The answer is no, at least formally. Laws enacted by a right-wing state government apply to all state residents, of course, even in the left-wing enclaves. If Florida passes a full abortion ban, Miami is bound by it. The same goes for college towns in red states like Iowa and Nebraska. And the same for Austin, the very blue capital of solidly red Texas.
Some Austinites don’t like that, viewing themselves as an oasis of progressivism in a conservative state. And if city lawmakers can figure out a way to keep abortion legal — kind of — within city limits, it’ll eliminate the key deterrent to the practice in a post-Roe America. If Roe falls and red states move quickly to ban abortion entirely, women who live there may need to travel hundreds of miles before finding a clinic that can serve them. Some won’t be able to afford the trip and will resolve to carry their babies to term instead. But if blue cities continue to make abortion functionally legal, women won’t need to travel far after all. Just to the nearest liberal outpost in their own home state.
One Austin city council member is thinking ahead to the end of Roe and the implementation of Texas’s “trigger” ban on abortion that will follow soon after. He can’t stop that law from taking effect.
But what if he can all but prevent local police from enforcing it?
Councilmember Chito Vela is proposing a resolution that would direct the city’s police department to make criminal enforcement, arrest and investigation of abortions its lowest priority and restrict city funds and city staff from being used to investigate, catalogue or report suspected abortions…
A city of Austin spokesperson said in a statement that “the city is prepared to take the steps necessary to implement this resolution upon passage by City Council.” The council passed a similar measure in 2020 that effectively decriminalized marijuana by ending arrests and fines for low-level possession, which the police department has followed…
“The police do not want to be in the middle of this controversy. The police right now in Austin are struggling with staffing,” Vela said. “I don’t think the police want to dedicate resources to these types of, what I would call, ‘political crimes.’”
It’s true that Austin PD has issues with staffing, thanks in part to the Austin city council having slashed their budget during “defund the police” fever in 2020. That works out well for Vela and his ideological comrades, though: A force that’s straining to handle more urgent crimes will have little choice but to de-prioritize abortion, with or without a city resolution ordering them to do so.
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But if the resolution does pass, will it hold up to judicial scrutiny? Supporters are confident. “The City’s legal team has reviewed it to ensure compliance with state law, and she said it’s written in a way that would ‘stand up in court if needed,’” one council member told a local news station. Before pro-choicers conclude that their problems are solved, though, remember that Texas also passed S.B. 8 creating a private cause of action entitling anyone to sue a person who aids or abets an abortion for $10,000 in damages. In other words, there’s still a strong legal deterrent to operating an abortion clinic in Austin even if the local police are required by ordinance to look the other way.
On the other hand, S.B. 8 exempts pregnant women from being sued under the law as parties to their own abortions. It’s aimed only at providers. Which makes me wonder if Austin might end up as a black market hub for abortifacients like mifepristone and misoprostol, with women around the state driving into the city to obtain the drugs. If the cops are disinclined to look for illegal abortions and if it’s unclear whether women can be sued for taking the medication then Austin would be the safest place in Texas legally for a woman hellbent on aborting to do so.
Law enforcement doesn’t end with the police, either. Whether a person is charged with a crime is up to prosecutors, not to cops. Steve Descano, the D.A. in Fairfax County, Virginia, has already announced that he won’t charge people for carrying out abortions even if Glenn Youngkin and the state government move to make them illegal. His reasoning:
If Roe falls, many states will have to rely on an Orwellian regime to enforce blanket bans on abortion. Imagine, for instance, the trauma a woman would have to endure after a miscarriage if a prosecutor with a political ax to grind decided to pursue a criminal case against her. The grief of losing a pregnancy could be followed by a law enforcement interrogation about drug use. The police may root through her trash bins under the cover of darkness for empty bottles of liquor or beer. Her most private thoughts may be pored over by police officers wielding search warrants that grant them access to her text messages and emails with intimates.
Law enforcement may coerce the medical professionals who rendered treatment on one of her darkest days into revealing information she provided in confidence about her medical history. And her past partners may be hauled into police precincts to discuss her sex life. After this intrusive investigation, a prosecutor could stand in front of a grand jury and present deeply personal findings before encouraging those impaneled to criminalize a woman still racked with grief.
It’s true that prosecutors have discretion to charge or not charge individual suspects as they see fit, as Descano notes, but a blanket policy not to prosecute certain crimes isn’t “discretionary.” It’s effectively nullification of the will of the people as expressed by their elected representatives. Still, if the liberals of Fairfax County are prepared to reelect Descano rather than punish him for flouting state law, I’m not sure what recourse the state would have. Presumably abortion would remain functionally legal there — and the same in other blue cities like Austin, where liberal prosecutors will doubtless want to follow his lead.
There are things a state government can do about all this. A few years ago, in response to Austin’s government wanting to defund the police, Greg Abbott threatened to cut off the city’s access to its tax revenue as a result. I’d guess that similar tactics will be used if Austin goes through with Vela’s proposal. But I don’t know what can be done to compel a local D.A. to charge people with carrying out abortions short of appointing an attorney at the state level to bring those charges instead. Texas and other red states might need a new prosecutorial agency under the AG to hunt for illegal abortions in blue cities since the locals won’t be doing it for them.
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