Run for the Border: The blueprint for the anti-abortion movement’s next fight

“An abortion clinic in Waskom, Texas, is not an Austin problem or a Washington, D.C., problem,” Pastor Mark Lee Dickson told a crowd of churchgoers at College Heights Baptist Church in Plainview, Texas, in 2021. “It’s a town problem.”

This is the best distillation of Dickson’s strategy for persuading small cities, towns, and counties to declare themselves “sanctuary cities for the unborn” by prohibiting abortion in any form within the borders of the municipality. Dickson, a white man in his late 30s, is a relatively recent addition to the ranks of high-profile anti-abortion activists. A pastor, Dickson says he’s had “pro-life convictions” since before he became a Christian. As a boy, his parents took him to see his grandfather’s booth at the county fair—Right to Life East Texas, which Dickson now leads—where he says he was stunned by fetal models on display. “My faith is important to me,” he says. “But even if I was an atheist, or agnostic, I could still arrive at the same conclusions.”

Dickson glommed on to the idea of “sanctuary cities for the unborn” after hearing that country singer Charlie Daniels called for such in a tweet in 2017. (Daniels was, of course, expressing his disdain for the idea of sanctuary cities for immigrants.) Conservative towns that resent liberal power at the state and federal levels are Dickson’s bread-and-butter. Presenting so-called sanctuary city ordinances to affirm conservative values in an increasingly progressive world is a powerful pitch, especially with the added value of the David-and-Goliath metaphor that tends to play well with conservatives: small-town morality versus mainstream culture.

“So there’s about 20,000 cities in America, and 76 percent of those cities are less than 5,000, 42 percent of those cities are less than 500 people,” Dickson explains. “And so—their words, not mine—the U.S. Census Bureau said that America is a nation of small towns.”

From there, Dickson says, “what I notice is that the majority of those towns, they’re in red areas. And so I think the argument is clearly made that the majority of governments in America are conservative governments.”

Now, in a post-Roe America, Dickson and his legal partner, former Texas solicitor general Jonathan F. Mitchell, are seeking to use their sanctuary city ordinances to head off abortion clinics that may try to settle in smaller towns for their proximity to borders or transit. “Local politics matter,” Dickson says. “People need to be paying attention to what’s going on locally, because some people get focused on state and national government and they forsake what’s happened in their own community.”

The strategy has been effective. Perhaps the greatest recent victory for Dickson came when Hobbs, New Mexico, passed an ordinance crafted by Mitchell and Dickson to declare itself a “sanctuary city,” heading off the potential for a new Whole Woman’s Health clinic to settle there. “We have a really strong brand in Texas and they’re very focused on us, so they came over the border to Hobbs to pass the sanctuary cities ban,” says Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health.

Although, as Elizabeth Nash, the principal policy associate analyzing state issues at the Guttmacher Institute, points out, the designation remains unchallenged in court, so it’s unclear how much legal weight the ordinances carry, if any. “It is certainly an intimidation strategy,” Nash says. “It also intimidates the people who may need an abortion, from even perhaps seeking information about abortion, because all of a sudden, they see this ordinance, and it may deter them from even finding out what their options are.”

Intimidation was certainly a factor for Hagstrom Miller and her Whole Woman’s Health team. “There’s a lot of anti-abortion vitriol following us over the border,” Hagstrom Miller says. “The anti-abortion movement and the white supremacy movement are very linked, and the majority of my staff who work with us at Whole Woman’s Health are people of color, and we serve people of color. And so I’m thinking a lot about where our doctors and our staff and our patients are going to be safe.”

The New Mexico-Texas border, according to Hagstrom Miller, was identified early by her team in the aftermath of a 2021 Texas law that banned abortion at six weeks, a legal harbinger for the Dobbs Supreme Court ruling nearly a year later.

“New Mexico, Colorado, and Kansas are serving this part of the country,” Hagstrom Miller says, and the outpouring of patients from Texas is a massive factor. “Texas had like 55,000 abortions in 2020, and New Mexico had like, I don’t know, somewhere like 4,000 or 5,000. It’s a huge difference.”

From talking to their patients who were being forced to leave Texas for abortion care, the Whole Woman’s Health team knew that most people were driving, not flying, for economic reasons. Putting a clinic on the border seemed like a no-brainer, and it had a significant potential for easing some of the travel burden for abortion seekers, who were often traveling the extra 200 miles north to Albuquerque. Now, Albuquerque, not Hobbs, will be the home of a new Whole Woman’s Health Clinic.

It’s true that it wasn’t a coincidence that Dickson set his sights on the border towns—he says he saw a story in the Dallas Morning News that reported Whole Woman’s Health was fundraising for a new clinic there. Dickson says the locals in Hobbs and nearby Clovis were passionate about making sure the clinic would not settle in their towns. “We had already done a Zoom interest meeting before the overturning of Roe v. Wade,” he says. “We already had so many people in that area who had expressed interest…and so I made my way to Hobbs.”

Dickson gained notoriety in 2019 for traveling to 400 Texas cities and towns, urging these municipalities to become “sanctuary cities for the unborn,” coopting language that has been used to describe safe areas for undocumented immigrants. His effort resulted in nearly 50 new city ordinances that declared abortion illegal within their borders, all before Texas passed a law banning abortions after six weeks. The strategy was the brainchild of Dickson and Mitchell, who joined forces to prevent an abortion clinic from opening in Waskom, a town near the Louisiana-Texas border.

Of course, his argument isn’t merely pragmatic. Dickson is known to come to town meetings where he pitches his strategy armed with a “heartbeat bear,” a stuffed bear that plays recorded fetal “heartbeats” that Dickson says belong to babies he has saved through his anti-abortion work. (It should be noted that often, when people refer to fetal “heartbeats,” the fetus does not have a fully developed heart—the sound being heard is electrical activity moving through cells that will become a heart later in pregnancy, as the fetus continues to develop.)

The first sanctuary cities ordinances were difficult to challenge in court, given that Dickson and Mitchell had written into the measure a way to imbue citizens with the responsibility to enforce the town’s status, rather than the government, under “threat of financial ruin” via legal fees, as Emily Wax-Thibodeaux at the Washington Post explained. As time has passed, that sort of vigilantism is becoming more mainstream in anti-abortion legislation, as we’ve seen with the bounty hunter provision in the 2021 ban on abortion in Texas.

In New Mexico, Dickson has gained some traction in his work to convince towns to adopt his “sanctuary cities” mantle. At Dickson’s behest, two New Mexico towns near the Texas border weighed the proposal last year. Clovis, a farming town in eastern New Mexico, and Hobbs, “the gateway to New Mexico,” along with two other counties, passed ordinances to prevent abortion clinics from opening within their jurisdictions. Hobbs kicked off Dickson’s campaign, passing an ordinance on Nov. 7. Clovis followed suit on Jan. 5, and then Eunice on Jan. 23. Two counties, Lea and Roosevelt, have also signed on.

Sanctuary city ordinances run the legal gamut, invoking different protections to meet the needs of the locale in question. In New Mexico, for instance, where abortion is protected in the state constitution, Dickson and Mitchell have used an obscenity law from the 1800s nicknamed the Comstock Act as a way to anchor the ordinances in federal law—never mind that the federal law in question hasn’t been enforced in a century, as noted by a recent memo from the Department of Justice clarifying that the department does not believe the statute prohibits the mailing of abortion medication. Still, Dickson insists that, at the end of the day, Comstock is a trump card because it’s federal code.

We’re about to find out what it looks like for such an ordinance to be challenged in court. In January, New Mexico Attorney General Raúl Torrez requested that the state Supreme Court block the ordinances, which he says violate the state constitution. Last month, Mitchell filed a response. “Jonathan really lays out the picture here—the New Mexico Supreme Court has either got to acknowledge that the federal statutes clearly say what they say, or they have to say that the Biden administration’s opinion is right, and, in the words of [abortion law expert] Mary Ziegler, ‘It’s a trap,’” Dickson says. “I really don’t see how they can win this.”

Nash isn’t so sure. “If it’s a local ordinance, then there’s a clear role for the state constitution,” she says, which is also in line with Torrez’s interpretation of the issue. Even so, she says, “there’s just a lot we don’t know—what we’re seeing is this experimentation writ large” around abortion legislation. And, of course, if the issue were to advance all the way up to the Supreme Court of the United States, as Ziegler says is the goal, it would go before the same bench of judges that overturned Roe.

Ziegler agrees. “Really, for them, it’s all about getting Comstock before the Supreme Court.”