On Thursday, May 9, the City Council of Clarendon (pop. 1,877), considered an ordinance outlawing abortion and abortion trafficking within its city limits. While the majority of those in attendance were in favor of the ordinance, Alderman Eulaine McIntosh led the charge to defeat the ordinance. The outcome of the unanimous 3-0 vote against the ordinance was a surprise to many and generated headlines across the State and the Nation.
The Austin American-Statesman’s headline reads, “A tiny Texas town votes against becoming a Sanctuary City for the Unborn“;
The Texas Tribune’s headline reads, “Clarendon City Council rejects ordinance banning travel to access abortion outside of Texas“; and Newsweek’s headline reads, “Abortion Rights Get a Win in Texas.” Clarendon, a city based on “Christianity, temperance, and education,” was beginning to get a new reputation.
While the ordinance was on the agenda on Thursday, April 11, the city council did not take any action at that time. In an open records request, it was revealed that after the council meeting, Alderwoman Eulaine McIntosh reached out to her contact with the ACLU of Texas, stating, “I wanted to let you know things actually went very well tonight.”
Further research revealed that Alderwoman Eulaine McIntosh had been working with Stephanie Chiarello, who is the Chief of Staff for House Representative R.D. “Bobby” Guerra, a Democrat elected official from Edinburg, Texas—over ten hours away. Chiarello also serves on the Board of Directors of the Texas Freedom Network—an organization founded by former Planned Parenthood president Cecile Richards, daughter of former Texas Democrat Governor Ann Richards. According to Influence Watch, “The Texas Freedom Network is a left-of-center lobbying organization that opposes religious conservatives on issues such as sex education, legal abortion, and Bible study in public schools.” The report goes on to say, “The Texas Freedom Network’s projects include Texas Rising, which provides training to left-of-center leaders and activists on college campuses throughout the state encouraging voter registration and left-of-center social policy advocacy, and Just Texas, which advocates for state policies that support abortion and LGBT interests while opposing policies it claims amount to religious establishment.”
Chiarello had reached out to Nick Hudson, Policy and Advocacy Strategist with the ACLU of Texas, asking him if he “knew of any progressive voices in Clarendon, near Amarillo” and for “talking points and advice.” According to his bio, “In 2015, Nick served as the state director at Texas for Marriage, where he worked to expand public support for freedom to marry in the United States” for same-sex couples.
Hudson introduced Blair Wallace, who serves as the Reproductive Freedom Policy and Advocacy Strategist for the ACLU of Texas, to Chiarello who then introduced Wallace to McIntosh. According to her bio, Wallace “runs the Texas Abortion Access Network (TAAN), which she founded alongside twelve other Texas abortion organizations.” Several organizations that are currently a part of TAAN are actively engaged in the abortion trafficking of Texas residents across state lines. This includes the abortion trafficking of minors across state lines without parental consent.
By the time of the May council meeting, McIntosh was well prepared to combat the Sanctuary City for the Unborn Ordinance before the City of Clarendon.
Due to the amount of interest among citizens in seeing their city council address this issue, the City of Clarendon placed “Discussion and possible action on Ordinance Outlawing Abortion, Declaring Clarendon a Sanctuary City for the Unborn, Making Various Provisions and Findings, Providing for Severability, and Establishing an Effective Date” as Agenda Item #5 and scheduled their May meeting at the Mulkey Theater to accommodate the large crowd they were expecting.
In the City Council members’ packet, City Administrator Brian Barboza gave background as to how the item ended up on the City Council agenda. Barboza wrote:
After City Council took no action last month, there was concern of only hearing one side and not another, the week of in preparing the agenda, there was numerous phone calls to City Hall, over 40 ‘Request for item to be placed on City Council Agenda’ forms filled out and the City Administrator had requests via email of close to 10 individuals wanting the agenda item back on and to allow both sides to be heard.
City Administrator Brian Barboza then wrote, “Since Clarendon is a Type A General Law City, cities of this type are not allowed to pass ordinances that exceed State Law. The State of Texas already has specific laws governing abortion.” It was noted that this information was provided by another City Manager.
The information in the council packet for Agenda Item #5 included: (1) Three pages of talking points against the ordinance from multiple individuals, including at least one set from Stephanie Chiarello from Representative Guerra’s Office and at least one set from Blair Wallace of the ACLU of Texas, (2) An email from Michael R. Smith, City Manager for the City of Jacksboro, Texas, (3) A Brief Statement Opposing the Proposed Ordinance Declaring Clarendon a Sanctuary City for the Unborn written by Rev. Ken McIntosh – the pro-choice pastor and husband of Alderwoman Eulaine McIntosh, (4) a document from the Sanctuary Cities for the Unborn Initiative listing 69 cities and 8 counties that have passed ordinances outlawing abortion within their city limits, (5) an article from Live Action entitled, City of Muenster in Texas Becomes 69th ‘Sanctuary City for the Unborn’ in US, and (6) an article from Texas Scorecard entitled, The Problem of Abortion Trafficking in Amarillo and Beyond.
Some documents that had been given to the City of Clarendon were not included in the May packet, including: (1) The proposed Ordinance Outlawing Abortion, Declaring Clarendon a Sanctuary City for the Unborn, Making Various Provisions and Findings, Providing for Severability, and Establishing an Effective Date, (2) The Proposed Clarendon, Texas Sanctuary City for the Unborn Ordinance: The Key Points document, (3) the letter from Attorney Jonathan F. Mitchell, the former Solicitor General of Texas, offering to represent the City of Clarendon at no cost to the city or taxpayers in any litigation that results from a decision to enact the ordinance, (4) a letter from twenty Republican Senators and Representatives from across Texas in support of the passage of such ordinance, and (5) a letter expressing the views of the Attorney General’s Office on State Law questions pertaining to Lubbock’s Sanctuary City for the Unborn Ordinance.
The “Type A General Law City” Argument
In the letter to Alderwoman Eulanie McIntosh on May 1, Jacksboro City Manager Michael R. Smith thanked her for the conversation they had earlier that day. Smith wrote, “Also, as we discussed, because Clarendon is a Type A General Law City, you are not allowed to pass ordinances that exceed State Law. In other words, if the State of Texas does not say that Clarendon CAN do something, then that means Clarendon CANNOT do it. This is relevant because the State of Texas has very specific laws governing abortions, therefore a Type A General Law city cannot exceed those laws.”
The statement made by Smith, and echoed by City Administrator Brian Barboza and Alderwoman Eulaine McIntosh, was just not true. Speaking of Type A General Law cities, Local Government Code 51.012 states, “The municipality may adopt an ordinance, act, law, or regulation, not inconsistent with state law, that is necessary for the government, interest, welfare, or good order of the municipality as a body politic.” The very first city that had ever passed a Sanctuary City for the Unborn ordinance was a Type A General Law city.
Type A General Law cities that have passed ordinances outlawing abortion include Waskom (pop. 2,189 – June 2019), Naples (pop. 1,378 – September 2019), Joaquin (pop. 850 – September 2019), Wells (pop. 769 – February 2020), Whiteface (pop. 449 – March 2020), East Mountain (pop. 797 – July 2020), Morton (pop. 2,006 – October 2020), Grapeland (pop. 1,489 – January 2021), Goldsmith (pop. 257 – February 2021), Murchison (pop. 606 – March 2021), Abernathy (pop. 2,839 – May 2021), Sundown (pop. 1,397 – June 2021), Sterling City (pop. 888 – June 2021), Centerville (pop. 892 – July 2021), Crawford (pop. 733 – August 2021), Brownsboro (pop. 1,036 – August 2021), Shallowater (pop. 2,613 – March 2022), Marquez (pop. 313 – April 2022), Little River-Academy (pop. 2,048 – January 2023), and Muenster (pop. 1,556 – April 2024).
None of the ordinances passed in these Type A General Law cities were “inconsistent with state law” but all were “necessary for the government, interest, welfare, or good order of the municipality as a body politic.”
The Ninth Finding of the proposed Clarendon Ordinance addressed this further, stating,
During the 87th Legislative Session, the State of Texas explicitly allowed municipalities and counties to outlaw and prohibit abortion, and to establish penalties and remedies against those who perform or enable unlawful abortions. See Tex. Gov’t Code § 311.036(b) (‘A statute may not be construed to restrict a political subdivision from regulating or prohibiting abortion in a manner that is at least as stringent as the laws of this state unless the statute explicitly states that political subdivisions are prohibited from regulating or prohibiting abortion in the manner described by the statute.’)
The section the law cites was referenced in a letter from the Texas Attorney General’s Office to Judge Wesley Hendrix regarding questions of Texas law raised by the second and third claims made by Planned Parenthood in Planned Parenthood of Greater Texas Surgical Health Services, et. al. v. City of Lubbock, Texas. In this letter, and representing the views of the Attorney General’s Office, Solicitor General Judd Stone argued that “the Texas Legislature has clarified that state law does not prevent cities like Lubbock from imposing regulations like those that Planned Parenthood challenges.” Stone continued, “The thrust of Planned Parenthood’s allegations is that Lubbock’s ordinance is preempted because it is more ‘stringent’ than state law… Planned Parenthood has not identified a statute that ‘explicitly states that political subdivisions are prohibited from regulating or prohibiting abortion’ – let alone one that prohibits the type of regulations at issue here.” Stone concludes his point, stating, “This section of SB 8 does not alter state abortion regulations; instead, it guarantees local authority in a particular regard – the regulation of abortion – unless another state law ‘explicitly states’ that a political subdivision is prohibited from regulating or prohibiting abortion in a specific way.”
While Lubbock is a Home Rule municipality, the text in question addresses all political subdivisions and not just Home Rule municipalities. This means that cities and counties in Texas are guaranteed local authority on abortion, having been given express permission by the Texas Legislature to be more stringent than state law.
On June 1, 2021, before the Texas Heartbeat Act went into effect, Planned Parenthood lost its lawsuit against the City of Lubbock. The city’s ordinance outlawing abortion became the first law in the nation to completely outlaw abortion in a city with an abortion facility performing abortions. The abortion industry complied with the law and a countless number of lives were saved. The ACLU of Texas, which had represented Planned Parenthood in the lawsuit, had lost.
Both Clarendon’s City Attorney, Bryan Guymon with Underwood Law Firm, and City Administrator Brian Barboza knew about this opinion from the Attorney General’s Office. Despite this, Guymon and Barboza left this information out of the public discussion at Thursday night’s council meeting.
The “Talking Point” Objections
In the City Council packet were three pages of talking points written by people in opposition to the passage of the Sanctuary City for the Unborn Ordinance. At least one of the first two pages of talking points was written by Stephanie Chiarello.
The first page of talking points read, “Goal: Focus on the process, the needs of your community, and mindful input from your community members.” This was followed by “Pro Tip: Try to steer clear of their talking points and their framing, don’t call it a sanctuary city; don’t call them the ‘unborn’, call it a travel prohibition through the city; call them pregnancies, or fetuses, but not ‘unborn’.” Beneath these points were several “gotcha” questions to ask the speaker presenting the ordinance. Every single question appeared to be focused on avoiding the heart of the issue and detracting from the overall goal of the ordinance – which is to protect unborn children and their mothers from individuals and organizations providing abortions or seeking to aid and abet abortions.
The second page of talking points gave a series of excuses the aldermen could repeat, such as, “We already have a state wide abortion ban – our city council does not need to spend our limited resources debating over at best what is a duplicative effort of an already passed policy” or “I’d rather be talking about how we’re going to increase city revenue so we can recruit and retain doctors, nurses, teachers and profitable businesses to our struggling community more than passing an unconstitutional ordinance that will be litigated for years at great cost to our community.” Every single statement, again, appeared to be focused on avoiding the heart of the issue and deflecting from the overall goal of the ordinance. If passage seemed likely there were tips for intentionally delaying the process or attempting to sabotage the ordinance from being passed.
The third page of talking points was from Blair Wallace, Reproductive Freedom Policy and Advocacy Strategist for the ACLU of Texas. Wallace raised concern that “Any perception of targeting, harassment, or legal action against visitors could deter them from passing through or stopping in our town.” Wallace continued, “This could significantly harm our community, especially local businesses.” Other points raised by Wallace centered upon fear that those who violated the ordinance could find themselves in legal trouble, that the ordinance would overshadow the town’s reputation of being a “welcoming and livable place” causing individuals and businesses in support of abortion access to not want to move into and establish a presence in the community, and that passing such a measure would send the message that more needs to be done in Texas to restrict abortion. Every single statement, once again, focused on avoiding the heart of the issue and deflecting from the overall goal of the ordinance of protecting unborn children and their mothers from individuals and organizations providing abortions or seeking to aid and abet abortions.
At the Clarendon City Council meeting, Amarillo resident and Amarillo Sanctuary City for the Unborn Initiating Committee Member John Barrett called out the ACLU of Texas for having made such statements. Barrett shared, “I understand the ACLU gave some advice to the council here. In their email, they used words like ‘could’ happen, ‘may’ happen, ‘might’ happen. All of those words of advice are through the prism of a crystal ball. Not once did their representatives say, ‘This will happen.’” Barrett continued, “I personally contacted small, medium and large cities across Texas that passed this ordinance and not one of them indicated ANY negative impact on business in their communities.”
In Response to the Opposition: Rev. Ken McIntosh, Pro-Choice Pastor
In the pastoral letter received in the council packet, Alderwoman Eulaine McIntosh’s husband, Rev. Ken McIntosh wrongly claimed that “Most of what the ordinance contains is already Texas law on abortion” and that what is in the ordinance is a mere duplication of state law.
Truth be told, the proposed Clarendon Sanctuary City for the Unborn Ordinance would have closed up six loopholes in state law: (1) It would have prohibited elective abortions and the aiding or abetting of elective abortions within city limits – extending the private enforcement mechanism found in the Texas Heartbeat Act from the point of detectable heartbeat to the point of conception. (2) It would have prohibited elective abortions or the aiding or abetting of elective abortions on residents who live within the city limits – regardless of the location of the abortion and regardless of the laws of the jurisdiction where the abortion takes place. (3) It would have prohibited the manufacturing, possession, or distribution of abortion-inducing drugs within the city limits. (4) It would have prohibited abortion trafficking and the aiding or abetting of abortion trafficking within the city limits – making it illegal for abortion traffickers to use any roads or runways within the city limits. (5) It would have prohibited the transport of the remains of unborn children who have been killed by an elective abortion from any abortion provider into the city limits, or to dispose of such remains within the city limits. And, last but not least: (6) It would have prohibited organizations seeking to profit off of the murder of innocent children from operating or doing business within the city limits. All six of these provisions would have done something that current law does not.
In his pastoral letter, Rev. Ken McIntosh also claimed that the “major difference between what the Sanctuary City for Unborn’s ordinance and Texas Law is #1 under the findings: The City Council finds that human life begins at conception” and that the Texas Law goes against the Sanctuary City for the Unborn “belief that human life begins at conception.” These statements made by Rev. McIntosh are just not true. The Texas Heartbeat Act passed in 2021, reads, “The legislature finds that the State of Texas never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v. Wade, 410 U.S. 113 (1973), that prohibit and criminalize abortion unless the mother ’s life is in danger.” When Roe v. Wade (1973) was overturned on June 24, 2022, Attorney General Ken Paxton released an advisory on Texas Law referencing HB 1280 and the pre-Roe v. Wade abortion statutes. While HB 1280 would go into effect in the future, the pre-Roe v. Wade abortion statutes could be enforced immediately.
Another point of error in Rev. McIntosh’s letter was when he addressed birth control, emergency contraceptives, and IUDs, Rev. McIntosh claimed that if the City Council of Clarendon were to pass the ordinance they would have been “going against the decision of the court and the Constitution because Section 5 of the Ordinance calls for the prohibition of abortion-inducing drugs.” Had Rev. McIntosh read the ordinance carefully, perhaps he would have not made such an error. The definition for “abortion-inducing drugs” in the proposed Clarendon Ordinance is defined to include “mifepristone, misoprostol, and any drug or medication that is used to terminate the life of an unborn child” and is clear to state that the term does not include “Plan B, morning-after pills, intrauterine devices, or any other type of contraception or emergency contraception.”
City Council out of step with Clarendon citizens
City Council and Mayor
The ordinance had the support of several churches throughout the City of Clarendon and many conservative organizations throughout the state, including Right to Life of East Texas, West Texas for Life, Amarillo Area Young Republicans, and Alliance for a Safe Texas. The City of Clarendon also received letters supporting the ordinance from the Mayor of Lubbock, the Mayor of Odessa, twenty Republican Senators and Representatives from throughout Texas, seven Republican Senators and Representatives from throughout New Mexico, and former Texas Solicitor General Jonathan F. Mitchell – who offered to represent the city at no cost to the city and taxpayers for any litigation that may arise from the passage of such ordinance.
Clarendon resident Jackie Acker shares her abortion story before the Clarendon City Council.
Pastor Bunk Skelton shares his abortion story before the Clarendon City Council.
Instead of siding with these conservative organizations and leaders throughout the state of Texas, the Clarendon City Council sided with the ACLU of Texas and Amarillo Reproductive Freedom Alliance – which had mobilized against the abortion trafficking ordinance.
In the end, the unanimous vote against the ordinance did not appear to represent the majority of voters for Donley County. In the 2020 Presidential Election, an overwhelming 87.26 percent (1,438) of Donley County residents voted Republican – compared to 12.01 percent (198) of Donley County residents who voted Democrat. During the Republican Party of Texas Primary in March 2022, Republican voters across the State of Texas voted on Proposition 5, which stated, “Texas should enact a state constitutional amendment to defend the sanctity of innocent human life, created in the image of God, from fertilization until natural death.” In Donley County, 90.20 percent (534) of Republican Party Primary voters marked their ballots “FOR” this propositional statement and 9.79 percent (58) voted “AGAINST” this propositional statement.
The vote by the leadership of the City of Clarendon also went against several Republican Party of Texas 2022 Party Platform planks, including Plank 36, Plank 167, Plank 217, and Plank 218. Speaking of the private enforcement mechanism made popular by the Sanctuary City for the Unborn ordinances and the Texas Heartbeat Act, Plank 217(j) reads, “Until the abolition of abortion is achieved, we support laws that restrict and regulate abortion, including… Extend[ing] the private cause of action used in the Texas Heartbeat Act to all pro-life laws and policies in Texas.”
The vote also went against a previous Republican Party of Texas Platform plank from 2020, which read, “We support the right of Texas municipalities to protect mothers and preborn children in their communities by passing enforceable city ordinances that ban abortions and abortion industry businesses within their city limits.” Over 92 percent of Republican Party of Texas delegates voted in favor of this plank being added to their party platform.
Despite the conservative nature of the City of Clarendon, many of the residents have realized that their city is not what it once was. Pastor Jason Houston of First Assembly of God in Clarendon shared, “We are called to be a city on a hill, a light to this world, not a mouthpiece for the ACLU.” Regardless of where one falls on the Sanctuary City for the Unborn Ordinance in the city of Clarendon, one thing is certain – the discussion is far from over.
This is a commentary published with the author’s permission. If you wish to submit a commentary to Texas Scorecard, please submit your article to submission@texasscorecard.com.
