This November, Amarillo will vote on an ordinance that could turn the city into a “sanctuary for the unborn” —and tee up a legal case with the Trumpiest of Trump judges.
A sign welcoming patients from East Texas is displayed in the waiting area of the Women’s Reproductive Clinic, which provides legal medication abortion services, in Santa Teresa, New Mexico.(Robyn Beck / AFP via Getty Images)
If Donald Trump wins, and Republicans take over the Senate and maintain control of the House, MAGA will likely try to pass a national abortion ban. I know that Trump says he wouldn’t support such a thing, but, since I do not write for The New York Times, I’m not contractually obligated to forget that the man is a liar and a fraud. A Republican trifecta of power will lead to even more restrictions on abortion rights and access—and to even more women dying. That is just the reality of our situation.
But Republicans no longer need to win national elections in order to take away people’s rights. That’s because Republicans control the courts, and use them to give power to any two-bit legislature that has a grievance. If Trump doesn’t win, the forced-birth movement will still use every shred of state and local power to reach into pregnant people’s bodies and compel them to bring unwanted or life-threatening pregnancies to term, against their will. They will try to make abortion as difficult to access as possible, even if that means figuratively chaining people to their bedposts to prevent them from escaping to New York City or Los Angeles.
One of the ways Republicans will do this is with travel bans. It is facially unconstitutional for one state to restrict a resident from traveling to another state, but since when has that stopped Republican lawmakers or their enablers on the Trump Supreme Court from menacing women? Indeed, a number of towns have already adopted an abortion-related travel ban based on model legislation proposed by gestation-obsessed pastor and forced-birth activist Mark Lee Dickson.
Dickson has been pushing localities to adopt a “sanctuary city” ordinance—a sanctuary city for the “unborn,” that is, not actually alive people—that makes it a crime for people to pass through their town on their way to receive reproductive healthcare. Around 80 cities and counties have adopted a Dickson-type law to make it illegal to travel through them on the way to an abortion. Most are in forced-birth states, but Dickson has gotten a few up in states that still treat women like free people with bodily autonomy.
Most of Dickson’s victories have been in Texas, including the critical county of Mitchell. Mitchell County itself is insignificant, with a population of just over 9,000 residents. But it straddles Interstate 20, which is the highway you need to take if you are leaving, say, Dallas, to get to a state, like New Mexico, that still provides access to abortion.
It’s a terrifying little law, one that’s obviously reminiscent of Texas’s SB 8 bounty hunting law, which created a right for random Texans to sue those who helped people get an abortion. It even uses the same enforcement mechanism. Like SB8, the Dickson law allows private citizens to sue anybody who’s caught trying to pass through their town on the way to get an abortion.
There is, it’s worth mentioning, a hopeful caveat to all this, as Ian Millhisier at Vox points out: For all the chilling Big Brother implications of the law, it’s not clear that this particular enforcement mechanism actually works. He writes: “As a practical matter, it’s unclear if this framework will actually be effective in deterring people from traveling to New Mexico to seek abortions. If a man drives his pregnant girlfriend through Mitchell County on the way to an abortion clinic in New Mexico, how is anyone other than the two of them supposed to know where they are headed?” Mitchell County passed its Dickson law in July 2023, but, as far as I’m aware, nobody has yet been prosecuted under it.
Still, men like Dickson, whom nobody wants to have a baby with, never let their ineffectiveness deter them. Dickson and SB 8 author Jonathan Mitchell are back with a new version of the law, and they’ve gotten it on the ballot this November in Amarillo, Texas. The new version cites the Comstock Act (the 1873 law that made mailing “obscene” materials illegal) as the justification for the travel ban. The argument is that it’s already illegal, under Comstock, to transmit things that could help people get an abortion, so why shouldn’t it also be illegal to transmit people? If passed, it would make traveling through Amarillo to receive an abortion a violation of this stupid, antiquated law.
To be clear, their legal argument is bonkers. Comstock is a terrible law, but it has literally nothing to do with humans driving around the country. Dickson and Mitchell are playing Mad-Libs with the legal code, and their results make absolutely no sense.
But this is Amarillo we’re talking about. Geographically, the city is less important than some other cites targeted by the sanctuaries for the unborn movement. It’s nestled in the Texas panhandle, directly between Oklahoma City, Oklahoma, and Albuquerque, New Mexico. While it sits directly atop I-40, there are ways around it, which means that pretty much the only people traveling through Armarillo to get an abortion live in Amarillo, and there’s very little anybody can do to help them with that.
People who pay attention to the courts know that Amarillo is special, because that is where the emperor of Armarillo, US District Judge Matthew Kacsmaryk, holds court. Kacsmaryk is an anti-abortion zealot who does not practice “law” by any reasonable meaning of the term. He practices hate, and he has done everything in his considerable power to manipulate the law to serve his ends of preventing women and pregnant people from enjoying civil or constitutional rights.
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If this ordinance is passed, and then somebody gets caught trying to get out of Amarillo to have an abortion, you can bet all the money in your pocket that Kacsmaryk will uphold the prosecution. And that would set the table for a Supreme Court showdown over this and all the other travel bans Dickson has pushed forward.
At the Supreme Court, one might expect Dickson to lose. Again, the right to travel is not a controversial constitutional provision: Only Congress has the authority to restrict it (as it does with, say, human trafficking laws), not random dickheads like Dickson. Even in the Dobbs v. Jackson Women’s Health decision that took away abortion rights, alleged attempted rapist Brett Kavanaugh made noises about protecting the right to travel. I’d like to think that a facial challenge to the Dickson law would prevail.
But this is the Trump Supreme Court we’re talking about, the same court that upheld Texas’s SB 8 even though it arguably violated the right to travel. It’s entirely possible that the Republicans on the Supreme Court would allow the travel ban as an extension of the Comstock Act and, if they did, that would open the floodgates to not just more travel bans but also more aggressive legal uses of the Comstock Act. Every forced-birth state could make it a crime to drive through it on the way to an abortion.
Quite simply: The ordinance in Amarillo, Texas, could lead to women across the country being trapped in their red states, unable to flee to get healthcare. Of course, trapping women has always been the goal behind the forced-birth movement.
It would be great if voters in Amarillo could get their heads out of their asses long enough to reject this plainly unconstitutional ordinance. I don’t think we want to have the right of pregnant people to travel freely to rest on Brett Kavanaugh keeping his word.
Elie MystalTwitterElie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.