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The abortion war goes local as ACLU lawsuit seeks to thwart town’s ban

A 2015 abortion rights protest in Nashville. (Mark Humphrey/AP)

The ACLU of Tennessee filed a lawsuit against a Nashville suburb Wednesday to stop a zoning ordinance that effectively bans surgical abortions within the city’s borders, an antiabortion tactic that is putting town councils on the front lines of one of the most polarizing issues in American life.

The suit, joined by the national ACLU and filed on behalf of the nonprofit national women’s clinic Carafem, calls the Mount Juliet City Commission’s zoning ordinance “unconstitutional.” The ordinance is part of “the state’s relentless attack on abortion rights, enacting a multitude of restrictions designed to shutter clinics that have provided safe and affordable abortion care and impose unconscionable obstacles,” the lawsuit states.

Two days after the Carafem women’s clinic opened, the city commission called a meeting in March with just one item on the agenda: to restrict surgical abortion clinics to industrial zones. Carafem, which provides a range of women’s health-care services, had opened its clinic in a commercial-zone complex with other medical offices.

The meeting lasted four minutes, and the ordinance passed unanimously. It also bans surgical abortions from being performed within 1,000 feet of churches, school grounds, public libraries or child-care facilities, said Andrew Beck, senior staff attorney for the ACLU Reproductive Freedom Project.

“This means there’s actually no plot of land in the entire city where they could perform an abortion in the office,” Beck said. “This is about Mount Juliet’s politicians feeling emboldened and trying to obstruct their citizens’ access to abortion.”

Several cities have used zoning restrictions to create prohibitive hurdles for abortion clinics in recent years, said Andrea Miller, president of the National Institute for Reproductive Health, a group that advocates for access to abortion and contraception.

Antiabortion law spreads in East Texas as ‘sanctuary city for the unborn’ movement expands

In Virginia, Fairfax and Manassas have designated abortion clinics as “special use” facilities that require a detailed approval process and special fees. In San Antonio, ambulatory surgical centers — including abortion clinics — must receive approval from the city council and zoning board to open in certain commercial districts.

Following Mount Juliet’s zoning change, the neighboring town of Lebanon, Tenn., now requires abortion clinics to be located within 1,000 feet of hospital emergency services. The town called the move “proactive” because it has no clinics performing abortions.

In Mount Juliet, the women’s health center still provides medical abortions, which involve the ingestion of two pills and can be done at home.

Antiabortion protesters have been demonstrating at the site regularly. City officials said the ordinance has not been controversial among residents.

“We are trying to keep our citizens safe, not only those who exist but those yet to be born,” said Ed Hagerty, mayor of Mount Juliet, adding that the zoning rule changes were passed because the community was “not interested in allowing that type of procedure” to occur in the city.

Mount Juliet City Commissioner James Maness said he had not yet read the ACLU lawsuit but said “this zoning change has good support.”

“I’m pro-life,” he said, “so if this is a question of taking innocent life, then it’s definitely worth fighting for.”

There has been a wave of high-profile efforts in conservative states to restrict abortion, including “heartbeat” laws that ban the procedure after about six weeks of gestation — laws that have been consistently blocked by courts.

Conservative lawmakers have said those state laws were efforts to challenge Roe v. Wade, the watershed 1973 Supreme Court decision that protects the right to have an abortion. But because the issue has not yet reached the Supreme Court, there’s growing momentum within the antiabortion movement to expand local restrictions to abortion care, said James Bopp, who has served as general counsel for National Right to Life since 1978.

“Heartbeat bills aren’t legal; they are just feel-good bans,” said Bopp, who writes model antiabortion legislation. “We should be focusing on restrictions.”

Since June, seven town councils in West Texas have passed abortion bans, even though they don’t have clinics — an effort to create “sanctuary cities for the unborn” by implementing municipal abortion restrictions across the state.

Using zoning bans to restrict abortion is “disturbing and an attempt to misuse local government to do harm for reproductive health care,” Miller said. “We applaud the ACLU for stepping in and saying this is an inappropriate overreach.”

Some cities have been on the opposite side of the abortion war, funding transportation to abortion clinics and implementing laws to protect access to the procedure, including Austin, New York City, St. Louis and San Francisco.

Even in conservative states, some cities — including Charleston, W.Va.; Charlotte and Jackson, Miss. — have enacted “clinic safety ordinances” that create a zone around abortion facilities where activists cannot interact with patients and providers, Miller said, citing her organization’s report on the issue.

“We are heartened by cities rising up as a counterweight,” Miller continued. “We know that real progress often starts at the local level, and now is the time for cities to protect their residents against harmful actions by lawmakers in both state and federal government who are hostile to reproductive freedom.”