Abortion trafficking ban hits roadblocks

The Mason County Commissioners Court usually meets at the local library in a room that holds about 30 people. But on a recent steamy September morning, the central Texas county had to switch venues to accommodate the larger-than-normal group that gathered. Attendees added metal folding chairs to rows of fabric seats in the bustling civic center. A few late arrivals stood in the back. The agenda item causing such a stir? A proposed ordinance that would ban the use of county roads for transporting a woman to an out-of-state abortion facility.

Mason, population 3,943, is one of several small cities and counties across Texas weighing abortion trafficking ordinances. Proponents of the measures argue they’re essential in a post-Roe landscape to prevent pregnant women from traveling to other states where abortion is legal. But the ­ordinances are up against legal critics and local residents who don’t want the national abortion debate stirring division in their rural communities.

Mark Lee Dickson, the ordinance’s pro-life champion, sat a few rows back in jeans, Vans, and a navy suit jacket. In 2019, he started traveling to Texas cities to encourage them to pass ordinances outlawing abortion. Now that abortion centers across the state are closed, Texas women are traveling to facilities in New Mexico or Kansas. Dickson and the ordinance’s author, former Texas Solicitor General Jonathan Mitchell, believe the anti-trafficking measures are the next step to protecting the state’s unborn babies. That’s why the two men are focusing on rural towns at the intersections of major highways.

The ordinance doesn’t penalize women seeking abortions but outlaws transporting them across state lines to obtain abortions or helping pay for abortion-related travel. Language in the ordinance prohibits public officials from enforcing it. Instead, it relies on civil lawsuits from private citizens—a feature Mitchell introduced in earlier Texas ordinances and in Texas Senate Bill 8, the heartbeat law that largely halted operations at Texas abortion facilities in 2021.

Some Mason County residents told us they fear the ordinance would rupture their close-knit community. Ann Smith, 76, said she doesn’t want an abortion clinic in Mason but believes banning the use of county roads is “ridiculous” and would cause neighbors to turn against one another. “The country is divided enough right now without smaller communities splitting up,” she said. Others worried the ordinance would invite lawsuits from national pro-abortion groups.

Dickson arrived at the meeting optimistic about the measure’s success in Mason County. But his face fell when the attorney selected to advise the commissioners argued the county did not have the authority to pass the ordinance. “We constantly deal with these liberal attorneys that give their liberal opinion against these measures,” Dickson said.

But it’s not just liberal attorneys who have concerns about the ordinance. Paul Linton, special counsel for Texas Alliance for Life, is skeptical about its strategy. Linton said he suspects the reason it prohibits public enforcement by local officials is “because the ordinance, in large ­measure, is unconstitutional” since it infringes on the right to interstate travel.

If local officials could enforce the ordinance, opponents could sue the city on the grounds that it violates this constitutional right, even before any enforcement attempts. But with a ­private civil enforcement mechanism, parties have no way of knowing who might try to enforce the ordinance against them. That leaves pro-abortion groups with no one to sue.

Mitchell argues these new ordinances do not interfere with the right to travel. “It only imposes penalties on those who traffic pregnant women across state lines for the purpose of abortion,” he said in an emailed statement. Mitchell compared the ordinances to the federal Mann Act, a law that prohibits transporting people across state lines for the purpose of prostitution. But Linton pointed out that the Mann Act only criminalizes transporting women for sexual conduct criminalized in the destination state. In the case of these ordinances, Texas women are traveling to states where abortion is legal.

Mason County voted to take no action on the ordinance. The next ­evening, Chandler, Texas, also voted against an abortion trafficking ordinance. So far, Texas towns Odessa and Little River-Academy and counties Goliad and Mitchell have passed the ordinance. Llano, Texas, tabled a ­similar measure in August.

Dickson wasn’t deterred by the ­setbacks. He plans to keep fighting what he calls misinformation about the ordinance and to win support among local government officials. “We believe that we have a solid footing for this ordinance which we put forward,” he said. “And this is far from over.”