San Antonio's Prop A Is a Fight Between State Power and Home Rule

The May election in San Antonio would have been quiet—there are no major challenges to Mayor Ron Nirenberg at the top of the ticket—if it weren't for Proposition A, the Justice Charter. Just getting the measure on the ballot has been contested by antiabortion groups, attorney general Ken Paxton, and, somewhat surprisingly, three members of San Antonio's city council who walked off the dais rather than vote to hold a charter election at all.

The Justice Charter is a police reform omnibus of sorts; it bans choke holds and no-knock warrants, ends criminal enforcement for small amounts of marijuana, and addresses nonviolent misdemeanors such as theft under $750 and graffiti damage under $2,500 through "cite & release," a practice that gives the offender a citation and requires them to appear before a judge at a later date rather than being arrested on the spot. It would also create the position of justice director for San Antonio City Hall. What sets it apart from most police-reform bills is the inclusion of reproductive justice: the proposition prohibits the use of local funds to enforce the statewide abortion ban. It wasn't necessarily opposition to abortion that led the council members to walk off the dais, they told reporters back in February, but the legal gauntlet the amendment throws down.

"The Justice Charter isn't just absurd. It's also illegal," councilman Manny Palaez said in a statement to KSAT 12 city hall reporter Garrett Brnger shortly after walking out. "We all know that municipalities can't override Texas law." While the technicalities of where local and state jurisdiction overlap can be complex, history is on Palaez's side there: Texas state leaders regularly quash the more progressive ordinances of its largest cities and counties.

But the Justice Charter is headed for a vote after 21,000 valid resident signatures, seven council "yea" votes (and three abstentions), and one Texas Supreme Court ruling denying an antiabortion group's petition to keep the charter off the May ballot. And municipalities around Texas will get to see if Palaez was wrong—or if state leaders do take aim at another local measure.

"I hear that it's inconsistent, portions of it, with state law," said William Johnson, an eighty-year-old San Antonian who signed up to speak before city council on the day Palaez and others left the dais. He followed a string of other locals who opposed the amendment, saying that state laws wouldn't allow the kind of local control Prop A is promoting. "To that I say simply, ‘So what?’ Someone needs to lead."

The end of federal protection for abortion rights opened up a new dimension of that debate in Texas, where a 2021 trigger law banned virtually all abortion with the fall of Roe v. Wade last summer. The debate finds reproductive care in the same contested space as immigration enforcement, county tax caps, and plastic bag bans: the preemption zone. As the Texas Legislature has grown more right-wing over the past several decades, it has increasingly used state law to override local policies and ordinances, usually in urban areas, that run afoul of its preferences. Judging by the ignominious lineup of bills filed for the 2023 Legislature, the Texas GOP's preference would be to not only end abortion access in the state but to have bragging rights as the most draconian state for abortion seekers and providers.

After the trigger law went into effect in August, cities quickly moved to make their position on abortion clear. City councils in Austin, Dallas, Denton, and El Paso have adopted measures to deprioritize abortion ban enforcement for police. San Antonio passed a similar resolution—like most of the other cities’, it was based on Austin's GRACE Act (Guarding the Right to Abortion Care for Everyone)—but may take abortion protection a step further, enshrining it in the city's charter by way of the May ballot measure. This more ambitious move has already proved an enticing target for state officials looking to flex their big government muscles. It's a bold step forward, but one that local activists say San Antonians want to take.

"Folks wanted to vote on abortions more than they wanted to vote on choke holds and no-knock warrants," said Ananda Tomas, founder of ACT 4 SA, a grassroots police-reform coalition. People did not want to see police investigating women and doctors over the issue. Tomas was citing the results of an October 2022 survey of more than thirty thousand San Antonians. After marijuana, abortion was the second most popular issue. That's why she's not worried that antiabortion groups—which are well organized and already targeting the proposition—will sink the vote. Rather, she's hoping that the multifaceted charter will draw a wide net of support. While 2021 saw a record turnout of 17 percent, the usual voter turnout for Bexar County's municipal election is under 12 percent. Given the low numbers, one successful get-out-the-vote campaign could have a big impact.

But antiabortion groups are not alone in their opposition to the charter. The San Antonio Police Officers’ Association has built an informal coalition, courting antiabortion voters as well as local organizations such as the Asian American Alliance of San Antonio, founded by conservative former city councilwoman Elisa Chan. "Activists proposed several reforms under Proposition A that will only hinder the effective policing and community safety we have in San Antonio today," said Danny Diaz, San Antonio Police Officers’ Association president, in a written statement. The statement claims that five of the six items included in Prop A will be unenforceable—that only the appointment of a "justice director" would be permissible under state law. Diaz further argues that the cite-and-release policy would be detrimental, especially to restaurants and small businesses. In short, the union's argument is that most of Prop A is unenforceable and redundant with existing police practice, and the parts that aren't, such as expanded cite and release, would be dangerous. "If this proposition passes, the City of San Antonio will begin to crumble," Diaz wrote.

Tomas said the police union's message—that petty crime will increase as a result of expanding cite and release—has been more effective in swaying opinion than antiabortion messaging has. In March, ACT 4 SA conducted another poll, this time to see how the provisions included in the proposition were faring with voters. Respondents ranked the abortion provision as the most important part of the proposition; cite and release, however, saw lower support. Tomas said ACT 4 SA has put a lot of effort into reassuring people that felonies will still be prosecuted, and that a citation does still require a misdemeanor offender to appear before a judge, who has the discretion to assign jail time.

Nirenberg, San Antonio's center-left mayor, has also expressed concerns about the cite-and-release portion of the charter. He's said he’ll vote against Prop A, but has reiterated support for the city's August 2022 resolution modeled on the GRACE Act.

If the Justice Charter does pass, it carries more weight than a city council resolution or the discretionary priorities already in place, including on abortion. Democratic district attorney Joe Gonzales, along with other Texas DAs, has said he will not pursue criminal prosecution of abortion cases, but a more conservative city council or DA can easily change the practice and policy to reflect their position. In early April, the Texas Senate passed SB 20, one of dozens of bills filed this session that attempt to punish DAs for refusing to prosecute "any criminal offense." The bill is now with the House of Representatives.

Having voters behind the measure is also important for movement-building, said Mike Siegel, the political director for progressive policy group Ground Game Texas, which helped craft the Justice Charter. "The overall goal is to push the city as far as possible toward criminal justice reforms that are broadly supported," Siegel said. Passing ballot initiatives at the local level is one way for Texas voters to prove that there is popular support for abortion rights. In theory, it shows that people will vote on the issue, giving progressive candidates a reason to take it up in state races.

It's a part of a movement to restore abortion rights in Texas, but no one campaigning for Prop A believes that the battle ends with a "yes" vote in San Antonio. Abortion-access advocates have often pointed out that legality is only as helpful as the access that women have to clinics, medication, and doctors who will support them. (In fact, that was the primary strategy of antiabortion legislation under Roe—to make legal abortion access more burdensome, rendering legality irrelevant.) Decriminalizing abortion seekers at the local level does not reopen clinics or end the penalties for doctors if they perform the procedure. Nor does it protect anyone involved from being sued by their next-door neighbor, their ex-partner, or the local antiabortion activist. San Antonio city attorney Andy Segovia has, like the police union, voiced doubts as to whether the Justice Charter, should it pass, would be enforceable, given how much is already preempted by state law. But the proposition is not entirely symbolic, Siegel said, since prohibiting local surveillance and investigation could make it safer to obtain abortion pills by mail.

Even though it wouldn't allow clinics in San Antonio to start performing abortions tomorrow, Planned Parenthood Texas Votes co–executive director Dru Tigner said her organization welcomes all efforts to remind lawmakers that a majority of Texans do not favor a total abortion ban—54 percent opposed the 2021 trigger law, according to a June University of Texas poll—and don't want to see anyone prosecuted for negative pregnancy outcomes. "The will of the people is not being reflected in our laws," she said. "The state might say it's for local control, but they don't mean it."

Local control, or home rule, is the legal basis for the Justice Charter, Siegel said. When the state criminalized abortion, it was up to localities to fund the enforcement, and their resources are limited. Choices have to be made about what to prosecute and investigate. San Antonians (or Austinites, Round Rockers, Fredericksburgers, or Brownsvillians) who agree through a vote that they don't want their tax dollars spent on abortion investigations should be able to make that decision. "I will acknowledge that we are trying something novel," Siegel said, "For movement-building purposes, we are exploiting the tension between state lawmakers and local populations."

There's plenty of tension to exploit. Of the fifteen issues surveyed by Law Atlas's Policy Surveillance Program, Texas preempts local law on eleven, including guns, transgender rights, paid leave, and the teaching of race and racism in school curriculum. While cities do get away with some progressive reforms without state interference—such as marijuana decriminalization in Austin, Denton, Elgin, and Killeen—there's a political theme to the issues the states take up as well. Laws such as 2017's SB 4 targeted so-called "sanctuary cities" for immigrants without legal status, dictating how cities could enforce immigration laws. But the state did not pick fights with the small towns that passed laws prohibiting abortion while it was still protected under Roe, declaring themselves "sanctuary cities for the unborn."

Siegel and Tomas also acknowledged that the inclusion of abortion ban enforcement in the charter had made it a target for state politics, and wrote it with a severability clause to allow some elements to stand if others are struck down. It survived one legal challenge—an antiabortion group claimed that Proposition A violated a law prohibiting multiple subjects to be covered by charter amendments. The Texas Supreme Court ruled that the charter could stay on the May ballot, but Attorney General Ken Paxton, who filed an amicus brief in support of the pro-life group, has the charter on his radar, and the Legislature will still be in session with several bills still in play that would preempt local abortion supports.

This brings up another concern abortion advocates have about the Justice Charter, which explicitly states that it is subject to state law. In a way, the charter lays out a roadmap for lawmakers to write bills requiring police departments to investigate abortion cases, similar to the 2017 anti–sanctuary cities law that required police to detain undocumented immigrants on behalf of Immigrations and Customs Enforcement when encountered during regular stops. Paxton sued San Antonio police chief William McManus for failing to comply with that law after SAPD released immigrants who were found in a tractor trailer shortly after the law went into effect. In a fight between local and state law, preemption keeps working, because the state simply has more power.

The back and forth between state and local authority is not where vulnerable people want to be caught, said Laura Molinar, codirector of Sueños Sin Fronteras, a reproductive-health collective that serves undocumented people. "There's a lot of fear," Molinar said, as she sorted through the practical implications of the Justice Charter. "The language is very bold and it's drawing attention to the things that we’re already providing. So I feel like the charter might threaten the autonomy of the families we work with if there's more hypervigilance from the state."

Hypervigilance is definitely the order of the day in Austin, as the current Legislature has launched a flotilla of bills aimed at nailing shut the door to any abortion access, including but not limited to invoking the death penalty for patients who obtain an abortion. Many of the bills would close financial support loopholes for pregnant people traveling out of state, eliminate Plan B medication, and tie up any other loose ends of reproductive autonomy left by SB 8, which banned abortion after about six weeks, and HB 1280, the trigger law that outlawed abortion in the state. Very few of the bills included in Texas Monthly's abortion bill tracker seem likely to pass. What seems to be important to lawmakers is earning their conservative bona fides simply by filing them and being more antiabortion than the next guy (or Donna Campbell). They are, ahem, symbolic. But for the Texans who need access to abortion or may one day need it, throwing symbolic bombs into a room with this particular mix of lawmakers is understandably nerve-racking.

With such extremism already in action, there is an inherent risk of poking the Paxton bear or providing a blueprint for preemption. But for Tomas, that risk doesn't outweigh the need for localities to do whatever they can to push back. "We can no longer afford to not be bold."

Update 4/18/23: This article has been updated to clarify the nature of the Texas Supreme Court's ruling.