ARTICLE 8.06 ABORTION

For the purposes of this article, the following definitions shall apply:

The act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant. The term does not include birth-control devices or oral contraceptives, and it does not include Plan B, morning-after pills, or emergency contraception. An act is not an abortion if the act is done with the intent to:

(1)

Save the life or preserve the health of an unborn child;

(2)

Remove a dead, unborn child whose death was caused by accidental miscarriage; or

(3)

Remove an ectopic pregnancy.

Abortion-inducing drugs.

Includes mifepristone, misoprostol, and any drug or medication that is used to terminate the life of an unborn child. The term does not include birth-control devices or oral contraceptives, and it does not include Plan B, morning-after pills, or emergency contraception. The term also does not include drugs or medications that are possessed or distributed for a purpose that does not include the termination of a pregnancy.

Unborn child.

A natural person from the moment of conception who has not yet completely left the womb.

(Ordinance 22-3739 adopted 11/8/2022)

§ 8.06.002 Abortion prohibited.

(a)

It shall be unlawful for any person to procure or perform an abortion of any type and at any stage of pregnancy in the city.

(b)

It shall be unlawful for any person to knowingly aid or abet an abortion that occurs in the city. This section does not prohibit referring a patient to have an abortion which takes place outside the city limits. 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;

(3)

Providing money with the knowledge that it will be used to pay for an abortion or the costs associated with procuring an abortion;

(4)

Providing or arranging for insurance coverage of an abortion;

(5)

Providing "abortion doula" services; and

(6)

Coercing or pressuring a pregnant mother to have an abortion against her will.

(c)

It shall be an affirmative defense to the unlawful acts described in subsections (a) and (b) if the abortion was in response to 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. The defendant shall have the burden of proving this affirmative defense by a preponderance of the evidence.

(d)

It shall be unlawful for any person to possess or distribute abortion-inducing drugs in the city.

(e)

No provision of this section may be construed to prohibit any action which occurs outside of the jurisdiction of the city.

(f)

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.

(g)

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.

(h)

Whoever violates this section shall be subject to the maximum penalty permitted under state law for the violation of a municipal ordinance governing public health, and each violation shall constitute a separate offense.

(i)

Neither the city, nor any of its officers or employees, nor any district or county attorney, nor any executive or administrative officer or employee of any state or local governmental entity, may impose or threaten to impose the penalty described in subsection (h) unless and until:

(1)

The Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992), and permits states and municipalities to punish anyone who violates an abortion prohibition;

(2)

A state or federal court enters a declaratory judgment or otherwise rules that the imposition or threatened imposition of this penalty upon the particular person, corporation, or entity that committed the unlawful act described in subsection (h) will not impose an "undue burden" on women seeking abortions; or

(3)

A state or federal court enters a declaratory judgment or otherwise rules that the person, corporation, or entity that committed the unlawful act described in subsection (h) lacks third-party standing to assert the rights of women seeking abortions in court.

(j)

The penalty provided in subsection (h) may not be imposed or threatened against any individual or entity if a previous decision of the Supreme Court of the United States established that the conduct of that individual or entity was constitutionally protected at the time it occurred.

(k)

The nonimposition of the penalties described in subsection (h) does not in any way legalize the conduct that has been outlawed by this section, and it does not in any way limit or affect the availability of the private-enforcement remedies established in section 8.06.006, or the criminal penalties for abortion set forth in article 4512.1 of the Revised Civil Statutes and sections 1.07 and 19.02(b) of the Texas Penal Code. Abortion remains and is to be regarded as an illegal act under city law and a criminal act under state law, except when abortion is necessary to save the life of the mother. Abortion remains outlawed under both city and state law, despite the temporary and partial inability of city and state officials to punish those who violate the abortion laws on account of the Supreme Court's decision making.

(l)

Mistake of law shall not be a defense to the penalty established subsection (h).

(Ordinance 22-3739 adopted 11/8/2022)

§ 8.06.003 Abortion coverage prohibited in employer-provided health insurance or benefits.

(a)

It shall be unlawful for any employer in the city, and for any person acting on that employer's behalf, to offer, provide, or arrange for coverage of abortion in any health-insurance policy or plan, flexible spending account, health savings account, or any other benefit provided to its employees, except for abortions performed in response to 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.

(b)

(c)

Any official of the city, who becomes aware that an employer is aiding or abetting abortions by providing coverage of abortions in an employee-benefits package shall report that employer to the district attorney of the county, and to all other district attorneys with jurisdiction over that employer, for criminal prosecution under article 4512.2 of the Revised Civil Statutes and section 7.02 of the Texas Penal Code.

(Ordinance 22-3739 adopted 11/8/2022)

§ 8.06.004 Abortions performed outside city.

(a)

It is the policy of the city 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.

(b)

Except as provided by subsections (c), (d), (e), and (f), it shall be unlawful for any person to knowingly aid or abet an abortion performed on a resident of the city, 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, or any other medium of communication regarding self-administered abortion;

(3)

Offering or providing money 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;

(4)

Providing or arranging for insurance coverage of an abortion;

(5)

Offering or providing "abortion doula" services;

(6)

Providing referrals to an abortion provider;

(7)

Coercing or pressuring a pregnant mother to have an abortion; and

(8)

Engaging in any of the conduct that would make one an accomplice to abortion under section 7.02 of the Texas Penal Code.

(c)

This section may not be construed to impose civil or criminal 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.

(d)

This section may not be construed to prohibit conduct that the city is forbidden to prohibit or regulate under state or federal law.

(e)

It shall be an affirmative defense if the unlawful acts described in subsection (b) were taken in response to 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. The defendant shall have the burden of proving this affirmative defense by a preponderance of the evidence.

(f)

Under no circumstance may the woman upon whom the abortion was performed, or the pregnant woman who seeks to abort her unborn child, be subject to prosecution or penalty under this section.

A state or federal court enters a declaratory judgment or otherwise rules that the imposition or threatened imposition of this penalty upon the particular person, corporation, or entity that committed the unlawful act described in subsection (g) will not impose an "undue burden" on women seeking abortions; or

(3)

A state or federal court enters a declaratory judgment or otherwise rules that the person, corporation, or entity that committed the unlawful act described in subsection (g) lacks third-party standing to assert the rights of women seeking abortions in court.

(i)

The penalty provided in subsection (g) may not be imposed or threatened against any individual or entity if a previous decision of the Supreme Court of the United States established that the conduct of that individual or entity was constitutionally protected at the time it occurred.

(j)

The nonimposition of the penalties described in subsection (g) does not in any way legalize the conduct that has been outlawed by this section, and it does not in any way limit or affect the availability of the private-enforcement remedies established in section 8.06.006. Abortion remains and is to be regarded as an illegal act under city law and a criminal act under state law, except when abortion is necessary to save the life of the mother.

(k)

Mistake of law shall not be a defense to the penalty established subsection (g).

(l)

Any official of the city who becomes aware that an individual or organization is aiding or abetting abortions performed in the state by engaging in the conduct described in subsection (b) shall report that individual or organization to the district attorney of the county, or to the district attorneys with jurisdiction over that individual or organization, for criminal prosecution under article 4512.2 of the Revised Civil Statutes and section 7.02 of the Texas Penal Code.

(Ordinance 22-3739 adopted 11/8/2022)

§ 8.06.005 Abortions performed in violation of state law.

(a)

It is the policy of the city to ensure that the state abortion laws are enforced to the maximum possible extent consistent with the Constitution and existing Supreme Court doctrine.

(b)

Except as provided by subsections (d), (e), (f), and (g), it shall be unlawful for any person to perform an abortion in violation of any statute enacted by the state legislature, including article 4512.1 of the Revised Civil Statutes, as well as sections 171.0031(a)(1) and 245.010(a) of the Texas Health and Safety Code.

(c)

Except as provided by subsections (d), (e), (f), and (g), it shall be unlawful for any person to knowingly aid or abet an abortion performed in violation of any statute enacted by the state legislature, including article 4512.1 of the Revised Civil Statutes, as well as sections 171.0031(a)(1) and 245.010(a) of the Texas Health and Safety Code. 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, or any other medium of communication regarding self-administered abortion;

(3)

Offering or providing money 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;

(4)

Providing or arranging for insurance coverage of an abortion;

(5)

Offering or providing "abortion doula" services;

(6)

Providing referrals to an abortion provider;

(7)

Coercing or pressuring a pregnant mother to have an abortion; and

(8)

Engaging in conduct that makes one an accomplice to abortion under section 7.02 of the Texas Penal Code.

(d)

This subsection may not be construed to impose civil or criminal 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.

(e)

This section may not be construed to prohibit conduct that the city is forbidden to prohibit or regulate under state or federal law.

(f)

(g)

Under no circumstance may the woman upon whom the abortion was performed, or the pregnant woman who seeks to abort her unborn child, be subject to prosecution or penalty under this section.

Mistake of law shall not be a defense to the penalty established subsection (h).

(m)

Any official of the city who becomes aware that an individual or organization is performing or aiding or abetting abortions in violation of in violation of any statute enacted by the state legislature, including articles 4512.1 and 4512.2 of the Revised Civil Statutes, as well as sections 171.0031(a)(1) and 245.010(a) of the Texas Health and Safety Code, shall report that individual or organization to the district attorney of the county, or to the district attorneys with jurisdiction over that individual or organization, for criminal prosecution under articles 4512.1 and 4512.2 of the Revised Civil Statutes and section 7.02 of the Texas Penal Code.

(Ordinance 22-3739 adopted 11/8/2022)

§ 8.06.006 Private right of action.

(a)

Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action in state court against any person who violates or intends to violate sections 8.06.002, 8.06.003, 8.06.004, or 8.06.005.

(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 section 8.06.002, 8.06.003, 8.06.004, or 8.06.005 in the future;

(2)

Statutory damages in an amount of not less than $10,000.00 for each violation of section 8.06.002, 8.06.003, 8.06.004, or 8.06.005 that the defendant committed; and

(3)

Costs and attorney's fees.

(c)

Notwithstanding subsection (b), a court may not award relief under this section if the defendant demonstrates that the defendant previously paid statutory damages in a previous action for the particular conduct that violated section 8.06.002, 8.06.003, 8.06.004, or 8.06.005.

(d)

There is no statute of limitations for an action brought under this section.

(e)

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 of this section, or the requirements of sections 8.06.002, 8.06.003, 8.06.004, or 8.06.005, are unconstitutional or were unconstitutional;

(3)

A defendant's reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates sections 8.06.002, 8.06.003, 8.06.004, or 8.06.005;

(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)

Nonmutual issue preclusion or nonmutual claim preclusion;

(6)

The consent of the unborn child's mother to the abortion; or

(7)

Any claim that the enforcement of sections 8.06.002, 8.06.003, 8.06.004, or 8.06.005 or the imposition of civil liability against the defendant will violate the constitutional rights of third parties, except as provided by section 8.06.007.

(f)

An action under this section must be brought in state court and not in the local or municipal courts;

(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)

Neither the city nor any state or local official may intervene in an action brought under this section. This subsection does not prohibit a person or entity described by this subsection from filing an amicus curiae brief in the action.

(i)

A civil action under this section may not be brought by any person who impregnated the abortion patient through an act of rape, sexual assault, incest, or any other unlawful act.

(j)

Under no circumstance may a civil action under this section be brought against the mother of the unborn child that has been aborted, or the pregnant woman who seeks to abort her unborn child.

(Ordinance 22-3739 adopted 11/8/2022)

§ 8.06.007 Civil liability: undue burden defense.

(a)

A defendant against whom an action is brought under section 8.06.006 does not have standing to assert the rights of women seeking an abortion as a defense to liability under that section unless:

(1)

The United States Supreme Court or the Supreme Court of Texas holds that the courts of this state must confer standing on that defendant to assert the third-party rights of women seeking an abortion in state court as a matter of federal or state constitutional law; or

(2)

The defendant has standing to assert the rights of women seeking an abortion under the tests for third-party standing established by the United States Supreme Court.

(b)

A defendant in an action brought under section 8.06.006 may assert an affirmative defense to liability under this section if:

(1)

The defendant has standing to assert the third-party rights of a woman or group of women seeking an abortion in accordance with subsection (a); and

(2)

The defendant demonstrates that the relief sought by the claimant will impose an undue burden on that woman or that group of women seeking an abortion, or otherwise violate the rights of women seeking abortions under the United States Constitution.

(c)

A court may not find an "undue burden" under subsection (b) unless the defendant introduces evidence proving that:

(1)

An award of relief will prevent a woman or a group of women from obtaining an abortion; or

(2)

An award of relief will place a substantial obstacle in the path of a woman or a group of women who are seeking an abortion.

(d)

A defendant may not establish an "undue burden" under this section by:

(1)

Merely demonstrating that an award of relief will prevent women from obtaining support or assistance, financial or otherwise, from others in their effort to obtain an abortion; or

(2)

Arguing or attempting to demonstrate that an award of relief against other defendants or other potential defendants will impose an undue burden on women seeking an abortion.

(e)

The affirmative defense under subsection (b) is not available if the United States Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), or Planned Parenthood v. Casey, 505 U.S. 833 (1992).

(f)

Nothing in this section shall in any way limit or preclude a defendant from asserting the defendant's personal constitutional rights as a defense to liability under section 8.06.006, and a court may not award relief under section 8.06.006 if the conduct for which the defendant has been sued was an exercise of state or federal constitutional rights that personally belong to the defendant.

(Ordinance 22-3739 adopted 11/8/2022)

§ 8.06.008 Severability.

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, the provisions and applications of this article shall be severable as follows:

(1)

It is the intent of the city council that every section, provision, subsection, sentence, clause, phrase, or word in this article, and every application of the provisions in this chapter, are severable from each other. If any application of any provision in this article to any person, group of persons, or circumstances is found by a court to be invalid or unconstitutional, then the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected. All constitutionally valid applications of the provisions in this article shall be severed from any applications that a court finds to be invalid, leaving the valid applications in force, because it is the city council's intent and priority that the valid applications be allowed to stand alone. Even if a reviewing court finds a provision of this article to impose an undue burden in a large or substantial fraction of relevant cases, the applications that do not present an undue burden shall be severed from the remaining applications and shall remain in force, and shall be treated as if the city council had enacted a provision limited to the persons, group of persons, or circumstances for which the provision's application do not present an undue burden. The city council further declares that it would have enacted this article, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of this article, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this article were to be declared unconstitutional or to represent an undue burden.

(2)

If any court declares or finds a provision in this article facially unconstitutional, when there are discrete applications of that provision that can be enforced against a person, group of persons, or circumstances without violating the Constitution, then those applications shall be severed from all remaining applications of the provision, and the provision shall be interpreted, as a matter of city law, as if the city council had enacted a provision limited to the persons, group of persons, or circumstances for which the provision's application will not violate the Constitution.

(3)

If any provision of this article is found by any court to be unconstitutionally vague, then the applications of that provision that do not present constitutional vagueness problems shall be severed and remain in force, consistent with the declarations of the city council's intent in subsections (1) and (2), and the provision shall be interpreted, as a matter of city law, as if the city council had enacted a provision limited to the persons, group of persons, or circumstances for which the provision's application do not present constitutional vagueness problems.

(4)

No court may decline to enforce the severability requirements in subsections (1), (2), and (3) 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 locality or government official from enforcing a subset of an ordinance's applications is never "rewriting" an ordinance, as the ordinance continues to say exactly what it said before. A judicial injunction or declaration of unconstitutionality is nothing more than a nonenforcement edict that can always be vacated by later courts if they have a different understanding of what the Constitution requires; it is not a formal amendment of the language in a statute or ordinance. A judicial injunction or declaration of unconstitutionality no more "rewrites" an ordinance than a decision by an executive official not to enforce a duly enacted statute or ordinance in a limited and defined set of circumstances.

(5)

If any federal or state court ignores or declines to enforce the requirements of subsections (1), (2), (3), or (4), or holds a provision of this article invalid or unconstitutional on its face after failing to enforce the severability requirements of subsections (1), (2), (3) and (4), for any reason whatsoever, then the mayor shall hold delegated authority to issue a saving construction of this article that avoids the constitutional problems or other problems identified by the federal or state court, while enforcing the provisions of this article to the maximum possible extent. The saving construction issued by the mayor shall carry the same force of law as an ordinance; it shall represent the authoritative construction of this article in both federal and state judicial proceedings; and it shall remain in effect until the court ruling that declares invalid or enjoins the enforcement of the original provision in this article is overruled, vacated, or reversed.

(6)

The mayor must issue the saving construction described in subsection (5) within 20 days after a judicial ruling that declares invalid or enjoins the enforcement of a provision of this article after failing to enforce the severability requirements of subsections (1), (2), (3), and (4). If the mayor fails to issue the saving construction required by subsections (5) within 20 days after a judicial ruling that declares invalid or enjoins the enforcement of a provision of this article after failing to enforce the severability requirements of subsections (1), (2), (3), and (4), or if the mayor's saving construction fails to enforce the provisions of the article to the maximum possible extent permitted by the Constitution or other superseding legal requirements, as construed by the federal or state judiciaries, then any person may petition for a writ of mandamus requiring the mayor to issue the saving construction described in subsection (5).

(Ordinance 22-3739 adopted 11/8/2022)