While debate over the right to abortion rages on the national stage and advocates prepare for battle at the state level, dozens of local governments have passed ordinances seeking to outlaw abortion locally, including two in Nebraska.
The city of Blue Hill (population roughly 900) and village of Hayes Center (home to about 200) passed ordinances in April. Two more — the city of Curtis and the village of Dunning — have taken initial votes on their own.
Anti-abortion advocates feel encouraged by oral arguments this past week in Dobbs v. Jackson Women’s Health Organization, in which Mississippi has asked the Supreme Court to overrule the landmark Roe v. Wade and Planned Parenthood v. Casey decisions. Advocates on either side of the issue in Nebraska predict major state legislation next year, even as the precise form of potential bills remains unclear.
What’s also unclear is how the local ordinances fit into the larger picture.
None of Nebraska’s local jurisdictions that have adopted abortion prohibitions are home to abortion providers — nor are they situated in counties that have abortion clinics. As of 2017, 97% of Nebraska’s 93 counties had no clinics that provided abortions, according to the Guttmacher Institute, a public policy institute that supports abortion rights.
Further, constitutional law professors contacted by The World-Herald did not offer a clear path forward for enforcing the ordinances, even if the Supreme Court overturns Roe v. Wade.
The local ordinances in Nebraska are part of the broader “Sanctuary Cities for the Unborn” initiative led by anti-abortion activist Mark Lee Dickson. The initiative has backed the passage of dozens of these ordinances, the vast majority in Texas.
Dickson has traveled across Texas lobbying towns to ban abortion over the past two years, the Washington Post and the New York Times have reported, and the approach he champions is at the heart of the state’s law banning abortions after roughly six weeks.
The first such ordinance passed in June 2019 in Waskom, Texas, with many more cities and towns to follow. In all, 42 cities and towns have passed them, including one that has since recanted theirs, according to data from Dickson. Hayes Center and Blue Hill were numbers 24 and 25 on his list, and the first localities outside of Texas to pass ordinances. Two Ohio cities have since passed ordinances.
The two Nebraska ordinances are not identical, but both seek to outlaw abortion locally and “aiding or abetting” abortion. They call abortion “a murderous act of violence” and assert that “abortion providers and their enablers should be regarded as murderers and treated and ostracized as such.” Both also declare abortion-inducing medication “contraband.”
The Hayes Center ordinance includes that violators will be subject to a $500 fine, and both ordinances state that a penalty can’t be imposed on “the mother of the unborn child that has been aborted.”
The Nebraska Attorney General’s Office is aware of the ordinances, according to spokesperson Suzanne Gage, but “has expressed no opinion on their validity.”
“Local governments have their own legal counsel; the Attorney General does not provide legal advice to local government entities,” Gage wrote in an email. “There is no basis for us to issue an opinion, and we do not expect to do so.”
Dickson told The World-Herald that places like Hayes Center and Blue Hill aren’t violating the Constitution by passing these bans, and he insists that the bans are enforceable. He points to what happened in Lubbock, Texas, as a success story. Lubbock is the biggest city to pass one of the ordinances, at roughly 254,000 people. It was also the first to have an abortion provider within the city limits, according to the Texas Tribune.
Voters there passed the ban in May, Planned Parenthood sued to block it and a federal judge dismissed the lawsuit.
“In federal court, we survived a challenge,” Dickson said.
But Eric Berger, a law professor at the University of Nebraska-Lincoln with expertise in U.S. constitutional law, said a local ordinance outlawing abortion is “clearly unconstitutional” under current constitutional doctrine.
However, he wrote in an email, a majority of justices in oral arguments this past week seemed inclined to cut back on the right to abortion or overrule Roe v. Wade and Planned Parenthood v. Casey entirely.
“If the Court were to overrule Roe and Casey, then a local ordinance outlawing abortion would not violate the U.S. Constitution,” he wrote.
But there would still be a question under state constitutional law — an area of expertise for UNL law professors Jonathan Marshfield and Anthony Schutz.
“I think that the enforceability of an ordinance like this is far-fetched,” Schutz said.
Villages and cities across the state, aside from Omaha and Lincoln, can only regulate areas the state has explicitly authorized them to regulate, they said, and abortion isn’t explicitly one of those areas.
“The village can’t do anything that the state hasn’t specifically empowered it to do,” Schutz said.
The Hayes Center ordinance cites a state law that allows village boards to pass ordinances “to maintain the peace, good government, and welfare of the village and its trade and commerce.”
Even if that could be interpreted to include abortion — which Schutz called a “difficult proposition” — the village still can’t pass ordinances that conflict with state law.
Then the question would become whether state law conflicts with the local ordinance. If it does, Marshfield said, the state statute prevails.
“There’s a pretty big question of whether, under the existing division of power between villages and the unicameral, whether or not villages ever have authority to regulate abortion,” Marshfield said.
Each city with an ordinance, Dickson said, receives a letter from attorney Jonathan F. Mitchell, promising legal representation if they’re sued, at no cost to taxpayers. The New York Times has credited Mitchell, a former clerk for Justice Antonin Scalia and former Texas solicitor general, as “the conceptual force behind” Texas’ restrictive new abortion law that puts enforcement in the hands of private citizens.
Public records show Mitchell sent such a letter to the mayor and City Council of Curtis in October.
That letter raised a red flag for Scout Richters, legal and policy counsel at the ACLU of Nebraska. The ACLU has been monitoring the local ordinances and is “exploring all options, including litigation,” she said.
“The bottom line is that these towns and villages can’t outlaw or criminalize abortion or override any fundamental right, for that matter,” she said, mentioning gun rights and free speech as other such rights.
While the ACLU believes these ordinances serve as “political fodder,” cause confusion and could potentially “chill people from exercising rights,” Richters also called them a distraction from the more immediate threat of action at the state level.
The ACLU shared public records with The World-Herald that included Mitchell’s letter. In the same records, a Curtis official expressed doubts whether an ordinance there would have an effect.
“Personally I am against it (abortion) however I am not sure that a city can legally legislate against it either so it’s more for show than it is substantial in nature,” city administrator Andrew Lee wrote in a message to a journalist.
Lee told The World-Herald that his reservations were tied to uncertainty around whether the ordinance could withstand scrutiny. The city attorney is looking into it, he said, and will issue a written opinion by Wednesday, when the board is scheduled to take a final vote.
But Richters interpreted the message differently: “Even proponents in these villages are acknowledging that they’re just for show, it’s just to send a political message,” she said.
Marion Miner of the Nebraska Catholic Conference said the ordinances make a statement. He thinks some of the people behind the ordinances have been working on and watching the abortion debate for decades.
“The big takeaway is: This is an opportunity for people to feel like they’re empowered to do something,” he said. “And whether that’s to make a statement or, hopefully, to be part of something bigger, it’s their opportunity to do something that they think is really important and that they haven’t had very many opportunities to weigh in on.”