How Small Towns Are Working to Protect Abortion Rights from State Threats
Municipal governments from Texas to Pennsylvania have introduced measures to limit abortion enforcement, but it remains to be seen what weight this strategy will carry.
Davis Giangiulio, | August 8, 2022
Radnor Township is a quiet suburb. Located about 15 miles outside of downtown Philadelphia, the town of 34,000 is known for its strong public schools and wealth. What it’s not known for is experimental policymaking.
But when news leaked this spring that the U.S. Supreme Court was preparing to overturn Roe v. Wade, that changed. Abortion is currently legal under Pennsylvania law, but state Republicans have signaled this may change if they come into power. The situation worried Radnor’s majority-female and majority-Democratic board of commissioners. “We, in different conversations, said how scary it was to see the opinion,” Radnor Board of Commissioners President Moira Mulroney told Bolts. “We knew we had the opportunity to have this discussion because of our majority status.”
Those conversations manifested into an ordinance banning local police from intervening in cases related to abortion. The ordinance passed before the Dobbs decision came out on June 24, and now municipalities across the country are following suit.
With reproductive rights now in states’ hands, local governments are challenging state statutes’ power and taking steps to protect abortion. In larger cities like Austin, Texas, where a near-total ban on abortion is already in place, the city government just passed the GRACE Act, which limits local police’s ability to intervene in abortion cases and makes investigating them the lowest priority. In Ohio, Cincinnati is exploring ways to decriminalize abortion, and Toledo is considering banning the use of city funds for prosecution of cases.
But Radnor is among a group of smaller towns that, away from the spotlight, have begun to introduce similar measures in an effort to shield their residents from the impacts of abortion criminalization. In South Fulton, Georgia, where a 6-week ban is instituted, the mayor proposed a resolution that seeks to limit city funding for the surveillance and investigation of abortion, and also deprioritizes prosecution. Denton, Texas recently passed an ordinance with similar language.
The efficacy of these measures remains to be seen. Efforts by local governments to decriminalize a behavior may depend on the willingness of local police departments to comply, though police chiefs themselves are often appointed by municipal leaders. In addition, powerful state actors are already maneuvering to preempt local governments’ authority to regulate law enforcement, though their ability to do so will depend largely on state-specific rules. The future of abortion rights will also depend on the way courts interpret state constitutions, and laws introduced by state legislatures to either protect or prohibit abortion. But many proponents of reproductive rights see these city-level ordinances as a way to do their part, even if it’s through more experimental legislation, in the absence of federally-protected abortion rights.
The town of Denton, Texas, a suburb of just under 150,000 people in the Dallas-Fort Worth region that has seen Democratic gains in recent local elections, took action days after Dobbs. Alison Maguire, a Denton city council member and leader of their push, said activists reached out to her with the idea shortly after Politico reported on the U.S. Supreme Court’s plans in May. Their resolution bans city funds from being used for investigating abortion cases and makes prosecutions of the lowest priority for police.
“We have the authority to direct the use of local funds and resources,” Maguire said about why she believed the city council should act. “This is a tool we have at our disposal potentially to protect our residents from being investigated and arrested for things that shouldn’t be crimes.”
Maguire pushed for Denton to consider their resolution quickly, as she wanted it to be in place before a trigger law, which bans nearly all abortions and increases the penalties for abortion providers, could go into effect. It passed on June 28, just months before Texas’ ban is set to kick in on August 25. “We were staring down the barrel of a very large portion of our population being criminalized for seeking healthcare,” Maguire said. “It was an emergency and it had to move fast.”
In Radnor, there is no statewide trigger law to race against. Abortion rights are currently protected in Pennsylvania, though a governor’s race this November will decide the future of abortion. Pennsylvania’s Democratic Governor Tom Wolf has vetoed anti-abortion legislation that the Republican legislature has considered, but if Republican nominee Doug Mastriano, a far-right lawmaker, wins that dynamic could change. He has introduced legislation to ban abortions if a heartbeat is detected and called for the general assembly to pass it after Roe was overturned. Radnor’s ordinance, therefore, was proactive, and will only take effect if state law changes. But Mulroney said it was necessary to do this now instead of waiting. “We are in a battle with people who have been doing this for decades,” she said. “It was important to let the state know local jurisdictions are already concerned.”
In Denton, home to several colleges, the younger population made action more pressing. “We have a disproportionate number of residents who may find themselves in need of abortion,” Maguire said. (Nationally, 57 percent of abortions in 2019 occurred for people aged 20-29.) It’s why Maguire thinks there was also a public outcry in the lead-up to their vote. 1,000 people demonstrated publicly outside the city council as they passed their resolution, and Maguire thinks it’s partially why it survived the narrow 4-3 vote.
Radnor’s ordinance also passed by a 4-3 margin. One of those objectors was Sean Farhy, a member of the board of commissioners and a self-described pro-choice Democrat. But this isn’t an issue he thinks that local government should be involved in.
“Abortion is not something that’s regulated at a township level,” he said. “It’s state level, federal level. It’s not what we do.” Farhy is particularly concerned with using police standards to protect abortion. “Potentially politicizing our police is terrible.” He said the issue will be decided in the governor’s race this November, an election he fears the potential consequences of if Mastriano wins.
Local law enforcement and DAs typically have wide discretion to determine their priorities and practices, though their decisions may meet pushback. The chief prosecutor of the county that contains Radnor, Delaware County District Attorney Jack Stollsteimer, has said he would not prosecute abortion cases if abortion were to be banned in Pennsylvania.
Denton Mayor Gerard Hudspeth also voted no on Denton’s resolution. He believes it contradicts his duty to enforce the law. “We can’t subvert the laws, because what does that communicate to the citizens?” he asked. “You go advocate and change laws, but you don’t ignore the laws.”
Denton’s city manager, an appointed position that is separate from the mayor, has staked a similar position: She said in a letter that the city council does not have the authority to determine the level of enforcement of crimes for city police, or prohibit city funds from being used for investigating abortion cases.
In a follow-up letter, City Manager Sara Hensley said the the chief of police told her they will not engage in unsolicited investigation, surveillance, or collection of data related to cases involving abortions; but Hensley also said abortion is illegal and violations can be investigated. Denton County DA Paul Johnson has not come out against prosecuting abortion cases that are brought to him, as other Texas DAs have. For his part, Texas Attorney General Ken Paxton has said he will aid local DAs in prosecuting abortion cases.
The Denton city manager’s refusal to implement the resolution leaves the future of the policy uncertain, to the point both Maguire and Hudspeth don’t know for sure how effective it will be at protecting people against investigation and prosecution in the near term.
What Denton and Radnor are doing represents “intense inter-jurisdictional conflict,” according to Rachel Rebouché, dean of the Temple University Beasley School of Law. She said municipal codes will determine how much authority cities have to weigh in on abortion criminalization, but the essential question of whether these measures will succeed comes down to an investment of resources: “How much money is the state willing to expend to enforce a law against townships and cities that defy it? How much money and time are places like Radnor willing to invest to try to undermine a statewide law?”
Rebouché also said this situation could change if states decide to pass new measures to preempt local governments’ discretion. She pointed to a proposed law in Texas that allows DAs to pursue abortion-related charges in jurisdictions not their own to get around local DAs saying they won’t prosecute abortion cases. Similar laws could be used to weaken the authority of municipalities in controlling police and city funds on this issue. States, including Texas, have already passed laws to limit city governments’ authority to direct police action, on issues like immigraiton enforcement, for example.
Jenny Dodson Mistry, an expert in local policy on reproductive health rights and justice at the National Institute for Reproductive Health, echoed this sentiment. She called ordinances and resolutions like these a step in the right direction for cities looking to protect abortion rights, but localities need to be cautious when creating them. “Other actors can step in and intervene. The attorney general, if they’re anti-abortion, could still go ahead and prosecute,” she said. “If a city passes an ordinance or resolution like that, we think they should work with experts in law to understand the risks folks may still face.”
Currently there are no abortion clinics in Radnor, but township commissioners still passed this ordinance with the intent to protect residents from criminalization for any number of pregnancy outcomes. Mulroney believes the fact a Radnor police officer won’t participate in prosecutions against reproductive care is a successful direction of resources they control. “This shows our board is willing to be creative and innovative, and I’m really proud.”
Mulroney is proud that Radnor is encouraging and working with other nearby communities to help them pass similar policies. It’s a move to make their movement stronger, and make a clear signal to the state. In the middle of July, the borough of West Chester, located in the county neighboring Radnor, began exploring preventing police from enforcing anti-abortion laws after engaging in disscussions with Radnor.
Municipalities can do more, too. Mistry is encouraging using local budgets to fund residents’ travel to seek care, direct funding to abortion funds, and public education campaigns about how to access care. The Atlanta City Council voted unanimously to donate $300,000 to an abortion fund, and St. Louis is using federal funds to help connect residents with help to get access to abortion care.
Neither Maguire nor Mulroney said they were planning on taking more steps on this issue. But they have already challenged the narrative that only states will determine the future of reproductive rights. Maguire said the resolution will be successful, at least in her mind, if it helps even one person.
“If there is even one Denton resident who needs an abortion and is able to get one safely without being subjected to scrutiny from law enforcement,” she said, “then this resolution is a success.”