On Tuesday, June 11, 2024, the Amarillo City Council voted to reject the Sanctuary City for the Unborn (SCFTU) Ordinance, placing the decision to send the ordinance to the ballot in the hands of the SCFTU Citizen Initiative Petition Initiating Committee. On Friday, June 28, 2024, all eleven members of the initiating committee voted to send the ordinance to the ballot for voters to decide on November 5, 2024. City Secretary Stephanie Coggins presented the initiating committee’s request at their next meeting on July 9, 2024, but the Amarillo City Council did not want to use the same ballot language that had been used in cities like Lubbock, Abilene, San Angelo, Plainview, and Athens. The Amarillo City Council wanted the ballot language for their ordinance to say more.
After several city council meetings took place debating the wording of the ballot language, the city council was set to consider language that included the phrase “establishing a criminal offense.” Such language prompted much pushback from the authors of the ordinance and the initiating committee as the ordinance does not create a criminal offense, but creates a private right of action. In a July 29, 2024 letter to the Mayor and City Council, Amarillo SCFTU Initiating Committee Attorney Jerad Najvar wrote,
The ballot proposition, as currently drafted, includes an inaccurate statement that must be corrected in order to ensure the validity of the election, whatever the outcome… the Ordinance cannot be read as creating a criminal offense. The proposition is materially misleading to voters to the extent it claims the Ordinance creates a criminal offense. It should instead say that it creates a civil action or civil liability.
Seeing the language had not been corrected, but that the resolution with such language had been placed on the consent agenda for adoption on August 13, 2024, Attorney Jerad Najvar sent a follow-up email. The email stated,
I am writing once more before the Council’s meeting at which (the agenda suggests) the Council intends to proceed to approve proposition language that is materially misleading as outlined in the attached letter dated 7/29/24. If this language is not fixed to remove the statement that the Ordinance creates a criminal offense, we will sue the City to correct it before the election. Time still remains to suggest a revised version and approve it, rather than proceeding with this misleading version. If Council proceeds with the presently drafted language, the City will be sued, and if for some reason the election proceeds under the present proposition, the City will likely be sued again by the losing side in the election. The obvious solution is simply to correct the language.
During the time reserved for public comment at the August 13th council meeting, Attorney Jace Yarbrough appeared before the Mayor and City Council representing the Amarillo SCFTU Initiating Committee. Yarbrough urged the council to amend the draft ballot language to accurately describe the proposed ordinance, stating, “The current draft ballot language describes the Proposed Ordinance as ‘establishing a criminal offense.’ This statement is incorrect. The Ordinance specifically, explicitly, and intentionally does NOT establish a criminal offense. This is clear from the Ordinance’s text and structure. If allowed to appear on the ballot, this inaccurate text will open the city up to legal liability regardless of the outcome of the November election.”
Yarbrough also weighed in on the structure of the ordinance, and how the private enforcement mechanism is the same enforcement mechanism used in the Texas Heartbeat Act and the very same mechanism that made the state law successful.
Yarbrough stated:
In addition to explicitly disavowing public enforcement in its text, the structure of the Proposed Ordinance’s enforcement mechanism also makes clear that it creates no criminal offense. Instead of public enforcement by state officials, the Ordinance establishes a private right of action that authorizes individuals to sue anyone who violates it. As you may be aware, this enforcement mechanism was modeled after that of the Texas Heartbeat Act.
Even before Roe and Casey were overturned, the Supreme Court, while considering the Texas Heartbeat Act in Whole Woman’s Health v. Jackson, confirmed that enforcement by state officials is not possible under the private enforcement scheme contained in laws like the Ordinance. 595 U.S. 30, 40 (2021). Hence, because public enforcement under the Ordinance is impossible, the language of the Ordinance can never be construed to create a criminal offense.
Yarbrough concluded his speech before the Mayor and City Council, “Though I do not know each of the members of this council, I hope it is not presumptuous of me to say that I have no doubt that you, like me, share the Christ-centered, unapologetically pro-life convictions of this community. In the dark and confused times in which we live, it is incumbent on folks like us to stand for our values. I urge this council to stand for Life by ensuring the Proposed Ordinance is correctly described through the language that will be included on the November ballot, and avoid unnecessary and costly litigation that would inevitably arise from inaccurate ballot language.”
After a discussion initiated and led by Councilman Don Tipps, the city council took the suggestion of City Attorney Bryan McWilliams and changed the ballot language from “establishing a criminal offense” to “shall be unlawful.” The vote to amend the ballot language passed 4-1, with Councilman Josh Craft voting against the amendment.
The ballot language adopted by the city council, and set to appear on the November 5, 2024, ballot as Proposition A, reads as follows:
THE CODE OF ORDINANCES OF THE CITY OF AMARILLO, TEXAS SHALL BE AMENDED TO ADOPT AN INITIATED ORDINANCE, SUBMITTED BY THE AMARILLO SANCTUARY CITY FOR THE UNBORN CITIZEN INITIATIVE PETITION INITIATING COMMITTEE, DECLARING THE CITY OF AMARILLO A SANCTUARY CITY FOR THE UNBORN; DECLARING THAT ABORTION AT ALL TIMES AND AT ALL STAGES OF PREGNANCY IS UNLAWFUL UNLESS AN ABORTION IS PERFORMED TO SAVE THE LIFE OF A PREGNANT WOMAN IN A MEDICAL EMERGENCY; FINDING THAT ABORTION-INDUCING DRUGS ARE DECLARED CONTRABAND; AND SHALL BE UNLAWFUL FOR ANY PERSON TO MANUFACTURE, POSSESS, OR DISTRIBUTE ABORTION INDUCING DRUGS IN THE CITY OF AMARILLO; CALLING UPON EVERY UNITED STATES ATTORNEY IN THE STATE OF TEXAS, BOTH PRESENT AND FUTURE, TO INVESTIGATE AND PROSECUTE ABORTION PROVIDERS AND ABORTION-PILL DISTRIBUTION NETWORKS UNDER 18 U.S.C. SECTIONS 1461 AND 1462 AND UNDER THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT (RICO); ENCOURAGING ALL VICTIMS OF ABORTION PROVIDERS AND ABORTION-PILL DISTRIBUTION NETWORKS, INCLUDING MOTHERS, FATHERS, AND SURVIVING RELATIVES OF ABORTED UNBORN CHILDREN, TO SUE RACKETEERING ENTERPRISES UNDER CIVIL RICO; CALLING UPON DISTRICT ATTORNEYS THROUGHOUT THE STATE OF TEXAS INVESTIGATE AND PROSECUTE ALL TEXAS ABORTION FUNDS AND THEIR DONORS THAT HAVE AIDED OR ABETTED ABORTIONS IN TEXAS; PROHIBITING ABORTIONS WITHIN THE CITY OF AMARILLO; PROHIBITING ABORTIONS ON CITY OF AMARILLO RESIDENTS; PROHIBITING ABORTION TRAFFICKING ON AN UNBORN CHILD; PROHIBITING ABORTION-INDUCING DRUGS IN THE CITY OF AMARILLO; PROHIBITING ANY ORGANIZATION THAT VIOLATES 18 U.S.C. SECTIONS 1461 OR 1462 BY FACILITATING ABORTIONS FROM OPERATING OR DOING BUSINESS IN THE CITY OF AMARILLO; PROHIBITING THE TRANSPORTATION OR DISPOSAL IN THE CITY OF AMARILLO OF THE REMAINS OF AN UNBORN CHILD KILLED BY AN ABORTION; PROVIDING A PRIVATE RIGHT OF ACTION; PROVIDING FOR AFFIRMATIVE DEFENSES; PROVIDING FOR SEVERABILITY AND PROVIDING AN EFFECTIVE DATE.
The ballot language for the City of Amarillo’s 18-page ordinance contains a total of 293 words. While the word count for Amarillo’s ballot language is longer than the ballot language used by other cities, the word count is not due to the length of the ordinance. In November 2022, the City of Abilene and the City of San Angelo both had 18-page Sanctuary City for the Unborn Ordinances on their ballot. The ballot language for the City of San Angelo was 41 words (252 words shorter than Amarillo’s ballot language), while the ballot language for the City of Abilene was 48 words (245 words shorter than Amarillo’s ballot language).
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