Abortion and the City: Austin’s Years-Long Series of Funding Abortion Maxes Out in Recent Budget Episode of $400,000 For Abortion Travel

Mary Elizabeth Castle, J.D.

Texas Values

Director of Government Relations   |  15 September 2024

Like an anticipated annual holiday, Austin City Council once again voted to provide funding in their annual budget for “abortion”. Every year since 2019, the council has been careful not to directly fund abortion for fear of violating SB 22, the “No Taxpayer Funds to Abortion Providers Law”. Whether it is gift baskets or Uber rides, ultimately the funds to end a baby’s life are pork barreled by an already expensive budget. (In fact, in a recent news story a reporter shared that the Austin City Council budget costs $1 billion more than the budget for the City of Dallas which is a much larger city).[1] This year, the Austin City Council passed a budget amendment similar to the one that has been legally challenged in San Antonio: funding women to travel out of state to seek abortions. Providing funding for abortions is not a new effort for the Austin city government, but could this be the last time Austin funds abortion? While there has been political and legal advocacy to stop the Austin City Council from funding abortion, our recently passed Texas laws could help bolster a legal challenge.

As the Austin City Council considered its annual budget this summer, Councilwoman Vanessa Fuentes offered an amendment to fund $500,000 for “reproductive logistical support”.  The approved amount in the final budget was $400,00.[2] The amendment, which was co-sponsored by 3 male councilmembers, states, “with one of the nation’s most severe abortion bans in Texas, Austinites seeking abortion care must travel hundreds or thousands of miles to other states where abortion is legal… In more recent years, the City’s Reproductive Health Grant funding was significantly constrained, limiting funds to education and outreach for contraception and reproductive healthcare only.”[3] Councilmember Fuentes was not on the city council in 2019 so she may not remember the reason why the funds were, in her words, “constrained”. In 2019, the Texas Legislature passed SB 22, a law that prevents taxpayer dollars from being used fund abortion providers. The law was inspired by the Austin City Council’s sweetheart deal of $1 a year rent with the Planned Parenthood center located on the “Eastside” of Austin.[4] The rent contract was set for 20 years so the sweetheart deal did not immediately end.[5] Nevertheless, the Austin City Council found a way to circumvent direct funding for abortion and decided in 2019 to give $150,000 to abortion-related services like transportation and hotel rooms.[6] This amount increased to $250,000 the following year.[7] As you can see, this recent proposal by the Austin City Council is almost 5 times the original budget for funding abortion-related services. The Texas Legislature’s attempts to address the clever bypass of the state law to fund “abortion-related services” have been unsuccessful. However, the Texas legislature was successful in outlawing abortion with the Texas Heartbeat Law in 2021. After the Dobbs decision, the Austin City Council remained obstinate in opposing Texas pro-life laws with the GRACE Act in 2022. It remains clear that Austin City Council has a long history of advocating and financially supporting abortion in the city.

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How can the Austin City Council continue on this path of funding abortion and who can stop them? It may seem like the Austin City Council continues to break Texas pro-life laws without delay. However, pro-life citizens have attempted to hold the Austin City Council legally accountable for their actions. Former Austin City Councilmember Don Zimmerman sued the city in 2019 for the city’s first attempt at violating SB 22. In his suit, Zimmerman pleaded a complex argument that funding abortion-related services violated the Texas Penal Code Sec. 1192, a 1963 law that criminalizes anyone who furnishes the means for providing an abortion.[8] Zimmerman’s 2019 lawsuit was before the passage of the Texas Heartbeat Law, which has specific provisions on “aiding” and “abetting” an attempt of an abortion. Additionally, Zimmerman’s argument in 2019 relied on the premise that the pro-life statutes were never repealed in Texas. Though accurate, this argument at that time failed to stop abortions in the state since Roe v. Wade in 1973.

Now with the passage of key pro-life laws like the Texas Heartbeat Law and the Human Life Protection Act, pro-life Texans have a stronger legal fight. Zimmerman’s lawsuit, and any future possible legal action against the city of Austin, should focus on the “aiding and abetting” clause of the Texas Heartbeat Law. Attempts at defining the funding within SB 22 are moot. However, the language for aiding and abetting an abortion under the Texas Heartbeat law is very clear:

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“… may bring a civil action against any person who… knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise if abortion is performed or induced in violation of this subchapter ... or intends to engage in the conduct described’’[9]

A tested definition of “aiding” and “abetting” in the civil law context can be found in the case Halberstom v. Welch, 705 F 2d. 472, 477. Halberstom v. Welch created a 3-part test for defining “aiding” and “abetting” under the civil liability context.

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(1) the party whom the defendant aids must perform a wrongful act that causes an injury;

(2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance

(3) the defendant must knowingly and substantially assist the principal violation.

If the Halberstom test is argued or applied in this new lawsuit against the Austin City Council, the Austin City Council could easily fit within this definition. First, it is assumed that the women receiving the money from the Austin City Council will violate Texas law by obtaining an abortion. Or if they are a nonprofit receiving the money under the budget amendment, they are aiding a woman to travel to obtain an abortion. Secondly, the Austin City Council is very much aware of the Texas Heartbeat Law and its “aiding” and “abetting” provisions. Lastly, the Austin City Council knows they are funding women to obtain abortions and are paying for the abortion and other related costs.  Texas attorneys may decide to use different arguments, but the Halberstom case clarifies what constitutes as “aiding” and “abetting”. Needless to say, this will be the second attempt to use the courts to stop the Austin City Council and there is still a pending matter against the San Antonio City Council for a similar budget measure.

It remains to be seen how pro-life Austin residents can prevail against a city fixated on supporting and funding abortion. Councilmember Mackenzie Kelly was the lone member who voted against the entire budget. In a media interview, she acknowledged that the many in the city should not be taxed for the few who will seek an abortion especially when it violates the religious views of people in the city.[10] Ultimately, Austin needs more than a punishment for breaking the law, the city council must one day acknowledge that they have overstepped and over-funded their own self-serving politics.

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[1] Michael McCardel, Austin City Council’s Lone ‘No’ Vote on the Budget Calls it ‘Fiscal Irresponsibility, WFAA video, August 18, 2024 at 4:32,  https://www.wfaa.com/article/news/politics/inside-politics/texas-politics/austin-city-councils-lone-no-vote-budget-fiscal-irresponsibility/287-0608c019-49f2-4dff-b1e3-05197cb05a96 .

[2] FY 2024-25 Council Amendment Tracking, Austin City Council, accessed September 9, 2024, https://services.austintexas.gov/edims/document.cfm?id=434259 .

[3] Vanessa Fuentes, FY 2025Budget Amendment Form: Reproductive Health Logistical Support, Austin City Council, accessed September 9, 2024, https://assets.austintexas.gov/austincouncilforum/6C-202408218163505.pdf .

[4] Unknown, Emotions Run High at City Hall as Council Approves $1 Year Planned Parenthood Lease, Fox 7, November 1, 2018, https://www.fox7austin.com/news/emotions-run-high-at-city-hall-as-council-approves-1-a-year-planned-parenthood-lease, accessed September 8, 20 24.

[5]  Chuck Lindell, Planned Parenthood Clinic to Stay Open, Austin American Statesman,  June 13, 2019, https://www.statesman.com/story/news/politics/state/2019/06/13/despite-new-law-austin-planned-parenthood-clinic-to-stay-open/4916035007/ , accessed September 8, 2024.

[6] Stacy Fernandez, Texas Told Cities They Couldn’t Fund Abortion Providers. So Austin is Funding Abortion Access, Texas Tribune, September 11, 2019, https://www.texastribune.org/2019/09/11/austin-texas-passes-abortion-access-funding-going-around-senate-bill-2/, accessed September 9, 2024.

[7] Mary Tuma, City Council Redirects APD Funds to Abortion Support Access, Austin Chronicle, August 14, 2022, https://www.austinchronicle.com/daily/news/2020-08-14/city-council-redirects-apd-funds-to-abortion-support-access/, accessed September 9, 2024.

[8] Original Petition, Zimmerman v. City of Austin, No. D-1-GN-19-005930, (Dist. Ct. 98th  Tex. 2019),  https://texasrighttolife.com/wp-content/uploads/2019/09/Zimmerman-v.-City-of-Austin-Original-Petition-FILE-STAMPED.pdf.

[9] Texas Health and Safety Code, Sec. 178.208.

[10] Michael McCardel, Austin City Council’s Lone ‘No’ vote on the Budget Calls it ‘Fiscal Irresponsibility, WFAA video, August 18, 2024 at 3:50-4:24,  https://www.wfaa.com/article/news/politics/inside-politics/texas-politics/austin-city-councils-lone-no-vote-budget-fiscal-irresponsibility/287-0608c019-49f2-4dff-b1e3-05197cb05a96 .   

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