For the purposes of this ordinance, the following definitions
shall apply:
The act of using, prescribing, administering, procuring,
or selling of any instrument, medicine, drug, or any other substance,
device, or means with the purpose to terminate the pregnancy of a
woman, with knowledge that the termination by any of those means will
with reasonable likelihood cause the death of an unborn child. The
term does not include:
Includes acts that aid or abet abortions by providing informational,
logistical, emotional, or physical support that would make someone
an accomplice to abortion under the principles of complicity set forth
in section 7.02 of the Texas Penal Code. The term does not include:
A corporation, organization, government or governmental subdivision
or agency, business trust, estate, trust, partnership, association,
or any other legal entity that exists for the purpose of aiding or
abetting elective abortions, and that pays for, reimburses, or subsidizes
in any way the costs associated with obtaining an elective abortion.
A person, corporation, organization, government or governmental
subdivision or agency, business trust, estate, trust, partnership,
association, or any other legal entity that performs elective abortions.
Includes mifepristone, misoprostol, and any drug or medication
that is used to terminate the life of an unborn child. The term does
not include:
Plan B, morning-after pills, intrauterine devices, or any other
type of contraception or emergency contraception; or
Drugs or medications that are possessed or distributed for a
purpose that does not include the termination of a pregnancy, such
as misoprostol that is possessed or distributed for the purpose of
treating stomach ulcers.
A person or entity who enters into with another person or
entity a legal relationship created or governed by at least one written
instrument, including a certificate of formation, a franchise agreement,
standards of affiliation, bylaws, or a license, that demonstrates:
Common ownership, management, or control between the parties
to the relationship;
A franchise granted by the person or entity to the affiliate;
or
The granting or extension of a license or other agreement authorizing
the affiliate to use the other person's or entity's brand
name, trademark, service mark, or other registered identification
mark.
Any abortion that is not performed or induced in response
to a medical emergency.
The fusion of a human spermatozoon with a human ovum.
Any information service, system, or access software provider
that provides or enables computer access by multiple users to a computer
server, including specifically a service or system that provides access
to the Internet and such systems operated or services offered by libraries
or educational institutions.
A life-threatening physical condition aggravated by, caused
by, or arising from a pregnancy that, as certified by a physician,
places the woman in danger of death or a serious risk of substantial
impairment of a major bodily function unless an abortion is performed.
An individual organism of the species Homo sapiens in any
stage of gestation from fertilization until live birth;
Include (but are not limited to) any person whose biological
sex is female, including any person with XX chromosomes and any person
with a uterus, regardless of any gender identity that the person attempts
to assert or claim.
(Ordinance 2022-38 adopted 12/13/2022)
(a)
It shall be unlawful for any person to procure or perform an elective
abortion of any type and at any stage of pregnancy in the city of
Odessa, Texas. The prohibition in this section extends to drug-induced
abortions in which any portion of the drug regimen is ingested in
the city of Odessa, Texas, and it applies regardless of where the
person who performs or procures the abortion is located.
(b)
It shall be unlawful for any person to knowingly aid or abet an abortion described in subsection (a). The prohibition in this section includes, but is not limited to, the following acts:
(1)
Knowingly providing transportation to or from an abortion provider;
(2)
Giving instructions over the telephone, the internet, or any
other medium of communication regarding self-administered abortion
or self-managed abortion, regardless of where the person giving the
instructions is located;
(3)
Offering or providing money, digital currency, or other resources
with the knowledge that it will be used to pay for, offset, or reimburse
the costs of an abortion or the costs associated with procuring an
abortion, including any type of donation to an abortion provider or
abortion fund that performs or aids or abets abortions in violation
of this section;
(4)
Performing or providing any type of work or services for an
abortion provider or abortion fund that performs or aids or abets
abortions in violation of this section, regardless of whether such
work or services is done on a paid, contract, or volunteer basis;
(5)
Coercing or pressuring a pregnant woman to have an abortion
against her will; and
(6)
Engaging in any conduct that would make one an accomplice to
an abortion performed in violation of this section under the principles
of complicity set forth in section 7.02 of the Texas Penal Code.
(c)
No provision of this section may be construed to prohibit any conduct
protected by the First Amendment of the U.S. Constitution, as made
applicable to state and local governments through the Supreme Court's
interpretation of the Fourteenth Amendment, or by article 1, section
8 of the Texas Constitution.
(d)
Under no circumstance may the mother of the unborn child that has
been aborted, or the pregnant woman who seeks to abort her unborn
child, be subject to prosecution or penalty under this section.
(e)
Notwithstanding any other law, the requirements of this section shall
be enforced exclusively through the private civil actions described
in Section 15-1-7. No direct or indirect enforcement of this section
may be taken or threatened by the city of Odessa, or by any officer
or employee of this city, by any means whatsoever, and no violation
of this section may be used to justify or trigger the enforcement
of any other law or any type of adverse consequence under any other
law, except as provided in Section 15-1-7. This section does not preclude
or limit the enforcement of any other law or regulation against conduct
that is independently prohibited by such other law or regulation,
and that would remain prohibited by such other law or regulation in
the absence of this section.
(Ordinance 2022-38 adopted 12/13/2022)
(a)
It is the policy of the city of Odessa to protect its unborn residents
from individuals and organizations that aid or abet the killing of
unborn children, and to protect the unborn from those who seek to
kill or otherwise harm them, to the maximum extent permissible under
state and federal law. The prohibitions in this section and chapter
shall apply extraterritorially to the maximum extent permitted by
the Constitution of the United States and the Texas Constitution.
(b)
Except as provided by Subsections (c), it shall be unlawful for any person to knowingly aid or abet an elective abortion performed on a resident of Odessa, Texas, or to attempt to aid or abet such an abortion, regardless of where the abortion is or will be performed. The prohibition in this subsection includes, but is not limited to:
(1)
Offering or knowingly providing transportation to or from an
abortion provider;
(2)
Giving instructions over the telephone, the internet, an interactive
computer service, or any other medium of communication regarding self-administered
or self-managed abortion or the means of obtaining elective abortions;
(3)
Offering, providing, or lending money, digital currency, resources,
or any other thing of value with the knowledge or intent that it will
be used to pay for, offset, or reimburse the costs of an elective
abortion or the costs associated with obtaining an elective abortion;
(4)
Providing or arranging for insurance coverage of an elective
abortion;
(5)
Offering or providing "abortion doula" services for an elective
abortion;
(6)
Providing referrals to an abortion provider for a woman seeking
an elective abortion;
(7)
Coercing, pressuring, or encouraging a pregnant woman to have
an elective abortion; and
(8)
Engaging in any conduct that would make one an accomplice to
an elective abortion under the principles of complicity set forth
in section 7.02 of the Texas Penal Code.
(c)
Notwithstanding any other law, subsection (b) does not prohibit:
(1)
Abortions performed or induced in response to a medical emergency,
or any conduct that aids or abets or attempts to aid or abet such
abortions;
(2)
Speech or conduct protected by the First Amendment of the United
States Constitution, as made applicable to the states through the
Supreme Court of the United States' interpretations of the Fourteenth
Amendment of the United States Constitution, or by article 1, section
8 of the Texas Constitution;
(3)
Conduct that the city of Odessa is forbidden to regulate under
federal or state law;
(4)
Conduct taken by a pregnant woman who aborts or seeks to abort
her unborn child;
(5)
The provision of basic public services, including fire and police
protection and utilities, by a governmental entity or a common carrier
to an abortion provider, an abortion fund, or an affiliate of an abortion
provider or abortion fund in the same manner as the entity provides
those services to the general public; and
(6)
Conduct taken at the behest of federal agencies, contractors,
or employees that are carrying out duties under federal law, if a
prohibition on that conduct would violate the doctrines of preemption
or intergovernmental immunity.
(d)
Notwithstanding any other law, the requirements of this section shall
be enforced exclusively through the private civil actions described
in Section 15-1-7. No direct or indirect enforcement of this section
may be taken or threatened by the city of Odessa, or by any officer
or employee of this city, by any means whatsoever, and no violation
of this section may be used to justify or trigger the enforcement
of any other law or any type of adverse consequence under any other
law, except as provided in Section 15-1-7. This section does not preclude
or limit the enforcement of any other law or regulation against conduct
that is independently prohibited by such other law or regulation,
and that would remain prohibited by such other law or regulation in
the absence of this section.
(Ordinance 2022-38 adopted 12/13/2022)
(a)
(b)
Notwithstanding any other law, subsection (a) does not prohibit:
(1)
Speech or conduct protected by the First Amendment of the United
States Constitution, as made applicable to the states through the
Supreme Court of the United States' interpretations of the Fourteenth
Amendment of the United States Constitution, or by article 1, section
8 of the Texas Constitution;
(2)
Conduct that the city of Odessa is forbidden to regulate under
federal or state law;
(3)
Conduct taken by a pregnant woman who aborts or seeks to abort
her unborn child;
(4)
The possession, distribution, mailing, transporting, delivery,
or provision of abortion-inducing drugs for a purpose that does not
include termination of a pregnancy;
(5)
The possession of abortion-inducing drugs resulting from an
effort to entrap individuals or entities that violate this section;
and
(6)
Conduct taken at the behest of federal agencies, contractors,
or employees that are carrying out duties under federal law, if a
prohibition on that conduct would violate the doctrines of preemption
or intergovernmental immunity.
(c)
Notwithstanding any other law, the requirements of this section shall
be enforced exclusively through the private civil actions described
in Section 15-1-7. No direct or indirect enforcement of this section
may be taken or threatened by the city of Odessa, or by any officer
or employee of this city, by any means whatsoever, and no violation
of this section may be used to justify or trigger the enforcement
of any other law or any type of adverse consequence under any other
law, except as provided in Section 15-1-7. This section does not preclude
or limit the enforcement of any other law or regulation against conduct
that is independently prohibited by such other law or regulation,
and that would remain prohibited by such other law or regulation in
the absence of this section.
(Ordinance 2022-38 adopted 12/13/2022)
(a)
Except as provided by subsection (b), it shall be unlawful for any person to knowingly transport any individual for the purpose of prostitution or debauchery, or for any other immoral purpose, or attempt or conspire to do so. This section shall apply only if the transportation of such individual begins, ends, or passes through the City of Odessa, Texas.
(b)
It shall be unlawful for any person to knowingly aid or abet the conduct described in subsection (a). The prohibition in this section includes, but is not limited to, the following acts:
(c)
For the purposes of this section, the following definitions shall
apply:
(d)
Notwithstanding any other provision of law, this section shall not
apply to:
(1)
Speech or conduct protected by the First Amendment of the United
States Constitution, as made applicable to the states through the
Supreme Court of the United States' interpretations of the Fourteenth
Amendment of the United States Constitution, or by Article 1, Section
8 of the Texas Constitution;
(2)
Conduct that the City of Odessa is forbidden to regulate under
federal or state law;
(3)
Conduct taken by a pregnant woman who aborts or seeks to abort
her unborn child; and
(4)
Conduct taken at the behest of federal agencies, contractors,
or employees that are carrying out duties under federal law, if a
prohibition on that conduct would violate the doctrines of preemption
or intergovernmental immunity.
(e)
Notwithstanding any other law, the requirements of this section shall
be enforced exclusively through the private civil actions described
in Section 15-1-7. No direct or indirect enforcement of this section
may be taken or threatened by the city of Odessa, or by any officer
or employee of this city, by any means whatsoever, and no violation
of this section may be used to justify or trigger the enforcement
of any other law or any type of adverse consequence under any other
law, except as provided in Section 15-1-7. This section does not preclude
or limit the enforcement of any other law or regulation against conduct
that is independently prohibited by such other law or regulation,
and that would remain prohibited by such other law or regulation in
the absence of this section.
(f)
Under no circumstance may any penalty or punishment be imposed on
the individual who is transported or attempted to be transported in
violation of subsection(a).
(Ordinance 2022-38 adopted 12/13/2022)
(a)
No person, corporation, or entity that enters into a contract with
the city of Odessa or that receives any grant or funding from the
city of Odessa may:
(1)
Pay for, reimburse, or subsidize in any way the costs associated
with an elective abortion, regardless of the person upon whom the
elective abortion is performed, regardless of where the elective abortion
is performed, and regardless of the law of the jurisdiction in which
the elective abortion is performed, including by engaging in any of
the following acts:
(A)
Providing coverage of elective abortions as an employee benefit;
(B)
Paying for, reimbursing, or subsidizing the travel costs associated
with obtaining an elective abortion, or covering those costs as an
employee benefit;
(C)
Donating or lending money, digital currency, resources, or any
other thing of value to an abortion provider, abortion fund, or an
affiliate or an abortion provider, either directly or by laundering
the donation or loan through an intermediary;
(D)
Offering, providing, or lending money, digital currency, resources,
or any other thing of value with the knowledge that it will be used
to pay for, offset, or reimburse the costs of an elective abortion
or the costs associated with procuring an elective abortion;
(E)
Performing or providing any type of work or services for an
abortion provider, abortion fund, or an affiliate of an abortion provider,
regardless of whether such work or services is done on a paid, contract,
or volunteer basis, apart from the provision of basic public services,
including fire and police protection and utilities, by a governmental
entity or a common carrier to an abortion provider, an abortion fund,
or an affiliate of an abortion provider in the same manner as the
entity provides the services to the general public; or
(F)
Paying, offering to pay, or providing insurance that covers
the legal expenses or court judgments or settlements of those who
violate the abortion laws of the United States, or the abortion laws
of any state, local, or foreign jurisdiction;
(2)
Violate any of the abortion laws of the United States, any state
or local government, or any foreign jurisdiction, including but not
limited to:
(3)
Engage in any conduct that would make one an accomplice to an
elective abortion under the principles of complicity set forth in
section 7.02 of the Texas Penal Code; or
(4)
Use race or sex preferences of any type in employment, board
membership, or contracting decisions.
(Ordinance 2022-38 adopted 12/13/2022)
(a)
Any person, other than the city of Odessa, and any officer or employee
of the city, has standing to bring and may bring a civil action against
any person or entity that:
(1)
Violates any provision of Sections 15-1-2, 15-1-3, 15-1-4, 15-1-5,
or 15-1-6; or
(2)
Intends to violate any provision of Sections 15-1-2, 15-1-3,
15-1-4, 15-1-5, or 15-1-6. PROVIDED, that no lawsuit may be brought
under this section against a provider or user of an interactive computer
service if such a lawsuit would be preempted by 47 U.S.C. § 230(c).
(b)
If a claimant prevails in an action brought under this section, the
court shall award:
(1)
Injunctive relief sufficient to prevent the defendant from violating
Sections 15-1-2, 15-1-3, 15-1-4, 15-1-5, or 15-1-6;
(2)
Nominal and compensatory damages if the plaintiff has suffered
injury or harm from the defendant's conduct, including but not
limited to loss of consortium and emotional distress;
(3)
Statutory damages in an amount of not less than $10,000 for
each violation of Sections 15-1-2, 15-1-3, 15-1-4, 15-1-5, or 15-1-6;
and
(4)
Costs and attorney's fees.
(c)
Notwithstanding Subsection (b), a court may not award relief under Subsection (b)(3) or (b)(4) in response to a violation of Subsection (a)(1) if the defendant demonstrates that a court has already ordered the defendant to pay the full amount of statutory damages under Subsection (b)(3) in another action for that particular violation of Sections 15-1-2, 15-1-3, 15-1-4, 15-1-5, or 15-1-6.
(d)
Notwithstanding any other law, a person may bring an action under
this section not later than the sixth anniversary of the date the
cause of action accrues.
(e)
Notwithstanding any other law, the following are not a defense to
an action brought under this section:
(1)
Ignorance or mistake of law;
(2)
A defendant's belief that the requirements or provisions
of this ordinance are unconstitutional or were unconstitutional;
(3)
A defendant's reliance on any court decision that has been
vacated, reversed, or overruled on appeal or by a subsequent court,
even if that court decision had not been vacated, reversed, or overruled
when the cause of action accrued;
(4)
A defendant's reliance on any state or federal court decision
that is not binding on the court in which the action has been brought;
(5)
A defendant's reliance on any federal statute, agency rule
or action, or treaty that has been repealed, superseded, or declared
invalid or unconstitutional, even if that federal statute, agency
rule or action, or treaty had not been repealed, superseded, or declared
invalid or unconstitutional when the cause of action accrued;
(6)
Non-mutual issue preclusion or non-mutual claim preclusion;
(7)
The consent of the plaintiff or the unborn child's mother
to the abortion;
(8)
Contributory or comparative negligence;
(9)
Assumption of risk; and
(10)
Any claim that the enforcement of this chapter or the imposition
of civil liability against the defendant will violate the constitutional
rights of third parties, except as provided by Section 15-1-8.
(f)
It is an affirmative defense if a person sued under this section:
(1)
Was unaware that it was engaged in conduct described in Sections
15-1-2, 15-1-3, 15-1-4, 15-1-5, or 15-1-6; and
(2)
Took every reasonable precaution to ensure that it would not
violate Sections 15-1-2, 15-1-3, 15-1-4, 15-1-5, or 15-1-6.
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The defendant has the burden of proving an affirmative defense
under this Subsection by a preponderance of the evidence.
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(g)
This section may not be construed to impose liability on any speech
or conduct protected by the First Amendment of the United States Constitution,
as made applicable to the states through the United States Supreme
Court's interpretation of the Fourteenth Amendment of the United
States Constitution, or by article 1, section 8 of the Texas Constitution.
(h)
Notwithstanding any other law, neither the city of Odessa, nor any
officer or employee of the city of Odessa may:
(1)
Act in concert or participation with anyone who brings suit
under this section;
(2)
Establish or attempt to establish any type of agency or fiduciary
relationship with a person who brings suit under this section;
(3)
Make any attempt to control or influence a person's decision
to bring suit under this section or that person's conduct of
the litigation; or
(4)
Intervene in any action brought under this section.
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This subsection does not prohibit a person or entity described
by this subsection from filing an amicus curiae brief in the action,
so long as that person or entity does not act in concert or participation
with the plaintiff or plaintiffs who sue under this section or violate
any provision of Subsection (h)(1)-(4).
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(i)
Notwithstanding any other law, a court may not award costs or attorneys'
fees to a litigant who is sued under this section.
(j)
Notwithstanding any other law, a civil action under this section
may not be brought:
(1)
Against the woman upon whom the abortion was performed or induced
or attempted to be performed or induced in violation of this ordinance,
or against a pregnant woman who intends or seeks to abort her unborn
child in violation of this ordinance;
(2)
Against any person or entity that performs, aids or abets, or
attempts or intends to perform or aid or abet an abortion at the behest
of federal agencies, contractors, or employees that are carrying out
duties under federal law, if a prohibition on that abortion would
violate the doctrines of preemption or intergovernmental immunity;
(3)
Against any common carrier that transports a pregnant woman
to an abortion provider, if the common carrier is unaware that the
woman intends to abort her unborn child; or
(4)
By any person who impregnated a woman seeking an abortion through
an act of rape, sexual assault, or incest, or by anyone who acts in
concert or participation with such a person.
(k)
Notwithstanding any other law, a civil action under this section
may be brought only in the district courts of the state of Texas and
may not be considered by any municipal or county court.
(Ordinance 2022-38 adopted 12/13/2022)
(a)
A defendant against whom an action is brought under Section 15-1-7
may assert an affirmative defense to liability under this section
if:
(1)
The imposition of civil liability on the defendant will violate
constitutional or federally protected rights that belong to the defendant
personally; or
(b)
Nothing in this section or chapter shall limit or preclude a defendant
from asserting the unconstitutionality of any provision or application
of this chapter as a defense to liability under Section 15-1-7, or
from asserting any other defense that might be available under any
other source of law.
(c)
Notwithstanding any other law, no court may apply the law of another
state or jurisdiction to any civil action brought under Section 15-1-7,
unless article VI of the Constitution of the United States or the
constitution or laws of the State of Texas compels it to do so.
(Ordinance 2022-38 adopted 12/13/2022)
(a)
Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the
context of determining the severability of a state statute regulating
abortion the Supreme Court of the United States held that an explicit
statement of legislative intent is controlling, it is the intent of
the city that every provision, section, subsection, sentence, clause,
phrase, or word in this chapter, and every application of the provisions
in this chapter to every person, group of persons, or circumstances,
are severable from each other.
(b)
If any application of any provision in this chapter to any person,
group of persons, or circumstances is found by a court to be invalid,
preempted, or unconstitutional, for any reason whatsoever, then the
remaining applications of that provision to all other persons and
circumstances shall be severed and preserved and shall remain in effect.
All constitutionally valid applications of the provisions in this
chapter shall be severed from any applications that a court finds
to be invalid, preempted, unconstitutional, because it is the city's
intent and priority that every single valid application of every provision
in this chapter be allowed to stand alone.
(c)
The city further declares that it would have enacted this chapter,
and each provision, section, subsection, sentence, clause, phrase,
or word, and all constitutional applications of the provisions of
this chapter, irrespective of the fact that any provision, section,
subsection, sentence, clause, phrase, or word, or applications of
this chapter were to be declared invalid, preempted, or unconstitutional.
(e)
No court may decline to enforce the severability requirements of Subsections (a), (b), (c), and (d) on the ground that severance would "rewrite" the ordinance or involve the court in legislative or lawmaking activity. A court that declines to enforce or enjoins a state or city official from enforcing a statute or ordinance is never rewriting a statute or engaging in legislative or lawmaking activity, as the statute or ordinance continues to contain the same words as before the court's decision. A judicial injunction or declaration of unconstitutionality:
(1)
Is nothing more than an edict prohibiting enforcement that may
subsequently be vacated by a later court if that court has a different
understanding of the law;
(2)
Is not a formal amendment of the language in a statute or ordinance;
and
(3)
No more rewrites a statute or ordinance than a decision by the
executive not to enforce a duly enacted statute or ordinance in a
limited and defined set of circumstances.
(f)
If any state or federal court disregards any of the severability requirements in Subsections (a), (b), (c), (d), or (e), and declares or finds any provision of this chapter facially invalid, preempted, or unconstitutional, when there are discrete applications of that provision can be enforced against a person, group of persons, or circumstances without violating federal or state law, then that provision shall be interpreted, as a matter of city law, as if the city had enacted a provision limited to the persons, group of persons, or circumstances for which the provision's application will not violate federal or state law, and every court shall adopt this saving construction of that provision until the court ruling that pronounced the provision facially invalid, preempted, or unconstitutional is vacated or overruled.
(Ordinance 2022-38 adopted 12/13/2022)
