Texas *Still* Wants to Trap Abortion Seekers

Mark Lee Dickson (center) of Right to Life of East Texas speaks to Todd Hawthorne during an anti-abortion event at Gospel Light Baptist Church in Rio Rancho, N.M., on Jan. 31, 2022. (Adria Malcolm / The Washington Post via Getty Images)

Today, I once again focus my attention on the Lone Star State, home of the tireless crusader Mark Lee Dickson—director of East Texas Right to Life and the founder of the Sanctuary Cities for the Unborn Initiative—who is pushing to bring about the day when “abortion is considered a great moral, social and political wrong and is outlawed in every single state.” To this end, in addition to his inaugural campaign to transform the country into an end-to-end “sanctuary for the unborn,” Dickson is now pressing locales throughout Texas to enact abortion trafficking bans, which he is actively promoting as the “next stage in an abortion-free America,” 

Heeding the call, on Oct. 23, three of the five male Lubbock County commissioners (with two abstaining) approved an abortion trafficking ordinance making it unlawful to transport anyone seeking an abortion through the unincorporated area of Lubbock County. The same three commissioners also voted to declare the unincorporated parts of the county a sanctuary for the unborn, despite the fact that its near-total abortion ban places it, according to the Guttmacher Institute, in the “most restrictive” category. 

Do I have the right, do I have the power, do I want the authority to tell these women what to do, violate their rights? I have a difficult time with that.

Gilbert Flores, Lubbock County commissioner

In rolling out this campaign, Dickson blamed the problem of abortion trafficking on a baby-murdering abortion cartel. He is not alone in this belief. On Aug. 21, 2023, a group of Texas lawmakers sent a letter addressed to local officials declaring that although “abortion is outlawed in the entire State of Texas from the point of conception, our work is far from over,” due to the fact that:

“[r]ight now, throughout the State of Texas, women are being trafficked across our borders by abortion traffickers funded by abortion trafficking organizations still operating in our state. As a result, these women are being abused and traumatized by abortion across our Texas-New Mexico border and sent back to Texas for our cities· and counties to deal with the aftermath taking place in our homes, our schools, our churches and our hospitals.”

Although the pregnant woman is presented as a victim of these nefarious forces who are forcing her across state lines against her will, the reality is that she is far more likely to be transported by a partner, friend or family member than by a member of a “baby murdering cartel” or an ”abortion trafficking organization.” However, as I wrote previously, recognition of this reality would pose a bit of a quandary for proponents of these measures since “the legal understanding of trafficking typically includes some degree of coercion or force.”

Dickson, however, has a workaround. Rooted in his foundational belief that “unborn children are human beings,” they are also cast as a trafficked party based on the view that “’the unborn child is always taken against their will.’” This suggestion that unborn children have enforceable consent rights opens up the proverbial can of worms. Does this mean that a pregnant person must somehow consult with the fetus and secure its permission before engaging in conduct that might potentially present a risk, such as going skiing? Or indulging in that extra cup of coffee on the weekends?

Abortion rights activists gather during an International Women’s Day demonstration at the Texas State Capitol on March 08, 2023, in Austin, Texas. (Brandon Bell / Getty Images)

Like the other trafficking (and sanctuary city) measures, Lubbock allows private parties to bring civil suits against those who are assisting the “mother of the unborn child … in the killing of her unborn child” by transporting her for abortion care on roads running through the unincorporated areas of the county. Notably, the “mother of the unborn child” is herself exempt from suit—presumably because, like the fetus, she too is cast in this road trip saga as an unwilling traveler.

Focused mainly on the protected constitutional right to travel, legal scholars have raised serious questions about the validity of these ordinances. After all, even Justice Brett Kavanaugh, who is certainly no fan of Roe, expressed the view in his concurring opinion in Dobbs that a state cannot bar its residents from cross-border abortion travel.

Cutting to the chase, former state Sen. Wendy Davis, now a senior advisor at Planned Parenthood Texas Votes, declared that this is a plan “one by one, to create a statewide ban against travel to other states, literally creating a reproductive prison in the state of Texas.”

May a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.

Justice Brett Kavanaugh’s concurring opinion in Dobbs v. Jackson Women’s Health Organization

While also not an abortion rights supporter, Gilbert Flores, a 77-year-old Lubbock county commissioner, one of the abstaining votes, drew on his personal history to explain his opposition to the ordinance. Explaining that his rights had been violated when he was growing up “at school, at restaurants, anywhere I went,” he ventured that, “Now, what’s in front of me right now is, do I have the right, do I have the power, do I want the authority to tell these women what to do, violate their rights? I have a difficult time with that.’”

Meanwhile, in nearby Amarillo, the city council tabled its vote on the proposed ordinance in order to review it more carefully. In addition to concerns about its authority to restrict travel, council member Tom Scherlen expressed his reservations about the private enforcement mechanism, explaining that the idea of “turning neighbor against neighbor” took him “back to World War II and what the Nazis did,” by encouraging neighbors to turn each other in for harboring Jews.

These ordinances also raise another level of concern about the surveillance of those traveling out of state for abortion care: the use of geolocation data to track the travel route and ultimate destination of “violators” for the purpose of bringing suit against them.

While this may sound rather far-fetched, “the use of technology has made it practically impossible for Americans to evade ubiquitous tracking,” wrote Natasha Singer and Brian X. Chen in the New York Times—a reality driven home by the fact that geolocation data was apparently used to determine that an Idaho teen was recently taken by her boyfriend and his mother across state lines for an abortion, in contravention of the state’s trafficking law.

Up next:

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Shoshanna Ehrlich is professor emerita of women’s, gender and sexuality studies at the University of Massachusetts Boston. Her books include Who Decides: The Abortion Rights of Teens and the co-authored Abortion Regret: The New Attack on Reproductive Freedom. She is currently collaborating with the Planned Parenthood League of Massachusetts’ ASPIRE Center for Sexual and Reproductive Health on a minors’ abortion rights and access project.