Tracking Abuse of Preemption Legislation in the States: February 15, 2023
During the 2023 state legislative session Local Solutions Support Center (LSSC) is publishing a regular digest summarizing notable abusive preemption bills and their progress through session. An archive of 2023 updates is here. Additional information on what abusive preemption is and how LSSC is working to combat it can be found here. If you would like additional information on these bills or if you would like to discuss potential opportunities for tracking collaboration, please contact tracking@supportdemocracy.org.
State legislatures have been in session for just over a month now and already hundreds of preemption bills have been introduced for consideration. LSSC is tracking over 350 abusive preemption bills. Below is a breakdown by the numbers:
Abortion – 94
Education – 91
Elections – 51
Housing – 4
LGBTQ+ – 49
Prosecutorial Discretion – 7
TOTAL – 368
Many of the same themes from the 2022 legislative session have come back in equal or greater force this session, and the addition of Texas–which has its legislative session every two years–means this year will likely bring new problems in preemption.
Abortion
With the Dobbs ruling, the right to an abortion no longer enjoys federal constitutional protections and nearly half of the states have banned abortion or are likely to do so. State bans on abortion necessarily preempt local governments from providing the procedure through their public health systems, but supportive local governments have tried to find other ways to support reproductive rights. Now states are using preemption to take aim at those local policies, for example:
WV HB 2326: This bill would prohibit municipalities from expending funds originating from the state to support abortion or health plans that cover abortion. This means that state funds or grants could not be used for county-run hospitals or health clinics that provide abortion, nor to fund insurance plans for municipal employees that cover abortion.
VA HB 1488: This bill would prohibit any government agency, including municipalities, from providing a grant to a facility that offers abortion. This would prevent local governments from providing financial support to clinics, even to support their other reproductive and family planning services.
TN SB 600/HB 90: This bill would prohibit local governments for the purpose of assisting someone to obtain an abortion, including assisting that individual in traveling to another state where abortion is legal.
NJ S 3167: This bill would prohibit schools from providing information or carrying pamphlets for health clinics that provide abortion.
LGBTQ+ Rights
The LGBTQ+ community, particularly transgender individuals, has increasingly become a target of conservative state legislatures. Many states have introduced bills to regulate or prohibit provision of gender affirming procedures as well as target drag performances, for example:
UT HB 132: This bill would prohibit the provision of gender affirming care to minors. This would prevent municipal health facilities from offering this care.
OK HB 2186: This bill would prohibit drag queen story hour, children’s events where drag queens read books to children, and override any municipal license that had authorized businesses to host drag queen story hour.
ID S 1016: This bill would provide that public works contractors do not need to provide access to gender neutral restrooms. Municipalities could not require this access as part of a public works contract.
IN HB 1346: This bill would prohibit schools and their employees from promoting or encouraging the use of pronouns other than those assigned at birth.
VA HB 2432: This bill would require school employees to notify a parent if a student is identifying with a gender different from the one assigned to them at birth.
Prosecutorial Discretion
As many district attorneys have pledged to use their inherent discretion not to prosecute criminal prohibitions of abortion or bans on gender affirming care, states have responded with proposals to eliminate prosecutorial discretion. Texas currently has six bills pending on the subject:
TX SB 648: This bill would prohibit a district attorney from adopting or implementing a formal or informal policy or practice under which the district attorney “categorically or systematically refuses to bring charges against individuals who commit a crime of violence; a criminal offense against property; or a criminal offense under the Election Code,” categorically or systematically refuses to seek the death penalty, or refuses to prosecute a noncitizen because of possible immigration consequences. SB 648 would empower the Attorney General to initiate an investigation against a district attorney in violation, seek compliance with that investigation in court, and initiate removal proceedings. Individuals would also be able to file a complaint against a district attorney with the Attorney General or bring an action in state court for removal of a district attorney in violation.
TX SB 404/HB 1732: These identical companion bills would create the Prosecuting Attorneys Coordinating Council, a judicial branch committee of seven appointees (four from the executive and legislative branches and three from the judicial branch) empowered to investigate district attorneys for “incompetence” and “misconduct” and file a petition for removal. If a petition for removal has been filed, a district attorney will be disqualified from exercising their duties.
TX SB 378/HB 1350/HB 125: SB 378 & HB 1350 would prohibit a district attorney from adopting a written or unwritten policy that “prohibits or materially limits the enforcement of any criminal offense.” If such a policy is in place or is inferred from a pattern or practice, then the Attorney General may bring an action against the district attorney for civil penalties or removal. HB 125 applies the same prohibition to policies affecting enforcement of the state election code.
Curricular Preemption
Conservative policy think tanks, notably the American Legislative Exchange Council, have stirred a fervor over critical race theory and used that to take aim at the honest teaching of America’s history of racism in schools. Not only are these attacks continuing, but the strategy of curricular preemption has been expanded to targeted discussion of LGBTQ+ issues in schools as well as sex education, for example:
AZ HB 2458: This bill would prohibit schools from teaching certain “divisive” concepts about racism and systems of oppression. Parents may file complaints with the state board of education with the potential of civil penalties for school districts.
MO SB 4: This bill would prohibit schools from teaching critical race theory in Kindergarten through 12th grade. Parents may file complaints with the state board of education with potential penalties for school districts.
VA SB 1199: This bill would allow parents to access curricular materials and participate in the textbook approval process as well as object to materials and opt out of school field-trips.
Other Notable Bills
TX HJR 50: This bill would redesignate the City of Austin as the District of Austin, abolishing Austin’s city government and instead allowing the state legislature to appoint district leadership.
FL HB 170: This bill would allow businesses to sue local governments if a municipal ordinance was expressly preempted by state law or “arbitrary or unreasonable.” If requested, the challenged local ordinance would be enjoined pending the litigation and local governments could not recover attorney’s fees for a frivolous lawsuit.