One year after Lebanon City Council banned abortion within city limits, abortion-rights protestors gathered outside Lebanon City Hall.
“My body, my choice!,” they chanted on the warm May evening. “Abortion bans have got to go!”
Lebanon resident Mark Bledsoe made his way into the crowd shouting “How many must die? How many do you want to kill?”
Lebanon police separated Bledsoe from other protesters even as other arguments broke out among the assembled residents.
Residents of Lebanon and dozens of other cities across the country find themselves thrust into the middle of a heated debate. That debate looks set to become even more local and even more contentious after the U.S. Supreme Court on Friday overturned Roe v. Wade – the court’s landmark 1973 decision that guaranteed abortion access in the United States.
With the conservative judges on the court finding that there is no constitutional basis for a right to an abortion, the decision on whether to legislate abortion falls to state and local governments. That means abortion ordinances and protests, like those in Lebanon, could be coming to a city near you. The battle over abortion rights is bleeding from national to local news at a time when a majority of Americans believe that abortion should be legal in most cases.
In Ohio, abortion is currently legal up until 20 weeks of pregnancy, but more laws – (currently blocked by courts) could take effect soon after the Supreme Court’s decision removed a major legal hurdle. Judges have blocked laws making abortion after six weeks illegal, requiring fetal remains to be buried or cremated and banning dilation and evacuation, a common second trimester abortion method.
In the meantime, a few city governments in Ohio have charged ahead, taking matters into their own hands.
Lebanon and Mason became the first cities in Ohio to pass abortion bans in 2021. Mason City Council repealed its ban in December after two new councilmembers took office – a sign of how abortion battles are becoming the new battlefront between conservative and progressive politicians looking to get local voters fired up.
Both cities are in Warren, a county of 242,337 residents north of Cincinnati. Neither has an abortion clinic.
The Ohio cities are among at least 47 cities across Texas, Nebraska, Louisiana and Iowa that have passed similar legislation restricting or outright banning access to abortion, according to the organization Sanctuary Cities for the Unborn – an organization that has supercharged the enactment of such legislation by providing legal support and easy-to-copy templates for bills that local politicians can push in their cities and towns.
The history of abortion in Ohio
Municipal restrictions on abortion in Ohio sdate back to 1978, when the city of Akron passed an ordinance with 17 provisions restricting abortion. These included requiring parental consent before an unmarried minor could get an abortion and a 24 hour waiting period.
The ordinance was challenged in the Supreme Court case Akron v. Akron Center for Reproductive Health. In a 6-3 decision, the court invalidated the ordinance’s provisions and found that they were not implemented out of medical necessity but rather were intended to dissuade people from having an abortion.
There are currently six clinics that offer surgical abortions in Ohio and three more that offer only medication abortions.
The number of abortions in Ohio has decreased by half since the Ohio Department of Health first started reporting abortion statistics in 1976. There were approximately 44,000 abortions in Ohio in 1977 and less than 20,000 in 2020.
Are city abortion bans legal?
Jessie Hill, a law professor at Case Western University who works with the American Civil Liberties Union of Ohio, said in January the ordinances in Lebanon and Mason are not constitutional, but whether they could be challenged in court is a separate question.
The ACLU of Ohio and Democracy Forward filed a lawsuit against Lebanon’s abortion ban on May 11. The lawsuit claims the ordinance is too vague and sweeping. Rather than base their argument on Roe v. Wade, the ACLU and Democracy Forward claimed the ordinance violates other constitutional rights to due process and free speech.
Lebanon has agreed not to enforce parts of the ban against the plaintiffs in the lawsuit. No one has been fined under the ordinance since it was passed, said City Manager Scott Brunka.
Proponents of sanctuary city for the unborn ordinances often cite home rule as the basis for these laws. Home rule is the authority local governments have to legislate as long as their laws do not conflict with state or federal law.
The Ohio Constitution grants municipalities the authority to adopt and enforce legislation within their limits such as “local police, sanitary and similar regulations” as long as it does not conflict with state law.
Hill said even if the abortion ban ordinance are legal under home rule, they could still be violations of the U.S. Constitution.
“Even if it doesn’t conflict with state law, a city can’t pass a law saying that you can’t criticize the governor because that would violate the First Amendment. It’s the same idea here,” she said.
Why go city by city to pass these laws?
Passing abortion bans city by city is a time-consuming and costly process that opens local governments up to potential lawsuits. There’s also abortion legislation being considered nationally and at the state level. So why use this approach?
For one thing, it’s successful.
The strategy is a natural evolution from state government legislating abortion, said Andrew Lewis, a political science professor at the University of Cincinnati who researches evangelical political engagement.
Lewis said the grassroots feel of these city laws ties in with conservative values like limited government.
Mark Lee Dickson, the founder of Sanctuary Cities for the Unborn, said he decided on a city by city approach because he feels local government is “the strongest unit of government outside the family unit and the church.”
Sanctuary Cities for the Unborn lays out a step-by-step process on its website for cities looking to pass abortion bans. The organization also provides ordinance language and a letter from an attorney to city officials.
The organization’s ordinance language allows private citizens to sue abortion providers and uses the same legal strategy at the center of Texas’s six-week abortion ban, The Washington Post reported.
It’s easy to imagine why local officials would be motivated to take stances on controversial social issues like abortion.
Turnout for local elections is dismal and it’s difficult to motivate people to take time and run to the polls on their lunch break by campaigning on roundabouts.
Voter turnout in Warren County was 30.46% in the November 2017 election, which included city council and school board races. Turnout was 25.1% in the corresponding November 2021 election, which was the first election held since Lebanon and Mason passed the abortion bans.
Is this the future for city councils?
Tackling national culture wars through city legislation did not begin with Sanctuary Cities for the Unborn.
Berkeley, California passed the first sanctuary city resolution in 1971 to protect soldiers resisting the Vietnam War. Similarly, there are sanctuary cities for immigrants and “Second Amendment sanctuaries” for gun rights.
There have also been other unprecedented municipal bans in Ohio. Cincinnati banned conversion therapy for gay youth in 2015.
Lewis, the political science professor, said he thinks more social issues will be debated at the local level, both because of the increasing nationalization of local politics and a growing divide between urban and rural areas.
“You will get localized communities trying to differentiate themselves on social issues in these kinds of places,” he said.
This can motivate local candidates to campaign on national issues.
This August, Adam Mathews, a Lebanon City councilmember who pushed for the city’s abortion ban, and Kathy Grossmann, Mason’s former mayor and current councilmember who voted in favor of Mason’s ban twice, will face each other in the Republican primary for a seat in the Ohio House of Representatives.
“I think candidates will see that as a way to make a name for themselves,” Lewis said. “So it probably will draw more attention and that might include more turnout, and more heated discussion at these sorts of meetings.”
At one Mason City Council meeting on Oct. 11, 2021, 62 people spoke during a public comment session that lasted nearly three hours.
Four were residents concerned about city business: trash on a nearby property, prayer during council meetings. The other 58 speakers were there to talk about abortion.
“It’s probably not good for the day-to-day needs of local politics to take that attention away from something that needs to be done at the community level and move it toward these broader nationalized discussions,” Lewis said.
Lewis said it’s possible in some states, the state government leadership won’t push back against cities enforcing things differently, which would lead to “different pockets of rights and enforcement mechanisms.”
“The courts may allow some of that to stand, but it’s hard to think that we have too much of a checkerboard locality when it comes to fundamental rights,” he said.