In Wake of SCOTUS Decision Overturning Roe v. Wade, Austin City Council Fast-Tracks Abortion Decriminalization Act

The Bans Off Our Bodies Rally at the Texas State Capitol on May 14, 2022 (photo by John Anderson)

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 agenda (historically, Council does not meet for most of July), but passage of 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 obtained, performed or “aided and abetted” an abortion after six weeks of pregnancy. But the Texas Legislature has also passed a “trigger law” to make abortion care entirely illegal from the moment of conception, without exceptions for rape or incest. Texas Attorney General Ken Paxton indicated the law could go into effect in as little as 30 days from when SCOTUS enters its final judgment.

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, the resolution asks that APD refrain from storing or cataloguing any information relating to “an abortion, miscarriage, or other reproductive healthcare act,” providing information to other government agencies relating to the same actions, and surveiling 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 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 change APD 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 the Police Chief Joe Chacon adopt the policies outlined above. The tactic is similar to that used in 2020 by Vela’s predecessor Greg Casar to decriminalize the possession of small amounts of marijuana. As was the case then, the GRACE Act argues the proposed policy reflects community values of Austin as a whole.

Already, Vela and Fuentes’ resolution has received public support from Mayor Steve Adler and CMs Paige Ellis, Kathie Tovo, and Leslie Pool; CMs Natasha Harper-Madison and Ann Kitchen and Mayor Pro Tem Alison Alter are almost certain to vote for the measure. Only the vote of Council’s lone Republican, Mackenzie Kelly, remains in flux. Reached by phone Friday, Kelly told the Chronicle 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. Garza is expected to provide more information Monday, June 27, but in a statement issued June 24, he said, “I will not force women into the shadows, especially when they need life-saving medical care. No matter what the law says, I implore you: please, seek medical help if you need it.”

Look for more on this story in next week’s print edition of the Chronicle.

For more information on abortion resources, see this May 6, 2022 story.

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