He Voted to Ban ‘Abortion Trafficking’ — But Doesn’t ‘Know Why It Was Necessary’
Interstate 20, one of the nation’s major highways, stretches like a constellation across the South, connecting the cities of Columbia, Atlanta, Birmingham, Jackson, Shreveport, and Dallas-Fort Worth, before ending in a fork with Interstate 10 in West Texas, en route to New Mexico.
On its way through Texas, I-20 cuts straight across a small, sparsely populated square on the map: Mitchell County. On an average day, more than double the number of people who live in Mitchell County (population: 8,943) pass through it on the interstate. Two other thoroughfares — Route 84, which stretches from Georgia to Colorado, and State Highway 208 — also run through the tiny Texas territory.
In July, Mitchell became the first county in Texas to pass a measure declaring it a crime for any person seeking an abortion to do so using a road that runs through it. The ordinance — adopted unanimously by four men who serve on the county commission — declares it illegal to “knowingly transport any individual for the purpose of providing or obtaining an elective abortion, regardless of where the elective abortion will occur” if the trip “begins, ends, or passes through the unincorporated area of Mitchell County.” Supporters call it a prohibition on “abortion trafficking.” But even officials who voted for the ordinance aren’t sure it can actually be enforced.
In the past year, as abortion was outlawed or severely restricted in 24 American states, anti-abortion lawyers began turning their attention to a new challenge: making it as difficult as possible for women to leave those states to obtain abortions elsewhere. Idaho was the first state to pass an abortion “trafficking” law, punishable by two years in prison. (Advocates have sued over that law, claiming it infringes on the right to interstate travel, but it currently remains in effect.) That law was modeled on a bill from the National Right to Life; another anti-abortion legal advocacy group, the Thomas More Society, has discussed similar template laws.
At the forefront of similar efforts in the state of Texas are Mark Lee Dickson, the pastor and director for the Right to Life East Texas, and Jonathan Mitchell, former solicitor general and the architect of Senate Bill 8, Texas’ abortion bounty law.
In the past two years, Mitchell has filed S.B. 8-related petitions against individuals who assisted Texans traveling out of state for abortions, including abortion funds that raise money to help women pay for out-of-state travel, the head of a law firm that pledged to cover abortion-related travel costs for its employees, as well as a New Mexico abortion provider who has cared for Texas patients.
Before he helped write S.B. 8, Mitchell pushed for an ordinance designed to prevent an abortion clinic from opening in the city of Waskom, Texas. Waskom passed a resolution declaring it the first “Sanctuary City for the Unborn.” More than 50 cities or counties in Texas have since ratified similar resolutions.
Now, Mitchell and Dickson are working to advance “trafficking” ordinances that specifically target Texas’ roadways. “If anyone is using the roads — or the runways — for the purpose of abortion trafficking, and if that is discovered then the person who is involved in that act of abortion trafficking … they can be sued into oblivion,” Dickson tells Rolling Stone.
The ordinance passed by Mitchell County includes the same private enforcement mechanism as S.B. 8 and it targets the same activity — helping someone obtain an abortion — but instead of applying to abortions that take place after a detectable heartbeat, it applies to abortions at stage post-conception. (Like S.B. 8, the ordinances cannot be used to target the pregnant person herself.)
“We’re just looking at every way to close off any loophole imaginable,” Dickson says. Since it passed in Mitchell County in July, a similar ordinance was also adopted in Goliad County. Two other Texas counties — Llano and Mason — have also considered the proposal.
Dennis Jones, one of four Mitchell County commissioners who voted to approve the resolution, tells Rolling Stone the county was united around the idea of becoming one of Dickson’s “sanctuary” counties, but he said the clause prohibiting abortion “trafficking” was an afterthought.
“All we wanted to do was keep the abortion clinics out of Mitchell County,” Jones says. (That was a hypothetical concern: No one was seeking to open a clinic in the county.) When the commission was given a draft of the ordinance, Jones says, it included the language about the highways. “I don’t know why it was necessary; it was just part of the bill that was brought in front of us,” Jones adds.
Jones says he is not a lawyer, or a career politician — his day job is an equipment operator: “maintainers, loaders, rollers, dump trucks” — but he doesn’t see how the “trafficking” element of the ordinance could ever be enforced. “Unless they’ve got a billboard on top of the car, who’s gonna know they’re going somewhere to get an abortion?” Jones asked. “It’s unenforceable.”
Even if it were enforceable, Jones adds, “We don’t even have enough law enforcement here to take care of the business here in Mitchell County. We’re a very, very small county; we’re not wealthy by any means. (Asked If he thought the ordinance should be enforced, Jones — who, again, voted for the ordinance — said no: “I don’t. I don’t feel that that’s our place,” he says.)
A legal expert consulted by Rolling Stone agreed with Jones. That person pointed out two distinct legal issues. First is the private enforcement mechanism copied from S.B. 8 (i.e., citizens suing other citizens to enforce the law): Three separate Texas judges have signaled the mechanism is unconstitutional. (All three of those cases are still working their way through the court system.) Second, the ordinances challenge an individual’s right to travel freely — efforts Justice Brett Kavanaugh warned against when he voted to strike down Roe v. Wade last year.
Dickson, of course, insists the ordinance is enforceable; he shared with Rolling Stone a letter signed by 20 members of the Texas legislature who agreed. (The ordinance also prohibits transport of abortion medication through the county.)
In a recent interview with The Washington Post, Neesha Davé, executive director of the Lilith Fund, a Texas-based abortion fund, made the point that, at the end of the day, it is not the practicality of these ordinances that matter. “The purpose of these laws is not to meaningfully enforce them. It’s the fear that’s the point. It’s the confusion that’s the point,” Davé said.
In the meantime, public opinion — even in Texas — may be turning against Dickson and Mitchell. On Monday, the Mason County Commission voted 3-0 to take no action on a proposed ordinance. Dickson attributed the ordinance’s failure to the persuasive argument of a local lawyer, James Allison, who seemed to convince commissioners they lacked the authority to enforce it. On Tuesday, the city of Chandler, Texas, voted down on a similar ordinance too, on the advice of the city attorney and city manager who both opposed it.
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