Liberal cities are taking preemptive steps to preserve access to abortion in the event that the Supreme Court overturns Roe v. Wade in June by de-prioritizing enforcement of statewide restrictions within city limits, a strategy modeled on successful efforts to allow drug use in blue enclaves.
Abortion rights advocates expect to see a proliferation of city-level proposals directing law enforcement to de-prioritize enforcement of abortion restrictions if the court overturns Roe, thereby handing the authority to regulate abortion to states. The chance that the court will overturn the 1973 decision appears high given the full-throated rejection of Roe in a leaked draft opinion from Justice Samuel Alito.
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“Potentially, you will see this catch on,” said Rachel Rebouche, the interim dean of the Temple University Beasley School of Law. “It’s something that I’ve been thinking a lot about, which is that there are going to be all these different jurisdictional questions that pop up after Roe v. Wade is overturned because states are monolithic.”
The strategy would be similar to the one that many cities and states have used to circumvent the federal ban on marijuana. While marijuana is federally illegal, many liberal states and cities have decriminalized marijuana or set enforcement laws as the lowest priority for municipal law enforcement. Among the first cities to do this were Seattle; Oakland, California; San Francisco; and Denver.
“Maybe the analogy is marijuana, where states and cities decided to not enforce, not prosecute, consider it the lowest priority,” Rebouche said. “So I wonder if that’s the kind of trajectory — if that’s the trend we’re seeing. But I certainly think that you could see this pop up all over the place. I think that you’re seeing a lot of models being tried out.”
The most high-profile instance of a city rejecting state abortion restrictions comes from Austin, Texas. Chito Vela, a member of the Austin City Council, has initiated the first push by a major city to circumvent red state restrictions on abortion through the Guarding the Right to Abortion Care for Everyone Act, dubbed the GRACE Act.
“People are really frightened right now, and the idea that there is kind of a final frontier of defense against tyrannical measures is a really positive thing for people to hear,” said Jenna Hanes, a spokeswoman for Vela.
The GRACE Act is a preemptive resolution that, if approved, would shield Austin residents from the state’s trigger law, which will automatically ban abortion if the Supreme Court rules to overturn Roe. The trigger law would make performing, inducing, or attempting an abortion a first-degree felony, punishable by up to life in prison and up to a $10,000 fine.
“This is similar to measures we’ve taken in the past to decriminalize marijuana,” Hanes told the Washington Examiner. “Under this resolution, it would be mandatory that if [the officer] gets 10 calls with the need to respond to in the day and one of them is about abortion, he would need to respond to all nine other calls before the abortion one.”
Vela’s proposal would also block city funding from being used to investigate, catalog, or report suspected abortions.
Vela’s proposal is unique. While several cities such as Oakland and Washington, D.C., have positioned themselves as abortion rights sanctuaries, they are not within Republican-led states. In Radnor Township, Pennsylvania, though, the city passed a preemptive ordinance that would prevent the township’s police department from using any of its resources to arrest, charge, or prosecute a person accused of facilitating, providing, or receiving abortion services. While Pennsylvania has a Democratic governor, the state legislature is deep red.
In the face of growing restrictions at the state level on legal access to abortion, as well as the threat of a Supreme Court decision to weaken or overthrow Roe, implementing policies similar to those in Vela’s proposal would offer residents of liberal enclaves within red states some relief.
“I know it’s the only [policy battleground] left if Roe v. Wade is overturned,” Hanes said. “What’s left is cities, at least within the states that won’t ban abortion, and … municipal just in general is where you’re going to find sort of the last vestige of defense within states that unfairly ban these procedures.”
Several cities are moving in the opposite direction. Fifty cities across red states, the majority of which are in Texas, have passed ordinances that completely outlaw abortion within their city limits. Local leaders call these sanctuary cities for the unborn.
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The Supreme Court is expected to issue its final decision this month in the case Dobbs v. Jackson Women’s Health Organization, which pertains to a 2018 Mississippi law that bans abortions at 15 weeks. The high court will consider whether states can ban abortion before viability, the point at which survival is possible outside the womb, estimated to be between 22 and 24 weeks of pregnancy.
“What will be complicated about this is of course Austin’s city charter, or how [its] council passes laws, is different than the Radner township, which is part of the commonwealth township structure,” Rebouche said. “Each of these legal questions about where power lies and how much power cities have, there’ll be some commonalities, but there’ll be some pretty big divergences.”
