This article was originally posted on the Society of St. Sebastian, to read it, click here.
On May 25th, 2021, Lebanon, Ohio became the first city in the state to become a Sanctuary City for the Unborn. After a unanimous vote, the Lebanon City Council passed an ordinance that outlawed abortion in their city and declared abortion-inducing drugs contraband.
The Sanctuary City for the Unborn (SCU) movement, first conceived in Texas, has sparked a national response. At the time of this article’s publication, thirty cities across the U.S. have designated themselves Sanctuary Cities for the Unborn. Lebanon’s ordinance represents a groundbreaking moment in the movement’s history: it is the first city in Ohio to enact such an ordinance and geographically, the farthest east. All other Sanctuary Cities for the Unborn have been localized to states west of the Mississippi— namely, Texas and Nebraska. A handful of cities in other states, emboldened by the movement’s success, are also looking to pass such ordinances in their communities.
However, amidst the rise in popularity of SCU ordinances, pertinent questions have arisen. Are Sanctuary Cities for the Unborn legally defensible? Or do they merely serve as an important, if unenforceable, cultural statement? This question has been the subject of widespread debate. Those within the pro-life movement who ascribe to the incrementalism school of thought, such as Ohio Right to Life, recognize that, while all peaceful pro-life action is to be commended, not all carries the same level of strategic merit. With the lives of countless babies on the line, both time and strategic planning are of the essence. Political effectiveness is quite literally life or death.
An exploration of Lebanon’s ordinance reveals an interesting legal ally: Ohio’s Human Life and Heartbeat Protection Act— an Ohio law more commonly referred to as Ohio’s “Heartbeat bill.” Governor DeWine signed the legislation, backed by Ohio Right to Life, in April of 2019 and a federal judge blocked the law from taking effect in July of that same year. Although the Heartbeat bill’s original intent was to function as a challenge to Roe v. Wade, it served an additional purpose. The Heartbeat bill forms the main legal force behind Lebanon’s ordinance banning abortion.
The document, technically titled Ordinance No. 2021-053, points out that Ohio’s Heartbeat bill bans nearly all abortions after an unborn baby’s heartbeat can be detected. Herein lies the ordinance’s legal teeth. In the section labeled “Findings,” the ordinance points out that an injunction, like the one imposed on Ohio’s Heartbeat bill, only “prevents the named defendants from initiating criminal charges while the court’s injunction remains in effect.”[i] Namely, the Heartbeat bill itself has not, in actuality, been “struck down” or removed from Ohio law, but rather the state of Ohio has been temporarily restricted from enforcing it. As the ordinance states, the Heartbeat bill has in fact “outlawed and criminalized abortion statewide if the unborn child has a detectable heartbeat” and continues to maintain that “any person who performs an abortion in violation of the [Heartbeat bill], other than the pregnant woman...is a criminal and a felon.”[ii] It also points out that an injunction does not “prevent government officials from prosecuting and punishing individuals after the injunction has been dissolved.”[iii] The Heartbeat bill may be practically hampered by a temporary stay, but that does not make it legally irrelevant.
This virality of blocked laws has proved to be key not only in Lebanon’s ordinance but also in one enacted in Lubbock, Texas. Although a more thorough knowledge of Texas’s specific laws is required for a definitive statement on the matter, it seems plausible that the dormant virility of Lubbock’s ordinance may have been the reason Planned Parenthood’s location in the aforementioned city ceased committing abortions after its SCU ordinance passed and before being blocked by a lawsuit.
For Planned Parenthood, the action proved to be a wise move as a federal judge dismissed the lawsuit against the ordinance on the grounds that the abortion giant did not have standing to sue. This ruling is quite significant. The concept of third party standing in relation to lawsuits brought by abortion facilities on behalf of a women’s “constitutional right to choose” has long been an item of interest in the legal battles surrounding abortion.
This brings into focus another key aspect of Lebanon’s ordinance: can and should the abortion industry sue on behalf of the women who are affected by a pro-life law? This question is especially pertinent in court cases like June v. Russo, which sought to strengthen health and safety requirements for abortion facilities, something women would be unlikely to object to. Although the Supreme Court did not ultimately weigh in on the question of whether abortion facilities could sue on behalf of the women in their ruling on June v. Russo, the question remains pivotal in the pro-life’s movement legal battles.
Unsurprisingly, Lebanon’s ordinance singles out this issue and specifies that the abortion industry and others who would subject a woman to an abortion cannot be granted third party standing in regard to the ordinance. This clause was engineered to block Planned Parenthood from using vulnerable women in unplanned pregnancies as human shields to protect their business interests in court. It is our sincere hope that the ordinance’s specificity on this matter will prevent them from doing so.
Lastly, Lebanon’s ordinance seeks to preemptively protect itself from legal attacks via a series of tear-away clauses, which allow any part of the ordinance found to be unconstitutional or imposing “undue burden” to be seamlessly removed while maintaining the rest of the ordinance as is. In an unusually biting observation, the ordinance points out that dismissing such provisions because they would be “rewriting” the ordinance or making the court participate in a legislative capacity is preposterous. It goes on to state that “a judicial injunction or declaration of unconstitutionality no more rewrites an ordinance than a decision by an executive official not to enforce a duly enacted statute or ordinance in a limited and defined set of circumstances.”[iv] We are inclined to agree.
In conclusion, Lebanon’s ordinance has many avenues by which it seeks to prevent legal challenges, but it all comes back to its foundation: Ohio’s Heartbeat bill. By taking a bold step in 2019 to protect life by enacting our state’s Heartbeat bill, Ohio paved the way for a growing culture of life. Now, the people of Lebanon, by declaring their city a Sanctuary City for the Unborn, have affirmed what we already know: Ohioans protect life. Whether by passing laws on a statewide scale or on the local scale, Ohio is committed to ending abortion. When we stand for life in our communities, our boldness serves as a sort of ripple effect. Our culture’s move towards life and away from a culture of death is demonstrated and defended by Sanctuary Cities for the Unborn. With a robust legal foundation and an eye to the future, these ordinances are a much-needed move towards the pro-life movement’s ultimate goal of ending abortion. Establishing Sanctuary Cities for the Unborn is a key step in that direction.
[i] See Ordinance No. 2021-053
Director of Communications
Ohio Right to Life