HomeMy WebLinkAbout22-3739 OrdinanceIN
ORDINANCE NO. 22-3739
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(4) The State of Texas has never repealed its pre —Roe v. Wade statutes that outlaw and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(2021) ("The legislature finds that the State of Texas never repealed, either expressly or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 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
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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 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
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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.
(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;
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(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:
ARTICLE 8.06 ABORTION
Sec. 8.06.001. Definitions
(a) For the purposes of this chapter, the following definitions shall apply:
"Abortion" means the act of usina or Drescribina an instrument. a drua. 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. 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 bV
accidental miscarriaae; or
(C) remove an ectopic pregnancy.
(2) "Unborn child" means a natural person from the moment of conception
who has not yet completely left the womb.
3) "Abortion-inducina druas" includes mifegristone, misor)rostol, and anv dru
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 druas or medications that are possessed or
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distributed for a purpose that does not include the termination of a
pregnancy.
ancy.
Sec. 8.06.002. Abortion Prohibited
(a) It shall be unlawful for any person to procure or perform an abortion of anv
type and at any stage of pregnancy in the city of Plainview, Texas.
b) It shall be unlawful for anv person to knowinalv 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 followina
acts:
(1) Knowingly providing transportation to or from an abortion provider;
Givina instructions over the teleahone. the internet. or anv other medium
of communication regarding self-administered abortion;
(3) Providing money with the knowledge that it will be used to pay for an
abortion or the costs associated with orocurina an abortion:
(4) Providing or arranging for insurance coverage of an abortion;
(5) Providing "abortion doula" services; and
(6) Coercing or pressuring a pregnant mother to have an abortion against her
will.
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
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 arovina this affirmative defense by a
reponderance 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 citv 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.
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fig) 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.
(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 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. 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 (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.
(j) 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-imaosition 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.
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(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 any employer in the city of Plainview, Texas, and 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 governin
public health, and each violation shall constitute a separate offense.
(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 employer 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.
Sec. 8.06.004. Abortions Performed Outside Plainview, Texas
(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.
(b) 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 of
where the abortion is or will be performed. The prohibition in this subsection
includes, but is not limited to:
(1) Offering or 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) 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;
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(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 accomplice 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.
(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
subject to prosecution or penalty under this section.
(q) 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.
(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
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described in Subsection (g) 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 (q) lacks third -party standing to assert the rights
of women seekina 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 of the
United States established that the conduct of that individual or entity was
constitutionally protected at the time it occurred.
(0) 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.
(k) Mistake of law shall not be a defense to the penalty established Subsection
(I) 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 (q), 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), (f), and (q), 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
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Health & Safety Code. The prohibition in this subsection includes, but is not
limited to:
(1) Offering or 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) 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) Providina or arranaina for insurance coveraae 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
major bodily function unless an abortion is performed. The defendant shall have
the burden of provina this affirmative defense by a preponderance of the
evidence.
(g) 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.
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(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 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. 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 (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 jurisdiction 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.
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Sec, 8,06,006, Private Right of Action
(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 against
any person who violates or intends to violate sections 8.06.002, 8.06.003,
8.06.004, or 8.06.005.
If a claimant prevails in an action brouaht under this section, the court shall
award:
(1) injunctive relief sufficient to prevent the defendant from violating section
8.06.002. 8.06.003. 8.06.004. or 8.06.005 in the future:
2) statutory damaaes in an amount of not less than $10.000 for each
violation of section 8.06.002, 8.06.003, 8.06.004, or 8.06.005 that the
defendant committed; and
3) costs and attornev's fees.
(c) Notwithstanding Subsection (b), a court may not award relief under this
section if the defendant demonstrates that the defendant previously paid
statutory damages in a previous action for the particular conduct that violated
section 8.06.002, 8.06.003, 8.06.004, or 8.06.005.
(d) There is no statute of limitations for an action brought under this section.
(e) The followina are not a defense to an action brouaht under this section:
norance or mistake of law:
2) a defendant's belief that the reauirements 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
appeal 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;
6) the consent of the unborn child's mother to the abortion: or
(7) any claim that the enforcement of sections 8.06.002, 8.06.003, 8.06.0
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.
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(f) An action under this section must be brought in state court and not in the local
or municipal courts;
(q) 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 unbom 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 seeking
an abortion, or otherwise violate the rights of women seeking abortions
under the United States Constitution.
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(c) A court may not find an "undue burden" under Subsection (b) unless the
defendant introduces evidence proving that:
(1) an award of relief will prevent a woman or a group of women from
obtaining an abortion; or
(2) an award of relief will place a substantial obstacle in the path of a woman
or a group of women who are seeking an abortion.
(d) A defendant may not establish an "undue burden" under this section by:
(1) merely demonstrating that an award of relief will prevent women from
obtaining support or assistance, financial or otherwise, from others in
their effort to obtain an abortion: or
(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).
(f) Nothing in this section shall in any way 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 riahts that personally belona 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
controllina. the provisions and applications of this chapter shall be severable as
fnllnws
1) It is the intent of the citv council that every section, arovision. 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
unconstitutional, then the remainina applications of that arovision 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
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alone. Even if a reviewing 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 citv 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 provision's application will not violate the Constitution.
(3) If any provision of this chapter 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 provision'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 would
"rewrite" the ordinance or involve the court in legislative or lawmaking
activity. A court that declines to enforce or enjoins a 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 injunction or declaration of unconstitutionality no
more "rewrites" an ordinance than a decision by an executive official not to
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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 (a)(4), or holds a
provision of this chapter invalid or unconstitutional on its face after 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 judicial
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.
1
(6) The Mayor must issue the saving construction described in Subsection
(a)(5) within 20 days after a judicial ruling that declares invalid or enjoins
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 judicial ruling that declares invalid or enjoins
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
judiciaries, then any person may petition for a writ of mandamus requiring
the Mavor to issue the savina 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.
This Ordinance was approved by the voters at an election held on November 8,
2022 and duly canvassed on November 17, 2022 by Resolution R22-582.
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