding or abetting abortions performed in Texas by engaging in the conduct described in subsection (b) shall report that individual or organization to the district attorney of Hale County, or to the district attorneys with jurisdiction over that individual or organization. for criminal prosecution under article 4512.2 of the Revised Civil Statutes and section 7.02 of the Texas Penal Code. Sec. 8.06.005. Abortions Performed in Violation of Texas Law (a) It is the policy of the city of Plainview to ensure that the Texas abortion laws are enforced to the maximum possible extent consistent with the Constitution and existing Supreme Court doctrine. (b) Except as provided by subsections (d). (e). (f). and (,g), it shall be unlawful for any person to perform an abortion in violation of any statute enacted by the Texas legislature, including article 4512.1 of the Revised Civil Statutes, as well as sections 171.0031(a)(1) and 245.010(a) of the Texas Health & Safety Code. (c) Except as provided by subsections (d). (e). (1). and (a). it shall be unlawful for any person to knowingly aid or abet an abortion performed in violation of any statute enacted by the Texas legislature, including article 4512.1 of the Revised Civil Statutes, as well as sections 171.0031(a)(1) and 245.010(a) of the Texas Health & Safety Code. The prohibition in this subsection inclur]es_ but is not limited to: Me AMMONIA .�WIJ NOW in 0 Page 10 of 18 476 (3) Offering or providing money with the knowledge that it will be used to pay for, offset. or reimburse the costs of an abortion or the costs associated with procuring an abortion; (4) Providing or arranging for insurance coverage of an abortion: (5) Offering or providing "abortion doula" services: (6) Providing referrals to an abortion provider, (7) Coercing or pressuring a pregnant mother to have an abortion: and (8) Engaging in conduct that makes one an accomplice to abortion under section 7.02 of the Texas Penal Code. (d) This subsection may not be construed to impose civil or criminal liability on any speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the United States Supreme Court's interpretation of the Fourteenth Amendment of the United States Constitution. or by Article 1. Section 8 of the Texas Constitution. (e) This section may not be construed to prohibit conduct that Plainview. Texas, is forbidden to prohibit or regulate under state or federal law. (f) It shall be an affirmative defense if the unlawful acts described in Subsection (b) were taken 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 maior bodily function unless an abortion is performed. The defendant shall have the burden of proving this affirmative defense by a preponderance of the evidence. (a) Under no circumstance may the woman upon whom the abortion was performed, or the pregnant woman who seeks to abort her unborn child, be subject to prosecution or penalty under this section. (h) Whoever violates this section shall be subject to the maximum penalty permitted under Texas law for the violation of a municipal ordinance governing -public health. and each violation shall constitute a separate offense. (i) Neither the City of Plainview, nor any of its officers or employees. nor any district or county attorney, nor any executive or administrative officer or emWovee of any state or local governmental entity, may impose or threaten to impose the penalty described in Subsection (h) unless and until: Page 11 of 18 47fi (l) The Supreme Court overrules Roe u. Wade. 410 U.S. 113 (1973). and Planned Parenthood u. Casey. 505 U.S. 833 (1992). and permits states and municipalities to punish anyone who violates an abortion prohibition, or (2) A state or federal court enters a declaratory iudgment or otherwise rules that the imposition or threatened imposition of this penalty upon the particular person, corporation. or entity that committed the unlawful act described in Subsection (h) will not impose an "undue burden" on women seeking abortions, or (3) A state or federal court enters a declaratory judgment or otherwise rules that the person, corporation. or entity that committed the unlawful act described in Subsection (h) lacks third -party standing to assert the rights of women seeking abortions in court. (i) The penalty provided in Subsection (h) may not be imposed or threatened against any individual or entity if a previous decision of the Supreme Court of the United States established that the conduct of that individual or entity was constitutionally protected at the time it occurred. (k) The non -imposition of the penalties described in Subsection (h) does not in any way legalize the conduct that has been outlawed by this section, and it does not in any way limit or affect the availability of the private -enforcement remedies established in Section 8.06.006. Abortion remains and is to be regarded as an illegal act under city law and a criminal act under state law. except when abortion is necessary to save the life of the mother. (1) Mistake of law shall not be a defense to the penalty established Subsection (m) Any official of the city of Plainview. Texas. who becomes aware that an individual or organization is performing or aiding or abetting abortions in violation of in violation of any statute enacted by the Texas legislature, including articles 4512.1 and 4512.2 of the Revised Civil Statutes, as well as sections 171.0031(a)(1) and 245.010(a) of the Texas Health & Safety Code. shall report that individual or organization to the district attorney of Hale County, or to the district attorneys with iurisdiction over that individual or organization. for criminal prosecution under articles 4512.1 and 4512.2 of the Revised Civil Statutes and section 7.02 of the Texas Penal Code. (a) Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action in state court Page 12 of 18 478 ' : 1. 11 : 1. 11• 'RI. -To M1 Lair -Ili. . .1 11,11101 1. 11 liol1. 11 1. 11•. . 1. 11 �. defendant committed: and .. .1 1i'� ►. . .11 MMITMIN 1 section if the defendant demonstrates that the defendant previously paid statutory damaLres in a previous action for the particular conduct that violated section 8.06.002,1.11 1.114 or 8.06.005. (d) There is no statute of limitations for an action brought under this section. (e) The following are not a defense to an action brought under this section: (1)ignorance or mistake of law: (2) a defendant's belief that the requirements of this section, or the requirements of sections 8,06,002, 8,06,003, 8,06,004, or 8,06,005. are unconstitutional or were unconstitutional: (3) a defendant's reliance on any court decision that has been overruled on anneal or by a subsequent court. even if that court decision had not been overruled when the defendant engaged in conduct that violates sections 8.06.002, 8.06.003, 8.06.004, or 8.06.005, (4) a defendant's reliance on any state or federal court decision that is not binding on the court in which the action has been brought; (5) nonmutual issue preclusion or nonmutual claim preclusion; TOM 1 V.Xkoj ! mv-41 1 1 1 • . 1 1 . 1 11 • . - ... (7) any claim that the enforcement of sections 8,06,002. 8,06,003, 8.06.004, or 8.06.005 or the imposition of civil liability against the defendant will violate the constitutional rights of third parties, except as provided by section 8.06.007. Page 13 of 18 1 (f) An action under this section must be brought in state court and not in the local or municipal courts: ,(g) This section may not be construed to impose liability on any speech or conduct protected by the First Amendment of the United States Constitution. as made applicable to the states through the United States Supreme Court's interpretation of the Fourteenth Amendment of the United States Constitution, or by Article 1. Section 8 of the Texas Constitution: (h) Neither the city of Plainview, Texas, nor any state or local official may intervene in an action brought under this section. This subsection does not prohibit a person or entity described by this subsection from filing an amicus curiae brief in the action. (i) A civil action under this section may not be brought by any person who impregnated the abortion patient through an act of rape, sexual assault, incest, or any other unlawful act. (i) Under no circumstance may a civil action under this section be brought against the mother of the unborn child that has been aborted, or the pregnant woman who seeks to abort her unborn child. Sec. 8.06.007. Civil Liability: Undue Burden Defense (a) A defendant against whom an action is brought under Section 8.06.006 does not have standing to assert the rights of women seeking an abortion as a defense to liability under that section unless: (1) the United States Supreme Court or the Supreme Court of Texas holds that the courts of this state must confer standing on that defendant to assert the third -party rights of women seeking an abortion in state court as a matter of federal or state constitutional law: or (2) the defendant has standing to assert the rights of women seeking an abortion under the tests for third -party standing established by the United States Supreme Court. (b) A defendant in an action brought under Section 8.06.006 may assert an affirmative defense to liability under this section if: (1) the defendant has standing to assert the third -party rights of a woman or group of women seeking an abortion in accordance with Subsection (a): and (2) the defendant demonstrates that the relief sought by the claimant will impose an undue burden on that woman or that group of women Page 14 of 18 rri seeking1 abortion. or otherwise vi• 1 rights of women 1 abortions under the United Constitution, / 11 11 1• 1 1 1 1• •/ 1 1 1 1 • 1 1 H } 1• 1_}.1 1 •�MIJ U•} 1 1 } }• . 1 . 1 • . • 1 . • 11 1 1 • • • . 1 1/ ' 1 / 11 (1) merely demonstrating that an award of relief will prevent women from obtainingsupport or assistance. financial or otherwise. from (2) arguing or attempting to demonstrate that an award of relief against other defendants or other potential defendants will impose an undue burden on women seeking an abortion. (e) The affirmative defense under Subsection (b) is not available if the United States Supreme Court overrules Roe v. Wade. 410 U.S. 113 (1973). or Planned Parenthood v. Casey. 505 U.S. 833 (1992). Nothing in this section shall in anv wav limit or preclude a defendant from asserting the defendant's personal constitutional rights as a defense to liability under Section 8,06,006. and a court may not award relief under Section 8,06,006 if the conduct for which the defendant has been sued was an exercise of state or federal constitutional rights that personally belong to the defendant. Sec. 8.06.008. Severability (a) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996). in which in the context of determining the severability of a state statute regulating abortion the Supreme Court of the United States held that an explicit statement of legislative intent is controlling. the provisions and applications of this chapter shall be severable as follows: subsection. sentence. clause. phrase. or word in this chapter, and every application of the provisions in this chapter, are severable from each other. If any application of any provision in this chapter to any person, group of persons. or circumstances is found by a court to be invalid or Page 15 of 18 unconstitutional then the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected All constitutionally valid applications of the provisions in this chapter shall be severed from any applications that a court finds to be invalid leaving the valid applications in force. because it is the city council's intent and priority that the valid applications be allowed to stand alone. Even if a reviewine court finds a provision of this chapter to impose an undue burden in a large or substantial fraction of relevant cases the applications that do not present an undue burden shall be severed from the remaining applications and shall remain in force, and shall be treated as if the city council had enacted an provision limited to the persons, group of persons, or circumstances for which the provision's application do not present an undue burden. The city council further declares that it would have enacted this chapter and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of this chapter, irrespective of the fact that any. provision. section. subsection. sentence. clause. phrase, or word, or applications of this chapter were to be declared unconstitutional or to represent an undue burden. (2) If any court declares or finds a provision in this chapter facially unconstitutional, when there are discrete applications of that provision that can be enforced against a person, group of persons, or circumstances without violating the Constitution, then those applications shall be severed from all remaining applications of the provision, and the provision shall be interpreted, as a matter of city law, as if the city council had enacted a provision limited to the persons. group of persons. or circumstances for which the nrovision's application will not violate the Constitution. (3) If an- _provision of this chanter is found by any court to be unconstitutionally vague. then the applications of that provision that do not present constitutional vagueness problems shall be severed and remain in force, consistent with the declarations of the city council's intent in Subsections (a)(1) and (a)(2). and the provision shall be interpreted, as a matter of city law. as if the city council had enacted a provision limited to the persons, group of persons, or circumstances for which the movision's application do not present constitutional vagueness problems. (4) No court may decline to enforce the severability requirements in Subsections (a)(1). (a)(2). and (a)(3) on the ground that severance Page 16 of 18 1 locality or government official from enforcing a subset of an ordinance's applications is never "rewriting" an ordinance, as the ordinance continues to say exactly what it said before. A judicial injunction or declaration of unconstitutionality is nothing more than a non -enforcement edict that can always be vacated by later courts if they have a different understanding of what the Constitution requires; it is not a formal amendment of the language in a statute or ordinance. A judicial iniunction or declaration of unconstitutionality no more "rewrites" an ordinance than a decision by an executive official not to enforce a duly enacted statute or ordinance in a limited and defined set of circumstances. (5) If any federal or state court ignores or declines to enforce the requirements of Subsections (a)(1). (a)(2). (a)(3). or or holds a after provision of this chapter invalid ,a)(4). or unconstitutional on its face failing to enforce the severability requirements of Subsections (a)(1), (a)(2), (a)(3) and (a)(4), for any reason whatsoever, then the Mayor shall hold delegated authority to issue a saving construction of this chapter that avoids the constitutional problems or other problems identified by the federal or state court. while enforcing the provisions of this chapter to the maximum possible extent. The saving construction issued by the Mayor shall carry the same force of law as an ordinance: it shall represent the authoritative construction of this chapter in both federal and state iudicial proceedings: and it shall remain in effect until the court ruling that declares invalid or enjoins the enforcement of the original provision in this chapter is overruled. vacated. or reversed. (6) The Mayor must issue the saving construction described in Subsection (a)(5) within 20 days after a judicial ruling that declares invalid or enioins the enforcement of a provision of this chapter after failing to enforce the severability requirements of Subsections (a)(1), (a)(2), (a)(3). and (a)(4). If the Mayor fails to issue the saving construction required by Subsections (a)(5) within 20 days after a iudicial ruling that declares invalid or enioins the enforcement of a provision of this chapter after failing to enforce the severability requirements of Subsections (a)(1). ((,a)(2). (a)(3). and (,a)((4). or if the Mayor's saving construction fails to enforce the provisions of the article to the maximum possible extent permitted by the Constitution or other superseding legal requirements, as construed by the federal or state Page 17 of 18 - 483 juriiciarieG then any person maypetition for a writ of mandamus requiring the Mayor to issue the saving construction described in Subsection (a)(5). D. EFFECTIVE DATE This ordinance shall go into immediate effect upon a majority vote within the Plainview, Texas City Council meeting. PASSED, ADOPTED, SIGNED and APPROVED, Mayor of the City of Plainview, Texas City Secretary of the City of Plainview, Texas FURTHER ATTESTED BY "WE THE PEOPLE," THE CITIZENS and WITNESSES TO THIS PROCLAMATION, THIS DAY OF THE YEAR OF OUR LORD WITNESS: WITNESS: Page 18 of 18