The Sanctuary for the Unborn movement won its largest victory so far when, after two years of legwork involving 200 local churches, voters in Lubbock, Texas (pop. 316,453) passed an ordinance against abortion.
But check the ordinance’s fine print.
The ordinance blocks city and state penalties until the Supreme Court reverses all past opinions that abortion is “constitutionally protected.”
The ordinance also makes lawsuits moot unless the Supreme Court rules against abortion, a state or federal court opines that an abortionist lacks standing to speak for people who seek abortions, and a state or federal court decides that punishment for committing abortion would not impose an undue burden on people who seek abortions.
Any such poison pill provisions should not be respected as law. Law is meant to consist only of rules proscribing specific actions, together with penalties for doing those actions. Any content other than such rules and penalties violates the separation of powers: it fails to exercise a legislative power but instead either delegates legislative powers or grabs executive powers or judicial powers.
By treating abortion as legal until judges opine differently, this ordinance treats judges’ opinions on individual cases as establishing the law for all cases. This is a perverse attempt to respond to previous lawless judicial opinions by errantly pushing formal legislative powers into the hands of judges.
If these poison pill provisions were omitted, voters would surely enact the rest of the ordinance. In that case, the ordinance would establish the rule that in Lubbock, Texas, abortion is an act of murder. And Texas, like every state, has laws that criminalize murder and that criminalize conspiracy to commit murder.
Waiting for Legal-Defense Coalitions
Personhood Alliance, which counts among its supporters Alveda King and Senator Ted Cruz (R-Texas), correctly argues that judges’ opinions that violate the Constitution are not lawful.
In its Safe Cities and Counties Initiative, Personhood Alliance suggests a three-step sequence: 1) declare support of the right to life, 2) build a coalition, 3) outlaw abortion.
Declarations of support of the right to life have been completed by nine cities in Mississippi and two counties in North Carolina.
In theory, these initiatives say that judges’ unconstitutional opinions aren’t binding. In practice, though, these initiatives cause judges’ past opinions to remain binding, and then focus on winning new judges’ opinions that are constitutional.
Judges are human. As long as people keep taking the battle back to judges, judges’ human-enough propensity for error, defensiveness, and resistance to change will keep the prospects dim for judicial reversals on abortion.
The initial setback for the right to life originated with judges, and then the cause was stalled for decades when decisive numbers of other government officers acted as if judges’ unconstitutional opinions were lawful and should be respected. As long as people continue to take this battle back to judges, any current gains can potentially be reversed by future judges and wrongfully respected by other officers.
Not only do those approaches relying on judges have serious issues for constitutional and human nature concerns, but it has been established by now that they are proven to fail because of their snail-like pacing. Routinely, like clockwork, change for the better stops far short when the approach to pacing is either Sanctuary for the Unborn’s stepping or Personhood Alliance’s phasing. The approach that’s by far the best is constant pedal-to-the-metal doing.
To make our rights secure, we must fight. When we fight, we should always use our strongest powers.
Using Offsetting Constitutional Powers
City and county governments are fundamental. Their many tasks are straightforward and easy to visualize.
Although individually small, they concentrate large numbers of personnel into small areas, and they can be supported by large numbers of people in small areas. And being governments, they also wield serious force.
Any given city or county government, by mobilizing many people in a small area and wielding force, can strongly offset the powers of state governments and of the national government within a city or county. In the aggregate, a few cities or counties can decisively overpower the light local footprint and weak reach of the applicable state governments and of the national government.
Like the many speakeasies and patrons during Prohibition, city and county governments and the cities’ and counties’ people can make even a constitutional amendment unenforceable and therefore moot.
How might this work to take down Planned Parenthood’s new Lubbock Health Center?
A city government can be a central focus of people who organize. The city government has criminal ordinances, zoning, police, prosecutors, judges, and jails, and can provide jury trials.
To use offsetting constitutional powers to prevent abortions, ordinances can provide rules and penalties criminalizing abortion and conspiracy to commit abortion. Zoning can disallow any occupancy used to commit abortions. Police can arrest, prosecutors can prosecute, judges and jurors can try and sentence, and jails can imprison.
To use offsetting constitutional powers to secure people’s rights to protect life, police can refuse to arrest or extradite and can provide armed protection against outside forces. Judges and juries can return innocent verdicts and jailors can refuse to imprison. All these actions are needed to support the protection of the right to life that’s the most fundamental rule in the Constitution—which of course, everywhere in the United States of America, is the supreme law.
Maybe state politicians in Texas, or maybe national politicians, would successfully fight for abortion at first in a single, small city that opposes abortion. But if there are two cities, or ten, or a hundred, the fights will quickly become limited to more Progressive places. And once abortion is clearly illegal in at least one place, its pretense of legality across the country will be stripped away and its days will be numbered everywhere. Desegregation in Arkansas didn’t succeed because there were federal troops as much as because segregation was wrong, so people’s determination to take action in support of segregation eventually collapsed.
In Lubbock and elsewhere, what’s most glaringly missing aren’t voters who support the Constitution but rather government officers who support the Constitution—who understand that this requires that they use their opposing powers to limit others in government.
In Lubbock, the ordinance that voters approved is the ordinance that the city council earlier disapproved unanimously, with all seven members voting against it. Not one council member used his power to support the Constitution, even to make secure the fundamental right to life.
Focus on Elections
The understanding that government officials need to use their offsetting powers to limit unconstitutional actions by others in government was clear in the founding generation, was acted on by Jefferson and Jackson in office, and was echoed by Lincoln when he was a candidate for president.
The understanding that jurors need to use their own offsetting power of jury nullification to limit unconstitutional actions by others in government is among the strongest reasons why the Bill of Rights secures everyone’s right to a trial by jury.
The voters are ready, but the activists haven’t created the solution, and most of the current officers in all our governments are a large part of the problem.
Most of these officers, through specific actions and specific failures to act, are in fact conspirators to commit abortion. And whichever persons have the most power to prevent abortion and fail to use their power are the people who are the most culpable, who deserve the most severe punishment.
Abortion is a particularly systemic failure. It’s enabled by the disuse of offsetting powers. This disuse started when the Constitution became law, and over the generations this disuse morphed from vice to habit to custom.
Activists and voters need to focus their activism on electing officers who will support the Constitution by using their constitutional authority to end abortion.