FACTS:
Over the last two years, the organization, Right to Life of East Texas, headed by Mark Lee Dickson, has prepared sample “Sanctuary City for the Unborn” ordinance language and shopped it around various small towns, first in Texas, and more recently in Ohio. In May, 2021, the City of Lebanon became the first Ohio municipality to enact such an ordinance. Lebanon’s ordinance has two main sections: (1) a prohibition on abortions and abortion-inducing drugs in the city and (2) a prohibition on abortions performed in violation of state law. The language in both sections of Lebanon’s ordinance was taken almost verbatim from the model language. Mason enacted only the portions of the ordinance that ban abortions sought within the city.
The first section of Lebanon’s ordinance, section 509.09, makes it a first degree misdemeanor to procure or perform an abortion within the city of Lebanon, at any stage of pregnancy. It also criminalizes the possession and distribution of “abortion-inducing drugs” within the city, as well as the “aiding and abetting” of an abortion in the city, and lists examples of actions that constitute such prohibited conduct. Under the ordinance, aiding and abetting an abortion includes—but is not limited to—the provision of transportation, financial assistance, instructions regarding self-managed abortion (“SMA”), and “abortion doula” services. The ordinance excludes aid and referrals for abortions performed outside of the city.
The second section of the ordinance, section 509.10, makes it a municipal-level criminal offense to perform an abortion that violates any statute enacted by the Ohio legislature, including those that are currently enjoined by Ohio federal courts (such as the heartbeat ban). Section 509.10 makes it a crime to “aid or abet” an abortion that is prohibited under this section, but aiding and abetting is defined more broadly than under 509.09 because it also prohibits “engaging in conduct that makes one an accomplice to abortion” under Ohio’s “complicity” statute, R.C. 2923.03. Speech or conduct protected by the First Amendment is exempted from the “aid and abet” provision. Section 509.10 has a significant practical impact, because it purports to apply to individuals and organizations who provide assistance to patients seeking abortions at clinics outside of Lebanon. For example, according to the plain language of the ordinance, a person who knowingly drives a Lebanon resident in her second trimester to or from a clinic outside of Lebanon for an abortion procedure would be criminally liable.
LEGAL THEORY:
The ordinance violates due process because it is vague and overbroad, it also violates free speech protections, and exceeds the City’s home rule authority.
STATUS:
On May 11, 2022 we filed a Complaint and Motion for Preliminary Injunction on behalf of the National Association of Social Workers and Women Have Option Ohio against the City of Lebanon and its officers in U.S. District Court for the Southern District of Ohio. Judge Susan Dlott held a conference on May 12, at which Defendants did not appear. On May 26 parties entered a Stipulation that the City will amend the ordinance in response to our Complaint and would not enforce the abortion ban in the interim. Likewise, the Stipulation holds the PI in abeyance pending the amendment of the ordinance, and provides 7 days after the ordinance is amended for us to determine if we will renew the PI motion. The stipulation was modified to provide that any replacement ordinance would not be enforces for 40 days after enactment, and that we have 10 days from the date of enactment to inform the court whether we intend to proceed with our motion for preliminary injunction.
On September 19, the City of Lebanon enacted a new version of the ordinance. Parties stipulated on October 11 that the ordinance will not be enforced before November 21, and Plaintiffs have until October 25 to notify Defendants and the Court whether they will renew or update their Motion for Preliminary Injunction.
