Would making Lubbock a ‘Sanctuary City’ pass constitutional muster?

This week, Arnold Loewy and Charles Moster debate the constitutionality of a proposed ordinance to make Lubbock a Sanctuary City which would outlaw abortion. Moster is a former litigation attorney in the Ronald Reagan and George H.W. Bush presidential administrations who has offices in Lubbock, Amarillo, Midland/Odessa, Abilene and Georgetown. Loewy is the George Killiam Professor of Law at Texas Tech School of Law.

LOEWY 1

In recent days, the Lubbock City Council has been considering a suggestion by Senator Charles Perry that Lubbock become a Sanctuary City for fetuses thereby criminalizing any attempt by Planned Parenthood or anybody else to perform an abortion within the city.

Although I understand that a substantial number of Lubbock citizens, including Senator Perry and Mr. Moster, are opposed to abortion and would like to see it outlawed in Lubbock, such action, whether we use the euphemism “Sanctuary City” or not, is forbidden by the Constitution.

It would be as if a city opposed to gun violence were to say, we are becoming a sanctuary city from violence, and henceforth no private citizen may own or carry a gun. Such a statute would obviously be unconstitutional under the Second Amendment as construed by the Supreme Court. Similarly a statute such as that suggested by Senator Perry would clearly violate the due process clause of the constitution as construed by the Supreme Court.

I am not concerned about the potential lost opportunities for abortion under this “Sanctuary City” ordinance because I am quite confident that any court in the land would declare this ordinance unconstitutional and hence null and void. I am concerned that such an ordinance would be publicized nationally and that Lubbock, my adopted home, would become the laughingstock of the country. I can only imagine what Bill Maher or Stephen Colbert would do with such an ordinance on their shows.

Whether Roe v Wade was rightly decided is certainly debatable. Indeed, despite being personally pro-choice, I argued in a pre-Roe v Wade case that a North Carolina law which limited abortions was constitutional. I did that because I believed that people like Charles Perry and Charles Moster ought to be able to persuade their legislature that the fetal right to life is more important than the maternal right to bodily autonomy.

Although I won in the lower federal court, once the Supreme Court decided Roe v Wade, my case was summarily reversed. So, I wound up losing and that’s the bottom line whatever you, me, Mr. Perry, or Mr. Moster may wish.

So my concern is that I would hate to be a resident of a city where its council enacted an obviously unconstitutional ordinance when I am trying to persuade others that my city is not some backwoods Texas town that goes its own old-fashioned ways with no regard for the law of the land, just because it doesn’t like it.

MOSTER-1

I have not been a huge fan of our City Council in these debates but agree entirely with their courageous step along with State Senator Perry to make Lubbock a Sanctuary City for the protection of human fetuses. The Professor is not thrilled with this idea and is certain that the Supreme Court would invalidate such a measure to protect the unborn. He seems unduly concerned with our reputation as a city and being a called out as “some backwoods Texas town.” He’s worried that we will be branded as laughingstocks by comedian and pseudo-intellect Bill Maher and his mediocre cohort Stephen Colbert.

There’s nothing funny about calling out abortion for what it really is – murder. Our local government should be commended and not derided. As to the Professor’s reliance on Roe v Wade as the civil bullet to shoot down the sanctuary proposal, I must refresh his recollection and most of our readers as to another Supreme Court decision which was also precedent and opposed by moral people across the nation – Dred Scott. Decided in 1857, this misguided decision held that negro slaves were not entitled to the rights of U.S. citizenship because they were legally the property of their owners. Assuming the Professor and I were publishing our latest column in 1857, presumably he would use the identical argument touting the precedential effect of Dred Scott as the law of the land in the same way he constantly rolls out his all time favorite, Roe v Wade.

Good people throughout the United States decried the immorality of the Dred Scott decision even before the ink was dry. The protests engendered by this monstrous decision sharpened the moral conflict which led to the Civil War, the Emancipation Proclamation, and the ratification of the 13th Amendment to the constitution which outlawed slavery once and for all. Certainly, the opponents of Dred Scott were not worried about being called out as backwoods or ignorant.

I put the murder of fetuses on the same immoral platform as the perpetuation of slavery. It is an abomination and a misguided Supreme Court decision does not remove the taint. The death of approximately 1 million fetuses in America annually cannot be morally justified under any legal theory. We can only hope that a moral outrage will take root as it did during the abolitionist movement and that Roe vs. Wade will go down in infamy along with Dred Scott.

I applaud Charles Perrry and City Council for doing the right thing. There’s nothing funny about that, Professor Loewy.

LOEWY 2

I did not intend for this to be a debate on the merits of the abortion question, but only on the question of the appropriateness of the Lubbock City Council adopting a measure that clearly contravenes the constitution. However, since Mr, Moster wants to debate the merits of Roe v Wade, I will do so.

With extreme irony, Mr. Moster cites Dred Scott as proof that the Supreme Court is sometimes wrong. That court, of course upheld the constitutional propriety of slavery. Happily, it was overturned by the 13th Amendment calling for the abolition of slavery and involuntary servitude.

The reason that I describe Mr. Moster’s embrace of the wrongfulness of Dred Scott as ironic, is that if he had his way, every pregnant woman in the United States who did not wish to remain that way would be subject to nine months of involuntary servitude to a fetus that she did not want.

Undoubtedly during the slavery era, some slaves tended to the health needs of their masters. Indeed, it is at least possible that in some cases, the masters may have died because nobody else could or would take care of them. But that possibility does not make slavery right.

Perhaps Mr. Moster as a man cannot or does not fully appreciate the burden of involuntary servitude that an unwanted pregnancy places upon a woman. The late Justice Ruth Bader Ginsburg emphasized this point when she said that a woman’s ability to control her body was essential to gender equality.

Many, perhaps hopefully most, pregnant women are happy or at least accepting of their state. These women are, of course, free and encouraged to serve their fetus and bring him/ her to birth. Each of these new lives are of course valued. But this country is not so underpopulated that we need to compel those women who do not wish to be an involuntary servant to a fetus for nine months to do so.

The 13th Amendment freed African Americans from involuntary servitude. Although gender equality seems to take longer than racial equality (compare the date of the 15th Amendment giving freed slaves the right to vote with the 19th Amendment giving women the right to vote), we now have it so let’s keep it. Let’s not have our city attempt to destroy it in the guise of being “a sanctuary city for fetuses.”

MOSTER- 2

In response to my argument that Dred Scott was morally reprehensible and an analogue to Roe v Wade, the Professor states, “With extreme irony, Mr. Moster cites Dred Scott as proof that the Supreme Court is sometimes wrong.” Respectfully, the Professor misses the mark entirely. My point is that an immoral decision will eventually be overturned in the wake of opposition notwithstanding approval of the Supreme Court. Slavery was and will always be an abomination. The abolitionists and most Americans north and south disagreed with Dred Scott and the decision was ultimately relegated to the trash heap of jurisprudence. The same fate awaits Roe vs. Wade as the murder of unborn children can never be countenanced.

Arnold Loewy and Charles Moster

The Professor is also incorrect that as a man, I cannot fathom the plight of women compelled to carry a fetus to full term. He further states that the criminalization of abortion would relegate women to the status of involuntary servitude. As a criminal law professor and renowned expert, the Professor must understand that personal inconvenience is not a defense to murder. A civilized society does not kill fetuses. It really is that simple and so was the opposition to Dred Scott. And so is the opposition to Roe v Wade.

Once again, I applaud the efforts of Sen. Perry and the Lubbock City Council for standing up for what is correct. They will be remembered for their courage and the direction of their moral compass.