Council Fast-Tracks Move to Decriminalize Abortion in Austin
A moment of GRACE
By Austin Sanders, Fri., July 1, 2022
Council Members Chito Vela and Vanessa Fuentes have requested a special called meeting of the Austin City Council to approve a resolution, authored by Vela, that attempts to effectively decriminalize abortion in Austin. Planning for the meeting is still under way, but it could happen July 19 or 21. The resolution is virtually certain to win approval on a Council with 10 Democrats and just one Republican.
Vela initially intended to add the item to the Council's July 26 work session agenda (historically, Council does not meet for most of July), but the resolution has gained new urgency following the U.S. Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization, the Mississippi case the court's anti-choice majority has used to officially overturn the 1973 Roe v. Wade decision.
Most abortions have been illegal in Texas since last September, when Senate Bill 8 took effect; that legislation allows private citizens to sue anyone they believe to have performed or "aided and abetted" an abortion after six weeks of pregnancy. But the Texas Legislature has also passed a "trigger law" that's designed to ban all abortion care from the moment of conception, without exceptions for rape or incest, once SCOTUS enters its final judgment in Dobbs (usually about a month after the opinion is released). Texas Attorney General Ken Paxton indicated that statutes that predate Roe v. Wade (itself a challenge to a Texas statute) could criminalize any abortions immediately, rather than just exposing them to the civil penalties under SB 8. However, the ACLU of Texas prevailed at a Tuesday hearing in Harris County and secured a temporary restraining order against Paxton.
The local resolution is known as the Guarding the Right to Abortion Care for Everyone (GRACE) Act. It recommends that the Austin Police Department avoid devoting personnel and resources to investigations relating to a person obtaining an abortion or providers performing them. Specifically, it asks that APD refrain from storing or cataloging any information relating to "an abortion, miscarriage, or other reproductive healthcare act"; providing information to other government agencies relating to the same actions; and surveilling or collecting information from an individual or organization with the aim of determining if an abortion has occurred.
Exceptions are outlined in the resolution. APD could share information relating to an abortion if it could be used either by a patient to "defend [their] right to abortion care" or by a provider to defend their right to provide the care. Similarly, information could be gathered by APD and shared with other agencies in the case that a person was coerced into obtaining an abortion, if a provider performing an abortion was believed to be criminally negligent, or if the abortion is not the crime being investigated but is related to investigation of another crime.
Ultimately, the resolution is an attempt to direct police policy rather than supersede state law through local ordinance. But even in that regard, the mostly liberal Council is limited in what it can do. State law prohibits city officials from ordering police chiefs to adopt certain policies, so the GRACE Act can only request that police Chief Joe Chacon follow the resolution's lead. The tactic is similar to that used in 2020 by Vela's predecessor Greg Casar to decriminalize the possession of small amounts of marijuana, a decision then endorsed (and expanded) by voters in May 2022. As was the case then, the GRACE Act argues that the proposed policy reflects community values of Austin as a whole.
Already, Vela and Fuentes' resolution has received public support from Mayor Steve Adler, Mayor Pro Tem Alison Alter, and CMs Paige Ellis, Kathie Tovo, and Leslie Pool; CMs Natasha Harper-Madison and Ann Kitchen are almost certain to vote for it. Only the vote of Council's lone Republican, Mackenzie Kelly, remains in flux. Reached by phone Friday, Kelly told us that she was still reading through the resolution to determine how she would vote. (Kelly was the only no vote on a different resolution aimed at protecting reproductive rights, brought by Fuentes and approved by Council on May 19.)
Kelly said she was concerned about the resolution's legality and that tasking staff with working on it, on top of the mountain of Council resolutions they are already working on, may not be the best use of staff time. "I don't want City Council to put [staff] on issues where they can't be effective," Kelly told us. But when asked directly if she considered herself pro-choice, the Northwest Austin CM gave a vague answer. "I would say I am pro-adoption," Kelly told us, noting that she has family members who were adopted. "Life is a beautiful thing," she said, before adding that the entire debate around reproductive rights was "tricky."
However Kelly feels about abortion, the resolution will pass with or without her support. Still, as Vela wrote in an FAQ document posted to the Council message board, "There will still be significant legal risk involved in any abortion procedure in Texas – we can only try to mitigate legal risk, not eliminate it completely." Other law enforcement agencies could still investigate a person or provider for performing an abortion.
The City Attorney's Office is generally wary of Council action that will get the city sued, which the GRACE Act certainly will (perhaps under the vigilante justice scheme of SB 8). Chacon will also need time to review the resolution and craft legally sound (in his view) language to use in revising the APD General Orders; it took former Chief Brian Manley six months to do this regarding marijuana enforcement. The Chronicle contacted APD for a comment on the resolution; Chacon declined.
Regardless of how APD proceeds, Travis County District Attorney José Garza has said he will not prosecute cases against people who provide or obtain abortions. (Travis County Judge Andy Brown said Monday, June 27, that he is exploring taking up a similar resolution at Commissioners Court to ask that Travis County Sheriff Sally Hernandez not use any of her office's resources on investigating abortion-related offenses.)
"Making abortions a crime will not end abortion," Garza told reporters Monday outside the Ronald Earle Building on West 11th Street. "It will simply end safe abortions for too many by threatening women who seek abortion services ... Here in Travis County, we will not criminalize personal health care decisions. If you need medical assistance, I implore you to seek it."
According to the Rape, Abuse & Incest National Network, about 1 in 9 girls under the age of 18 have experienced sexual abuse or assault at the hands of an adult. Of those girls, about 34% are under the age of 12. Neva Fernandez, the director of victim services for the D.A.'s Office, offered a stark picture of what the world could look like for survivors of sexual assault in Texas as the state approaches a total ban on abortions.
"Make no mistake," Fernandez began, "this office has absolutely seen crime victims as young as 10 years old impregnated by their rapist. I can tell you that we had a 10-year-old child get pregnant." Fernandez said that the case was prosecuted and that the girl was able to secure an abortion; a spokesperson for the D.A.'s Office declined to offer more information about the case out of respect for the victim's privacy.
"It is important to understand that this isn't a happy ending for that child," Fernandez said. "Every step was additional trauma on the child's body and the child's spirit. However, access to a safe abortion allowed that girl to take some control over her body back." But in a future Texas where pregnancies that result from rape or incest cannot be ended, the young girl Fernandez referenced would have been forced to carry the pregnancy to term. "The little girl who should be eating spaghetti at the school cafeteria and playing tag during recess will be forced to leave school at 10, 11, 12 years old to carry a baby in her own tiny child's body," Fernandez said.
Garza's policy cannot stop law enforcement from arresting people for obtaining or performing an abortion, just as his policy to not prosecute drug possession cases of less than 1 gram has not stopped officers and deputies from bringing in low-level nonviolent offenders. To prevent people being booked into jail on charges that will later be dropped, the D.A. and Travis County Attorney Delia Garza have implemented "arrest review" policies that require officers to check in with attorneys at either office to review any probable cause affidavit. It's unclear if a similar policy could be applied to those charged with providing or supporting abortion care that is now a crime but that the district and county attorney will not prosecute.
See the draft resolution on abortion at assets.austintexas.gov/austincouncilforum/E0-20220624105310.pdf.
Got something to say on the subject? Send a letter to the editor.
Read more of the Chronicle's decades of reproductive rights reporting here.
