As we brace for the imminent loss of the protections offered by Roe v. Wade and a future without the federal right to legal abortion, access to care is increasingly going to be determined by the state, and maybe even the city, that a person lives in.
It remains to be seen how states hostile to abortion access might try to enforce abortion bans across state lines. Connecticut recently passed the Reproductive Freedom Defense Act, a law that will protect medical providers and patients seeking abortion care in Connecticut who may be traveling from states that have outlawed abortion. Other states like New York are dedicating funding for abortion providers and nonprofit organizations to increase access to care, including support for people traveling to the state. Going forward, we’ll continue to see a patchwork of laws and resolutions at the local level, as blue cities in red states and blue states in red regions use whatever legislative tools they can to protect and expand access to reproductive health care.
In Texas the situation is urgent. Since Senate Bill 8, which bans abortion care after around six weeks of pregnancy and allows private citizens to sue providers or anyone suspected of aiding and abetting an abortion, was passed in September 2021, many patients have already been forced to travel out of the state for care. Abortions in Texas dropped 60 percent in the first month of the ban. Abortion funds like the Frontera Fund and the Lilith Fund are connecting patients with resources, funding abortion services, and increasingly acting as travel agents for people seeking care.
Texas is one of thirteen states to have a trigger ban on the books, ready to go into effect when Roe falls. In 2021, the Republican-controlled state legislature passed a law that would criminalize almost all abortions as a first degree felony with punishment of up to life in prison, plus fines up to $100,000 for providers who violate the abortion ban. It’s expected that twenty-six states are likely to ban abortion when Roe is overturned, according to the Guttmacher Institute.
But while opponents of the right to abortion are in motion in Texas, so are defenders. A new resolution sponsored by Austin City Council Member José “Chito” Vela offers a creative carveout to allow city residents to continue to access care after the state abortion ban goes into effect. The GRACE Act (Guarding the Right to Abortion Care for Everyone) is a functional decriminalization of abortion in the city of Austin. The carveout is accomplished through a resolution that will make it difficult to prosecute cases against providers charged with violating the abortion ban.
The proposed policy recommendation would prohibit the investigation of abortion by any Austin personnel, including the police. The resolution, which would go into effect within thirty days after city council’s approval, would ban the use of city funds to investigate anyone who is suspected of providing abortion care, and it would instruct city police to turn a blind eye toward any reports of violations. The police department would designate any reports of violations of the abortion ban as the lowest possible priority. They would keep records of reports made, but wouldn’t pursue investigations and wouldn’t tag reports as abortion-related — in effect using bureaucracy as a protective mechanism.
A spokesperson for City Council Member Vela’s office says, “The resources of the City of Austin must always be dedicated to the health and wellbeing of its residents, especially members of marginalized communities who are disproportionately affected by obstacles to abortion care.”
The aim of the resolution is to mitigate the legal risks as much as possible on a local level. It’s expected that the city police chief would choose to follow the recommendation, making its effectiveness entirely dependent on one sympathetic appointed official with enormous power. And because it’s a policy recommendation, not a law, it will be tough to challenge in court.
Because Senate Bill 8 is a state law that is civilly enforced, it will still be legally risky for clinics in Austin to provide abortion care after fetal activity is detected. But it’s an important step to protect care for those early in their pregnancy within the city. Council Member Vela’s office is working with Ground Game Texas and Local Progress to facilitate policy sharing between cities in Texas; if this resolution is successful, other cities in the state could adopt it.
The GRACE Act is based on a similar policy recommendation from 2020, when the Austin City Council approved a resolution to stop arresting or ticketing people for most low-level marijuana possession offenses. Its mechanism of de-prioritizing marijuana-related offenses and banning city funds for their use was effective. There have been no arrests for the personal possession of marijuana in Austin since October 2020.
Progressive cities in conservative-led states will be paying close attention to how this resolution plays out. Though Texas is unique in having abortion bans that could carry criminal penalties and penalties enforced through civil suits, other conservative-led states may soon be in a similar position. The resolution’s protections could help thousands of people get care they would otherwise have to travel out of state for. It could also be replicated to protect those providing gender affirming care to trans patients in states criminalizing that care.
These limited protections are far from what we really need: abortion care that’s free and accessible to all. But realistically, local policies are going to be the future in the near-term. Unless Congress is able to pass a federal law to make abortion accessible, supporters will have to pursue local protections, and patients will have to navigate an increasingly complex web of local restrictions.