The Conservative Strategy to Ban Abortion Nationwide

  

The Conservative Strategy to Ban Abortion Nationwide

A local referendum in Texas is part of a long-term effort to block abortions through the courts.

October 30, 2024

A group of prolife demonstrators.
An anti-abortion rally in Amarillo, in February, 2023.Photograph by Meridith Kohut / NYT / Redux

In mid-October, at a bank in downtown Amarillo, the local chapter of the League of Women Voters hosted an educational forum about proposed ordinances that would be on the ballot in November. Most were procedural—adding members to the city council, changing the process for a recall vote—but the real energy in the room circulated around Proposition A, also known as the “Sanctuary City for the Unborn Ordinance.”

In recent years, a so-called sanctuary movement, which seeks to outlaw abortion by passing local ordinances, has persuaded a number of Texas cities—Lubbock, Abilene, San Angelo—to sign on. A pro-life ordinance would seem to be a slam dunk in a place like Amarillo, a conservative city in the Texas Panhandle that’s been called the “shiny brass buckle” of the Bible Belt. The city spans two counties—Potter County, where nearly seventy per cent of the population voted for Trump in 2020, and Randall County, where almost eighty per cent did. “Voting Republican here, it’s just a given,” a woman standing by a snack table said.

But the campaign for Proposition A was turning out differently in Amarillo. The proposed ordinance goes a step further than banning abortion in the city. It attempts to prohibit people who live in Amarillo from obtaining abortions in other states (with an exception for the life of the mother) and others from even passing through Amarillo on their way to obtain abortions. A woman attending the event with her daughter told me that, although she was “absolutely” pro-life, something about Proposition A didn’t sit right with her. “Months ago, when they first started to push for it, I didn’t understand it,” she said. “And the more I understand it, the less I like it.”

Across town, at the Comanche Trail Church of Christ, a smaller but more fervent crowd had gathered in support of the ordinance. A panel of five women and two men sat on a stage, flanked by posters that read “Vote for Life.” “It is so important that we pass Proposition A—it protects our city,” the moderator, Bonnie Burnett, told the crowd.

In Texas, abortion is illegal in nearly all circumstances. But the downfall of Roe v. Wade has not led to the end of abortions; it has just put more burdens on women seeking them. Around thirty-five thousand Texans received out-of-state abortion care last year, according to the reproductive-rights organization the Guttmacher Institute. Many of them travelled through Amarillo, which sits at the crossroads of Interstates 40 and 27, en route to states such as New Mexico, Colorado, and Kansas, where abortion is legal. Proposition A’s supporters say that it will stop “abortion trafficking.” Its opponents call it a travel ban. “This issue has split our community in half,” Tom Scherlen, an Amarillo city-council member, told me. “And it’s only going to get uglier.”

Proposition A is alarming enough on its own. But it’s part of a bigger strategic play. At a time when Donald Trump is insisting that abortion should be left up to the states, a fervent group of anti-abortion activists are working behind the scenes to achieve a different goal. “The Dobbs decision really was a pro-choice decision, by leaving it up to the states instead of saying that abortion is a great social, moral, and political evil,” Mark Lee Dickson, a minister from East Texas, who is the driving force behind the sanctuary-city movement, told me, referring to the decision that overturned Roe. Dickson’s goal is nothing less than a nationwide ban on abortion, enacted by the courts. The path there may well lead through the Texas Panhandle—which means that the fight against it is happening here, too.

Last summer, Gabby Mireles heard from her friends that Dickson was coming to Amarillo. Whatever Dickson had planned for the city, Mireles’s friends figured it wouldn’t be good. They had decided to protest outside the church he was speaking at, and they wanted her to join them.

Mireles grew up in Amarillo, with parents who came to the U.S. from Mexico. Her father works in a slaughterhouse—“But don’t feel sorry for him, because he could retire, he just doesn’t want to,” she told me—and her mother at an Amazon fulfillment center. Mireles was raised Catholic, but her mother was also “a realist” who had no qualms about taking birth control, no matter what the priests said. Mireles grew into a nonconformist who dyed her hair bright pink and hung out with a small, tight-knit cohort of progressives in Amarillo. She briefly moved to Austin, but rents there were too high. Amarillo could be frustrating, but it was home. Still, the idea of attending a protest unnerved her. “I look a certain way,” she told me. “You can see me in a crowd.” She worried that she’d lose her job, at a local nonprofit. (“I live in Texas. They can fire you for anything.”) And she wondered if there was even a point to advocating for reproductive rights in a community this conservative and religious. “But then I was, like, You know what? I’m sick of these people. Everything is Jesus, Jesus, Jesus,” she said. “There’s a bridge going to downtown, and they always have a pro-life billboard there, even though we haven’t ever had legal abortion here—you always had to go to Lubbock, or to Dallas. So I thought, You know what? I will go.”

Mireles and a small group of friends drove to Trinity Fellowship Church, a megachurch in the city’s southwest suburbs that draws thousands of worshippers every Sunday. Seven of them stood outside with signs reading “Abortion Is Health Care,” while two, wearing modest clothes to blend in with the crowd, went inside to hear Dickson for themselves.

Dickson’s rise to prominence began in 2019, when he was in his early thirties and working as a pastor in a strip-mall church in Longview. Louisiana had just imposed new restrictions on abortion clinics, and Dickson feared that a Shreveport clinic might opt to shift its operations into Texas—where, at the time, state law permitted abortion up to twenty weeks of gestation. Dickson worked with leaders in Waskom, Texas, to draft an ordinance declaring it a sanctuary city for the unborn, banning abortion within the town limits. He had never spoken at a city-council meeting before, and he prayed to God, asking what he should wear. The answer was “very clear,” he told me: “Vans, bluejeans, button-up shirt, a blazer, and a backwards black cap.” The council passed the ordinance, and Dickson has sported the outfit ever since.

The Waskom ordinance opened the town to legal challenges, but Dickson had found a workaround. Jonathan Mitchell, the former solicitor general of Texas, suggested that the abortion ban be enforced via civil lawsuits, rather than criminal penalties—a tactic that made it difficult to challenge the law’s constitutionality. During the next few years, dozens of communities in Texas passed similar sanctuary-city ordinances, with Dickson’s help: among them, Rusk (population 5,618), Gary City (population 311), and New Home (population 320). These were small towns, for the most part, and none of them had abortion clinics to begin with, so the ordinances didn’t have much practical effect. But Dickson was building allies and growing more ambitious. When Planned Parenthood announced that it would open a clinic in Lubbock, a city of a quarter of a million people, Dickson lobbied to get a sanctuary-city ordinance on the ballot. It passed by healthy margins, and the clinic stopped providing abortions.

In 2020, Texas passed S.B. 8, also known as the Texas Heartbeat Act, which banned abortions after six weeks of gestation—at the time, the strictest anti-abortion law in the country. S.B. 8, which Mitchell wrote, relied on a similar civil-enforcement mechanism, allowing private citizens to sue anyone who “aided and abetted” an abortion. Its critics called it “the bounty hunter law,” because it awarded successful plaintiffs a minimum of ten thousand dollars. Reproductive-rights groups, anticipating a flurry of lawsuits, set up legal-defense funds for clinics. “We were in a world in which we still had Roe. Everyone thought, This can’t be happening—you can’t turn people into vigilantes to enforce things that are clearly unconstitutional,” Marc Hearron, the senior counsel for the Center for Reproductive Rights, a national group, said. But, as clinics confronted the prospect of protracted litigation against doctors, nurses, and staff, they began to close their doors; by the time S.B. 8 went into effect, on September 1, 2021, there were few abortion providers left in Texas to sue. Alamo Women’s Reproductive Services in San Antonio closed in 2022. “Mark Lee Dickson eliminated abortions in Texas before the fall of Roe,” Andrea Gallegos, who ran the clinic alongside her father, said. (It has since reopened in Illinois and New Mexico.) “I’d like to make him smaller than what he is, but that’s a big deal.”

Mireles’s friend Lindsay London was one of the two activists who snuck into Dickson’s talk at Trinity Fellowship—“dressed like a Mennonite,” she told me. There, she heard Dickson announce his plans not only to make Amarillo a sanctuary city for the unborn but to enact a travel ban, which would use a bounty-hunter enforcement mechanism, similar to the one in S.B. 8. “I had never heard the term ‘abortion trafficking’ before,” London said. “All of our adrenaline was really high. We just kind of said, This is really happening, what are we going to do?” London, Mireles, and four others agreed to meet every week to strategize; within a month, they’d founded a nonprofit, Amarillo Reproductive Freedom Alliance, aimed at defeating the ordinance. Meanwhile, Dickson kept returning to Amarillo to speak at local churches. “It wasn’t just like somebody fringe coming here to give a talk, which happens all the time—he kept coming. So we knew we were fighting something substantial,” another of the ARFA founders, Fariha Samad, said.

Last year, after the meeting at Trinity, Amarillo’s city leadership—four city-council members and the mayor—heard from Dickson and Mitchell, who were urging them to pass a sanctuary ordinance swiftly. “We need the ordinance enacted as soon as possible, preferably by the end of this month but no later than the end of this year,” Mitchell wrote in a letter to Mayor Cole Stanley that October. (The letter was first reported this past September, by the American Prospect magazine.) Although it was not widely known at the time, the urgency was part of a broader strategy. Anti-abortion advocates had brought a lawsuit against mifepristone, one of two pills commonly used for medication abortions. They had filed suit in Amarillo, where nearly all federal cases are heard by one judge, Matthew Kacsmaryk, who has made no secret of his anti-abortion views. In April, Kacsmaryk had issued a preliminary injunction suspending the F.D.A.’s approval of mifepristone. The case was making its way to the Supreme Court, but Mitchell knew that there was a potential issue with standing—the plaintiffs in the case, several pro-life doctors and a Tennessee group that had newly incorporated in Amarillo, might not be able to prove that they had been harmed by the drug. If the city council passed Dickson and Mitchell’s proposed ordinance—which, along with the travel ban, included a prohibition on mifepristone—and opted to join the lawsuit, “Amarillo will indisputably have standing to sue,” Mitchell wrote in an e-mail to Stanley.

Mitchell had good reason to believe that Amarillo’s mayor and city-council members—all of them conservative white men—would fall in line. In nearby Lubbock, the county commissioners had passed a sanctuary ordinance three weeks after receiving the text of the bill from Dickson. But, at the same time that Dickson and Mitchell were lobbying the council, ARFA was mobilizing. “Previous reproductive-rights work in Amarillo was mostly protesting, or connecting folks with mutual aid,” London said. “We knew we were going to have to get involved in a civic way that we hadn’t before.” Through public-information requests, they obtained a copy of the proposed ordinance, which was more than fifteen pages long. They began arranging meetings with council members to voice their concerns. They were careful to frame their opposition in language that would resonate, saying that the ordinance was government overreach, that it impinged on freedom, that it was being pushed by outside forces, and that it would harm the local economy and turn neighbors against one another.

ARFA found an early and unexpected ally in Scherlen, the city-council member, who describes himself as conservative and pro-life. “He was the first one of the city-council members to really listen to us and take us seriously and realize that we weren’t being hysterical, or overreacting,” Courtney Brown, an ARFA co-founder, said. The group took to calling him “Grandpa Tom.” “I will say, throughout this whole thing, they have been very pleasant to us,” Scherlen told me. “I never thought I would’ve been identified with them. It’s a shock to me and it’s a shock to everybody who knows me.”

The council took up the ordinance at an October, 2023, meeting. ARFA members and their supporters, dressed in green, crowded the council chambers—as did their anti-abortion counterparts, dressed in red. “We love the fact that we are a full room,” Stanley said, with trepidation in his voice. When it was Scherlen’s turn to speak, he voiced his objections to the ordinance’s civil-enforcement provision: “I don’t believe in that at all. That takes me back to World War Two and what the Nazis did.” Other council members began to sound skeptical, too. The meeting dragged on for so long that the council ordered more than a dozen pizzas for the crowd. Several months later, they formally rejected the ordinance, by a vote of four to one. Amarillo didn’t join the mifepristone case, which, as Mitchell had predicted, the Supreme Court eventually dismissed based on a lack of standing. (Since then, Missouri, Idaho, and Kansas have signed on to a revised version of the lawsuit, which is working its way through the courts.)

“I was definitely the one in the group saying, ‘We’re not going to be able to change anyone’s mind, let’s please not use the A-word.’ I was so scared,” Mireles said. “But people have really started to open up. People would come up to me in public and say, Thanks for what y’all are doing. People are having conversations that never in a million years I thought would happen.”

In mid-October, ARFA held a meeting at a community center in a low-income neighborhood, where a handful of volunteers ate doughnuts under humming fluorescent lights. Although the sanctuary-city ordinance had been shot down by the city council, its supporters had gathered enough signatures to put it on the ballot in November. ARFA knew that defeating the measure a second time would be an uphill battle: elsewhere in Texas, when local governments had rejected sanctuary-city bills, Dickson had fought to put the issue directly to voters wherever city charters allowed. In every case, the ordinances had passed, albeit in low-turnout elections. Still, ARFA members believed that, if Amarillo residents understood what was at stake, they would oppose Proposition A.

“It’s about using language that people in the heartland of the Panhandle can understand,” Brown, the ARFA co-founder, said. “Language that isn’t, you know, woke.”

Mireles mentioned that when she’d attended a national conference for reproductive-rights activists, in September, someone had asked her whether ARFA used focus groups to shape its messaging for locals. Brown and Samad laughed incredulously.

“We know how to talk to them because we are them,” Samad said.

I accompanied two ARFA volunteers, Otto Beyer and Antoinette Grice, to a neighborhood of one-story brick houses for a canvassing session. Beyer, a goofy, gap-toothed Amarillo native, had attended evening programs at Trinity Fellowship Church until he’d had a political awakening in college. Today, he teaches A.P. world history at Amarillo High School, where many of his students assume he’s a Trump supporter. That week, two students had come to school wearing homemade shirts that said “In Springfield, they’re eating the dogs.” Grice, a pharmacist, was a first-time volunteer, and a relative newcomer to Amarillo.

At the first half-dozen houses, no one was home. Beyer left a door hanger urging residents to vote against Proposition A. ARFA members jokingly called it “the conservative hanger”: it said “PROTECT YOUR RIGHTS” in large block letters, above a picture of an eagle and a quotation from Governor Greg Abbott: “If you want to start a fight with Texans, just try taking away their freedom.”

One house featured an elaborate Halloween display: skeletons lounging in an oak tree; a skeleton scaling a flagpole as if to seize the Texas flag atop it. A woman wearing leggings answered the door. She nodded as Beyer described Proposition A as government overreach. “I’m pretty sure I’m against it,” she said. At another house, a gruff man with a tattoo of a thin-blueline flag on his shoulder cut Beyer off as he made his pitch: “We know about it, and we’re already voting that way.” Down the block, a house with a freshly mowed lawn displayed Trump-Vance and Ted Cruz campaign signs. “We’re pretty conservative,” the man who opened the door said, but he, too, sounded uneasy about the ordinance. “You start putting a lot of pressure, like you can’t do this, you can’t do that—that just changes the whole deal,” he continued. “You have to look inside your soul and see what the Lord tells you to do.”

“Exactly,” Beyer said. “It’s a private choice, I feel like.”

As Beyer and Grice walked away, they seemed heartened. “It sounded like he was against it, right?” Beyer said. “I have a belief that if people hear about it, they’ll be against it. But sometimes I worry that I’m in a bubble, and that I’m underestimating the power of some of these churches.”

When I spoke with Beyer again later that evening, he told me that he’d had a more alarming experience during his afternoon canvass: “This one guy was, like, ‘You’re talking to the wrong person. If there’s complications, I think the mother should die with the baby.’ And I can’t help myself—I was, like, ‘Well, can I leave some literature, just in case?’ ”

Mitchell and Dickson have achieved some unlikely victories, but it’s unclear whether their success will continue. Hearron, of the Center for Reproductive Rights, told me it was unlikely that a travel ban could ever be enforced. “They’re just fear tactics, and the more that we give them the space, the more that we talk about them, it could spread the fear.”

Dickson said he hopes that the threat of litigation will inspire clinics in New Mexico, Colorado, and Kansas to refuse abortion care to women from Amarillo, or who’ve travelled through Amarillo. After all, S.B. 8 had prompted Texas abortion clinics to shut down even before a single lawsuit was filed. But, after dealing with Mitchell and Dickson’s tactics for years, some providers saw things differently. “In hindsight, my father and I often say, should we have kept seeing patients after S.B. 8? Because the lawsuits didn’t really come the way that we expected them to,” Gallegos, of Alamo Women’s Reproductive Services, told me. She said that, even if Proposition A passes, the clinic has no plans to alter its policies at its New Mexico and Illinois locations: “We’re not going to pick and choose who we take care of. If someone needs us from that area, we’re going to take care of them.”

But there are other concerning aspects to Proposition A. The ordinance cites the Comstock Act, a century-old anti-vice law that prohibits mailing pornography, contraceptives, or abortion-related supplies across state lines and has long been considered irrelevant. (In 1971, two years before the Roe decision, Congress removed the language about contraceptives.) “It’s clear that what they’re trying to do is find a venue and a fact pattern where they can breathe life back into the Comstock Act, to expand it to effectively be a national abortion ban,” Hearron said. “The anti-abortion movement is not going to stop at the state-by-state level, no matter what they say.”

Such a ban would be widely unpopular. A majority of Americans supported Roe, and, after Dobbs, every state that has had a popular referendum on the right to abortion has endorsed it. This may be part of the reason Jonathan Mitchell told the Times earlier this year that he believes “the pro-life groups should keep their mouths shut as much as possible until the election.”

Dickson has no such qualms. One evening in Amarillo, I met him in a conference room at a Hampton Inn, next to the Big Texan, a novelty restaurant where diners who manage to choke down a seventy-two ounce steak, plus fixings, in under an hour don’t have to pay for their meal. (Otherwise, it costs seventy-two dollars.) He had been in and out of meetings all day, but he seemed to have boundless energy to discuss abortion. At one point in our conversation, he recited portions of the Comstock Act from memory; at another, he unzipped his laptop bag and pulled out two small models of fetuses, which he held in his cupped palm.

Dickson follows his opponents closely. “This came out yesterday,” he said, pulling an article from The Nation up on his phone. “There are lots of jabs at me in here—‘gestation-obsessed,’ ‘forced-birth activist.’ Oh, and this one made me laugh—‘men like Dickson, whom no one wants to have a baby with.’ ” (Dickson is unmarried and opposed to sex before marriage. “At this point in my life, I feel like I’m one of the most hated people in America, from the abortion industry side of things, and I’m also extremely hated by those who are Republican who don’t want to end abortion in America. So, uh, it’s tough,” he told me. “I would assume that I’m going to be single the rest of my life, until I’m killed or I die.”)

Dickson seemed baffled that his efforts in Amarillo hadn’t gone smoothly as he’d expected. “One of the most controversial things in Amarillo has been the private-enforcement mechanism—hello, that’s in all the sanctuary-city ordinances in Texas, and the Heartbeat Act. People say they support the Heartbeat Act, and then you start asking them questions, and they’re, like, ‘Oh, well, I’m against this part.’ ”

I said that the more people knew about the kinds of laws he was trying to get passed, the less they seemed to like them.

Dickson seemed undaunted. “I’m doing a lot of things that are pissing people off, but at the same time, to some degree, I’m a gift to the pro-abortion movement. Because if they’re right, and I’m wrong, and most of America is pro-abortion, then me going around to all these cities is just going to prove their point,” he said. “The only way that I’m a real threat is if I’m right that the majority of America is pro-life.” ♦