On February 26, 2021, Governor Michelle Lujan Grisham signed a bill repealing the 1969 abortion ban. The 1969 law criminalized abortion to end a woman’s pregnancy except in certain circumstances, such as rape and incest. The 1969 state statute had not been enforced in the state due to the United States Supreme Court’s decision in Roe v Wade in the 1970s, which legalized abortion nationwide. The repeal of the 1969 law was necessitated by the fact the repeated attempts had been made over the years to have the United States Supreme Court reversed the decision of Roe v Wade.
On June 22, 2021 the United States Supreme Court released its decision in the case of Dobbs v. Jackson Women’s Health Organization wherein the Supreme Court overruled and reversed the cases of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey and 50 years of constitutional law precedence ruling that a woman does not have constitutionally protected right to an abortion. The US Supreme Court ruled the authority to regulate abortion was returned to the individual states and their elected representatives.
As a direct result of the Supreme Court’s Dobb’s decision, abortion and woman’s reproductive rights became a defining issue in New Mexico’s 2022 Gubernatorial race between incumbent Democrat Governor Michelle Lujan Grisham and Republican Mark Ronchetti. Republican Mark Ronchetti made abortion and imposing limits on a woman’s right to choose a center piece of his campaign and suggested a “reasonable policy” that proposed banning abortion after 15 weeks of gestation, with exceptions for rape, incest, and to preserve the life of the mother. Ronchetti went so far to call for a constitutional amendment where voters would decide whether abortion should be illegal.
NEW MEXICO COUNTIES AND TOWNS TRY TO INTEFERE WITH WOMEN’S REPDUCTIVE RIGHTS
On November 4, 2022 it was reported that the City Commission of Clovis, New Mexico put off a vote on an ordinance designed to ban abortions within the New Mexico town fearing challenges to the move in a state where the procedure remains legal. Clovis was set to become the first town to pass a so-called “sanctuary city for the unborn”
https://www.reuters.com/world/us/new-mexico-town-delays-banning-abortion-2022-11-04/
On November 8, it was reported that the Hobbs City Commission unanimously passed an ordinance designed to ban abortions, despite the procedure being legal in the state. The so-called “sanctuary city for the unborn” ordinance blocks abortion clinics from operating. At least one nearby county has approved an anti-abortion resolution. The ordinance will surely be challenged in court and set aside.
ATTORNEY GENERAL RAUL TORREZ FILES CHALLENGE TO MUNXIPAL AND COUNTY ORDINANCES
On January 22, New Mexico Attorney General Raúl Torrez filed an emergency petition with the New Mexico Supreme Court that challenges the anti-abortion ordinances passed by communities in eastern New Mexico. Torrez is asking the New Mexico Supreme Court strike down the ordinances, arguing they violate civil rights guaranteed by the state Constitution.
The legal challenge was filed as a direct result of the cities of Hobbs and Clovis, and the counties of Lea and Roosevelt passed local ordinances targeting abortion. According to the lawsuit filed the city and county ordinance infringe on the state’s authority to regulate health care.
Democrat Attorney General Torrez contends in the lawsuit that the city and county ordinances misinterpret a 19th-century federal law on the mail and conflict with state law regulating the practice of medicine. He also argues the ordinances violate the state Constitution’s guarantees to equal rights, liberty and privacy which he said are more robust than what’s outlined in the U.S. Constitution.
Attorney General Raúl Torrez said this during a news conference announcing the filing of the lawsuite:
“In the last several months, Roosevelt County, Lee County, the cities of Hobbs and Clovis have passed ordinances seeking to regulate the provision of health care services, specifically the ability of women in those communities to seek and access reproductive health care. … Local communities are not empowered to regulate medical services. … We need to make it absolutely clear to other communities across the state, which may feel that they have the ability to regulate this kind of health care that they don’t have that right. … They are not empowered to regulate access to health care. …
This, ladies and gentlemen, is not Texas. In [New Mexico] a woman’s right to choose is guaranteed by the New Mexico Constitution. We have the ability to provide enhanced rights. … It is simply inappropriate, unlawful and unconstitutional for local governments to use their limited authority to try to create a patchwork of regulations that would deny women access to essential health care services in their community.”
The city and county ordinances vary somewhat but generally aim to ban use of the mail or other interstate carriers to deliver abortion drugs, citing a federal law. The Roosevelt County ordinance provides that it would be enforced by allowing individuals to file civil lawsuits seeking damages of at least $100,000. The private individual lawsuit provision is identical to the State of Texas law that allows private individuals to file lawsuits against doctor’s who perform abortions which are now illegal in Texas.
Democratic state lawmakers have introduced legislation in the 2023 New Mexico Legislative Session that would explicitly prohibit local abortion bans or other discrimination against an individual’s right to health care related to gender. However, the 60-day session just began on January 17, an no action on the legislation has taken place as of yet. Torrez said his petition does not hinge on the outcome of state legislation. The state Supreme Court, he said, is already empowered to interpret the Constitution and evaluate the abortion ordinances.
REACTIONS TO ATTORNEY GENERAL LAWSUITE
Republican Roosevelt County Commissioner Rodney Savage said he believes the county ordinance is on sound legal footing. Savage told the Albuquerque Journal this:
“It’s being litigated, we have a difference of opinion, and the courts will have to decide. ”
Roosevelt County attorney Michael I. Garcia said the county will respond in court to the attorney general’s petition. Garcia said this:
“In the meantime, I prefer not to speculate about litigation while it’s in the process.”
Hobbs Mayor Sam Cobb said the ordinance in his city was thoroughly analyzed in public meetings and supported by city residents. Mayor Cobb said this:
“The Ordinance does not ban abortions or abortion clinics in Hobbs. … I would invite anyone that has heard otherwise to read the Ordinance in detail.”
Links to quoted news sources are here:
https://www.abqjournal.com/2567053/ag-torrez-challenges-legality-of-local-abortion-bans.html
CODIFYING ABORTION RIGHTS
As a consequence of New Mexico towns attempting enact legislation to restrict and prohibit a woman’s access to abortion, Democrat lawmakers are looking at enacting abortion rights and access to reproductive health care legislation in the 2023 legislative session. The legislation includes codifying abortion rights into state law, investing in telehealth and clinics that provide reproductive health care, and protecting providers or patients who travel to New Mexico to escape restrictions in other states.
On January 17, it has been reported that a “Reproductive Health Care Protection Act” will be introduced and sponsored by Democrats Representative Linda Serrato, D-Santa Fe, and Senator Linda Lopez, D-Albuquerque. Serrato and Lopez both said the legislation is based on an Executive Order Governor Michelle Lujan Grisham issued in August declaring “abortion is an essential part of reproductive health care and must remain legal, safe and accessible” and expanding access to reproductive health care services in the state.
Under the proposed legislation, local governments across New Mexico would be prohibited from placing restrictions on abortion access. A companion initiative aims to protect doctors who perform abortion and patients from harassment and investigations by out-of-state interests. State Senator Linda Lopez said in a statement that she will sponsor a bill that will provide accountability for organizations that share personal medical information related to reproductive health care.
Senate Majority Leader Peter Wirth of Santa Fe said the initiatives are a direct response to the City of Clovis and the Hobbs County Commission actions. Senator Wirth said this:
“[The goal] is to “prohibit public bodies, including local municipalities, from denying, restricting or discriminating against an individual’s right to use or refuse reproductive health care, or health care related to gender. ”
The legislation will focus at least in part on improving telehealth infrastructure and perhaps building clinics to provide a spectrum of pregnancy and reproductive health care services. According to Representative Serrato, some patients in rural parts of New Mexico are forced to travel for hours to Santa Fe or Albuquerque for pregnancy-related care.
Representative Micaela Lara Cadena, D-Mesilla, said New Mexico families need access to a full spectrum of health care, ranging from pregnancy services to behavioral health programs. Cadena said this:
“Abortion is health care … and part of the way we get there is making sure we meet the full needs of our familias without shame or stigma.”
REPUBLICAN OPPOSITION
Republicans are already gearing up to oppose any efforts by Democrats to protect a woman’s right to choose and to expand woman’s health care rights in the state. Republican lawmakers and candidates are proclaiming Democrats are going too far. They argue that New Mexico voters will support some of the abortion restrictions imposed in other states, such as parental notification for minors.
Republican Elephant Butte State Senator Crystal Diamond said this:
“Although many New Mexicans do not oppose abortion altogether, it’s clear that most support reasonable limits and protections for women and children. The Democrats’ plan to expand abortion access for minors and women from out of state is completely out of touch. … Now that the U.S. Supreme Court has returned the issue of abortion to the states, New Mexico legislators must prioritize the voices of their constituents over the demands of special interest groups and the multi-million-dollar abortion industry.”
Links to quoted news sources are here:
https://www.abqjournal.com/2563994/reinforcing-rights.html
https://www.reuters.com/world/us/new-mexico-democrats-fight-towns-abortion-ban-2023-01-14/
JOURNAL POLL ON ABORTION
On Tuesday, August 29, the Albuquerque Journal published the results of poll taken on the issue of abortion rights for the November 2022 general elections. The link to read the full unedited Journal column is here:
https://www.abqjournal.com/2528326/nm-voters-divided-on-abortion-restrictions.html
The Journal poll is extremely revealing in that it breaks down the results not only as to party affiliation but also as to regions of the state.
The poll asked the question “WHICH COMES CLOSEST TO YOUR VIEW ON ABORTION” The results were as follows:
It should always be legal: 35%; It should be legal with some limitations: 22%; It should be illegal except for rape, incest, or to save the mother’s life: 25%; It should always be illegal: 12%; Don’t know: 2%; None of these/won’t say: 4%
POLITCAL PARTY BREAKDOWN
The poll results were broken down according to party affiliation. The responses to the poll question by party affiliation were as follows:
It should always be legal: Democrats, 55%, Republicans: 8%, Other: 35%
It should be legal with some limitations: Democrats, 24%, Republicans: 18%, Other: 26%
It should be illegal except for rape, incest, or to save the mother’s life:
Democrats, 11%, Republicans, 41%, Other: 28%It should always be illegal: Democrats, 5%, Republicans, 24%, Other: 8%
REGIONAL POLL RESULTS
The poll results were broken down according to geographical regions. The responses to the poll questions were as follows:
ALBUQUERQUE METRO REGION
It should always be legal: 33%; It should be legal with some limitations: 23%; It should be illegal except for rape, incest, or to save the mother’s life:26%; It should always be illegal: 11%
NORTHEAST/NORTH CENTRAL REGION
It should always be legal: 39%; It should be legal with some limitations: 22%; It should be illegal except for rape, incest, or to save the mother’s life: 18%; It should always be illegal: 14%
LAS CRUCES/SOUTHWEST REGION
It should always be legal: 44%; It should be legal with some limitations: 30%; It should be illegal except for rape, incest, or to save the mother’s life: 12%; It should always be illegal: 8%
EASTSIDE REGION
It should always be legal: 27%; It should be legal with some limitations: 15%, It should be illegal except for rape, incest, or to save the mother’s life: 42% ; It should always be illegal: 15%
GENERAL POLL ANALYSIS
New Mexico voters are 3 times more likely to say abortion should always be legal than they were to say it should always be illegal. According to the poll, 35% of statewide voters surveyed said abortion should always be legal, 22% said the procedure should be legal, for a combined total of 57%.
The poll found that 25% felt there should be some limitations and said it should be illegal except in cases of rape, incest or when a mother’s life is in danger. Just 12% of voters surveyed said abortion should always be illegal, while 4% would not say and 2% said they did not know.
According to the Journal poll results, Democrats are firmly behind a woman’s right to choose with 55% of Democrats saying abortion should always be legal and 24% of Democrats said it should be legal with some limitations for a whopping 79% combined percentage.
Republicans’ opinion are dramatically opposite with 8% saying abortion should always be legal, while 24% said it should be banned and 41% said it should be illegal with exceptions for cases of rape, incest and to save a mother’s life, with a 65% combined total to make it illegal or illegal with the exceptions of rape, incest or threat to the life of the woman.
The difference by party affiliation shrinks to a 6% difference when it comes to how voters they felt if abortions should be legal with some limitations. Interestingly, more Democrats, 24%, felt that there should be some limitations while fewer Republicans, 18%, felt there should be some limitations.
The Journal Poll did not find a big difference in attitudes on abortion between New Mexico voters based on their gender, ethnicity and age. There was little difference in voters’ views on abortion based on their education level with one exception, voters with graduate degrees were far more likely than other groups of voters to say abortion should always be legal.
REGIONAL ANALYSIS
With respect to the regional poll analysis, it’s somewhat of a surprise to note that it is the Las Cruces/Southwest area that had the highest approval of any region in the state that supported abortion without limits with a full 44%, while the Albuquerque Metro Region supported abortion without limits at 33%.
The Southern area of the state is widely considered a conservative part of the state, excluding the progressive Las Cruces, while the Albuquerque Metro area is considered more progressive. One explanation for the 11% difference between the regions is that more conservative Valencia and Sandoval were included and skewed the results.
Not at all surprising is that the Progressive Northeast/North Central Region of the state had the highest percent of support saying abortion should always be legal with 39%. Also not surprising is that in the very conservative Eastside region, 42% said that abortion should be illegal except for rape, incest, or to save the mother’s life, and 15% said it should always be illegal.
The link to read the full unedited Albuquerque Journal poll column is here:
https://www.abqjournal.com/2528326/nm-voters-divided-on-abortion-restrictions.htm
COMMENTARY AND ANALYSIS
THE ATTORNEY GENERAL ACTION
Attorney General Raúl Torrez did not specifically say it, but his 27 page law suite is essentially a “Declaratory Judgment” action filed in the New Mexico Supreme Court to set aside the municipal and county ordinances and have them declared unenforceable and unconstitutional. Normally, such actions are filed in State District Courts in the counties where such laws are enacted. The problem is the local city and county attorneys arguably would be the more appropriate authorities to file such actions, but are conflicted out and likely recommended enactment of the ordinances by their respective legislative bodies.
Now that the petition is filed the New Mexico Supreme Court, the court can accept or deny the petition. If accepted, those counties and cities that enacted the ordinances can defend them in the Supreme Court and the Attorney General’s office can respond and simply seek that the ordinances be set aside. The problem is that the Attorney General action is an extraordinary action. The New Mexico Supreme Court has sole discretion and it could simply refuse to accept it and dismiss it on its own. If it does accept to hear the case, it may not occur for months. Its more likely than not that the New Mexico Supreme Court will take a wait and see approach and let the 2023 New Mexico Legislature tackle the issue given all the pending legislation.
LEGISLATURE NEEDS TO ACT NOW
Governor Lujan Grisham and Democrats in general campaigned heavily on safeguarding abortion rights and woman’s reproductive rights. Republicans on the other hand ignored and are totally out of touch with just how strongly people feel about the issue.
New Mexico Republicans have every intent to do what they can to deprive a woman of their right to choose and to deprive a woman from making her own decision on reproductive rights. Simply put, no person, no candidate, no elected official, no voter and no government has any right telling a woman what she must do when it comes to abortion and what she must do when it comes to her own body.
Democrats in the 2023 legislative session hold a 45-25 majority in the House and a 27-15 edge in the Senate. Democrats would be damn fools not to deliver on their promises to protect a woman’s right to an abortion and access to reproductive health given the attempts by some Republican controlled municipalities and counties in the state to do whatever they can to make abortion illegal or inaccessible to woman.
The links to relied on news source material are here:
https://www.abqjournal.com/2563994/reinforcing-rights.html
https://www.reuters.com/world/us/new-mexico-democrats-fight-towns-abortion-ban-2023-01-14/