On Thursday, October 20, KTAB/KRBC News ran a story entitled, “Is Abilene’s potential Sanctuary City for the Unborn ordinance enforceable? Local level ballot measure raises concerns ahead of November election.” The story, written by reporter Tyler Henderson, questioned several aspects of the Abilene SCFTU ordinance which Abilene voters will vote on in the November election.
Unfortunately, Councilman Lynn Beard, who Henderson interviewed, did not do his research into Texas’ current abortion laws as he made the “prohibition of abortion coverage in employer-provided health insurance plans” much more “controversial” than it ever should have been. In not fact-checking Councilman Beard’s claims, Henderson only further spread the confusion.
While the story by KTAB / KRBC contained several errors, this article has one purpose and one purpose only: to set the record straight on the proposed Abilene SCFTU Ordinance and how it impacts “abortion coverage in employer-provided health insurance or benefits.”
What if my employer in Texas pays for abortion coverage in their employer-provided health insurance or benefits?
No business in Texas should be paying for abortion coverage in their employer-provided health insurance or benefits, as abortions are prohibited in the State of Texas from the moment of conception.
All businesses should follow the laws of the State of Texas and the laws of the city in which they reside – period. If your employer in Abilene, Texas is paying for abortion coverage, they are in violation of the laws of the State of Texas.
The Guttmacher Institute, which is described as a “leading research and policy organization committed to advancing sexual and reproductive health and rights worldwide,” released an updated report on this subject on October 1, 2022.
According to the Guttmacher Institute, abortion coverage is banned in all private insurance plans, health exchanges, and in all insurance policies for public employees in the State of Texas with the only exception being the life of the mother or in cases where there is a “substantial and irreversible impairment of a major bodily function.” The proposed ordinance in the City of Abilene does not contradict the laws of the State of Texas or this report from the Guttmacher Institute.
The Abilene Sanctuary City for the Unborn Ordinance reads in Section 20.88.(a):
“It shall be unlawful for any employer in the city of Abilene, Texas, and for any person acting on that employer’s behalf, to offer, provide, or arrange for coverage of abortion in any health-insurance policy or plan, flexible spending account, health savings account, or any other benefit provided to its employees, except for abortions performed in response to a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”
So the question becomes, what does the proposed Abilene Ordinance do which is not already in state law?
The ordinance states in Section 20.88(b):
“Whoever violates this section shall be subject to the maximum penalty permitted under Texas law for the violation of a municipal ordinance governing public health, and each violation shall constitute a separate offense.”
If this law is adopted, and a business in Abilene violates the law of the city of Abilene, then the City of Abilene has the ability to fine the business in violation $2,000 per violation per offense. In addition to this, officials in the City of Abilene have a responsibility to report employers who are guilty of this act to the appropriate district attorneys for criminal prosecution under article 4512.2 of the Revised Civil Statutes and Section 7.02 of the Texas Penal Code.
4512.2 of the Revised Civil Statutes states, “Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice,” and Section 7.02 of the Texas Penal Code states:
“A person is criminally responsible for an offense committed by the conduct of another if: (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or (3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.”
In addition to fines imposed by the City of Abilene, Section 20.92(a) creates a private right of action, stating, “Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action in state court against any person who violates or intends to violate . . . 20.88.”
Some may take issue with the private right of action being used against employers who would provide insurance coverage for abortions. However, Chapter 171.208(a) of the Texas Health and Safety Code already addresses this, reading:
“Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who . . . knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter.”
So what makes this state law different from the proposed local law?
The state law is a part of the Texas Heartbeat Act, only allowing lawsuits against abortionists and those who aid and abet the abortion of children with a detectable heartbeat. The proposed local law goes further (as allowed in Sec. 171.206, b(3), allowing lawsuits to be filed against abortionists and those who aid and abet the abortion of children from the moment of conception.
Early voting in Abilene will start on Monday, October 24 and will last until Friday, November 4, with election day taking place on Tuesday, November 8. At that time, citizens of Abilene will join citizens in Athens, Plainview, and San Angelo in determining if their cities will incorporate further restrictions on abortions as a part of their city code. When the citizens of these cities cast their vote, one can only hope that their vote is not cast based on the misinformation of our state laws, but a fair understanding of them.
What voters in Abilene need to realize is simple: Abortion is the killing of an innocent human being and no business should ever be involved in helping pay for their employees to end the lives of their children.
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Photo Credits: All photos provided for use by Mark Lee Dickson