Voters in multiple states have the opportunity this fall to determine the future of abortion rights where they live. But an anti-abortion ballot measure in a midsize Texas city could have sweeping national implications and severely restrict abortion at the federal level.
Amarillo, Texas — a conservative town in the panhandle with a population of about 200,000 — is set to consider a measure that would declare the city a “sanctuary city for the unborn.” The measure would prohibit abortion unless necessary to save the patient’s life, make abortion pills illegal and outlaw assisting a person to travel outside the city, or through the city, to access abortion in other states. Interstate 40 is the major thoroughfare through Amarillo and happens to be the fastest way to get to New Mexico, where abortion is protected.
Though several states have abortion rights initiatives on the ballot next month, anti-abortion activists are focused on Amarillo for the role an outcome there could play nationally. If the ordinance is adopted, the city could become involved in an abortion pill case the Supreme Court sent back to the lower courts last term. The justices argued that the main plaintiffs — a coalition of anti-abortion groups known as the Alliance for Hippocratic Medicine — lacked standing to bring the case.
If Amarillo passes the ordinance, anti-abortion advocates think it could have standing. And, not coincidentally, Amarillo’s only federal judge, Matthew Kacsmaryk, a Trump appointee who has openly opposed Roe v. Wade, would take the case.
Mark Lee Dickson, a prominent anti-abortion activist, initially sought to get the Amarillo city council to pass the measure in 2023. Jonathan Mitchell, a conservative lawyer who worked with Dickson to draft the ordinance, urged Cole Stanley, Amarillo’s mayor, to approve it so the city could legally intervene in the abortion pill case.
“Amarillo will indisputably have standing to sue and any problems with the Alliance for Hippocratic [M]edicine’s standing will no longer matter,” Mitchell wrote to Stanley in October 2023, according to a copy of the letter obtained by NOTUS. (The American Prospect first reported on the letter.)
“For this tactic work, we need the ordinance enacted as soon as possible,” Mitchell added, offering to represent the city “at no cost.” “If the city waits until the spring or decides to place the ordinance on the ballot for voters to decide, the Supreme Court will have already ruled and it will be too late to salvage the litigation in Alliance for Hippocratic Medicine.”
The city council ultimately rejected the ordinance this summer, with Stanley opposing it. However, Dickson, who has worked closely with Mitchell to write a number of high-profile anti-abortion laws, including Texas’ 2021 lawsuit-enforced six-week abortion ban, told NOTUS that if the measure passes in November, he and Mitchell would want to intervene in the abortion pill case now that it has returned to the district court level.
Mitchell did not respond to NOTUS’ multiple requests for comment, and Stanley declined to comment for this story.
If voters approve the measure in November, Amarillo would become one of the largest cities to have a “Sanctuary City” ordinance, though not the first: Dickson has managed to get such ordinances adopted in multiple cities across the U.S. But Amarillo would stand out for another reason: It would be one of the few Texas cities whose ordinance cites the Comstock Act, a federal law that conservatives want to enforce as a national abortion ban.
The measure that voters will decide on “recognizes [the Comstock Act] as prohibiting the mailing and receiving of abortion-inducing drugs and abortion paraphernalia,” Dickson said. This interpretation of the law amounts to a federal abortion ban.
This makes the Amarillo initiative “extremely important geographically,” Dickson told NOTUS. The Amarillo division of the Northern Texas U.S. District Court is where Kacsmaryk is the only federal judge.
Amarillo isn’t the first city in Kacsmaryk’s jurisdiction that anti-abortion advocates have targeted. The city council in Clarendon, another red city in the panhandle, rejected a measure in the spring over concerns that the ordinance’s impact extended beyond city limits.
When asked if the city’s placement is what made the Amarillo ordinance so important, Dickson said “obviously it is a place … with one of the best judges in the nation.”
“And I’ll just leave it at that,” he added.
The Judicial Conference of the United States recently issued a policy change to curtail the practice of “court shopping,” in which plaintiffs file cases with judges they believe would rule favorably to their cause. The new rule would make it so that if there’s a case seeking to change or invalidate a federal or state policy, it would be assigned randomly to prevent handpicking judges.
However, the practice, which made Kacsmaryk into one of the most famous conservative judges in the country, would likely not heavily impact the Northern Texas U.S. District Court, where most of its judges have been appointed by Republicans. While the Justice Department could file a motion to reassign the case to a different judge due to court-shopping concerns, it would likely go to another GOP-appointed judge.
The Amarillo anti-abortion ballot measure has alarmed abortion rights advocates in the area.
Lindsay London told NOTUS she co-founded the Amarillo Reproductive Freedom Alliance along with other community members in July 2023 when they learned that Dickson, who she knew for introducing Sanctuary City ordinances in cities across Texas and other states, was trying to bring one to Amarillo.
“For those of us who have grown up here and lived here all our lives, the fact that we’ve become such a hub for these massive repro decisions is very surreal,” London said, calling Kacsmaryk’s placement in Amarillo a “critical chess piece.”
Initially, ARFA formed to oppose the ordinance’s travel ban provision, but London, who said that the news of the initiative “isn’t hitting on everyone’s radar,” explained how “over time” that changed.
“When we learned about this additional threat, it was like, ‘What more can they take from us? We won’t stand for this,’” she said. “As we learned more about Mitchell, about Kacsmaryk, it became very clear there was a much bigger game at hand.”
London said the group had met with Stanley and other council members, and while they described themselves as “staunchly pro-life,” their concerns over “government overreach” led to them opposing the initiative in the summer. She expects that their opposition will continue after November’s election even if the initiative is adopted by voters, suggesting that they’d oppose the city of Amarillo seeking the legal action Mitchell is looking for.
Dickson said that Stanley initially seemed supportive of the ordinance, alleging that he and Mitchell worked closely with the mayor to draft the language. If the ordinance passes in November, “God could change the mayor and city council’s hearts” to pursue legal action, Dickson said.
Women’s March, a national organization, has become involved in opposing the anti-abortion measure. The group organized a door-knocking effort in Amarillo last weekend to encourage voters to reject the ballot initiative.
“There is what’s on the surface of this initiative, but there’s also the rest of the iceberg, which is to say that this is the tip of the spear of a very networked and interconnected campaign that aims to create a de facto abortion ban,” said Rachel Carmona, executive director of Women’s March. “It’s one of the smallest ballot initiatives, or it seems small on its face, that could have widespread consequences nationally.”
Legal experts have questioned whether a legal challenge coming from Amarillo would work.
While the city of Amarillo could attempt to become involved in the Alliance for Hippocratic Medicine case, the Supreme Court ruled that the anti-abortion groups lacked standing because they did not show there was actual injury to bring the case. “That’s kind of the end of their ability to pursue the litigation in the court below,” said Mary Ziegler, a law professor at the University of California, Davis, who specializes in abortion issues and supports abortion rights.
However, even amid concerns about standing, some conservative federal judges have argued that the Supreme Court’s standing decision was wrong. When the 5th Circuit Court of Appeals sent the case back to Kacsmaryk, Judge James Ho, who was on Donald Trump’s Supreme Court nominations short list, suggested the justices should not have trusted the federal government’s arguments and the case should be reconsidered with that in mind. (Ho is widely considered by conservatives as a judge friendly to the anti-abortion movement).
Besides Mitchell and Dickson, other conservatives are trying to intervene in the abortion pill case so it can be evaluated by Kacsmaryk. Attorneys general from Missouri, Kansas and Idaho said in a recent court filing that they’re willing to take over the case in the same court even if the Alliance is dismissed because of the judge’s “extensive background with the merits question.” (Kacsmaryk originally sided with the anti-abortion groups in the case, ruling that Comstock should be read “plainly,” and doing so would make abortion pills illegal).
“They would obviously have an easier time getting before Judge Kacsmaryk, right? So, in terms of having, like, a favorable first look from a judge, that would seem to be,” Ziegler said. But she added that it’s difficult to see what Amarillo’s claim would be to either join the abortion pill lawsuit or make a new one: “They’re going to run up against the same obstacle that the plaintiffs in Alliance did, which is, you know, the Supreme Court saying, ‘This feels like a put-up job, and you’re just speculating.’”
While abortion rights advocates see the potential of a legal challenge emerging from Amarillo as far-fetched, they believe the national threat is real enough to put a spotlight on the measure. And as ordinances are adopted in other cities, they see potential for anti-abortion activists to seek more legal challenges that would revive Comstock.
“This is like a kid who stands in the middle of a living room and hides their face and says, ‘You can’t see me.’ Like, I see you. Everyone sees what you are doing,” Carmona said. “I am not distracted by that.”
—
Oriana González is a reporter at NOTUS.
Correction: This story has been updated to show Amarillo would be one of only a few Texas cities to cite Comstock in its ordinance.