The New Mexico Supreme Court heard oral arguments Wednesday in a case that considers whether local governments have the authority to limit access to abortion.
Abortions have increased significantly in New Mexico as surrounding states restrict access and more pregnant women travel from out of state to abort their babies. In New Mexico, there is no waiting period, no parental involvement required, and no limit to how close the child is to birth.
In response to the abortion boom, Lea and Roosevelt counties and the cities of Clovis and Hobbs created similar ordinances that would restrict the procedure.
The ordinances created a licensing requirement for abortion facilities and make it unlawful to use mail or a delivery service of any items that would produce an abortion.
These ordinances are a nod to the Comstock Act of 1873, an often ignored federal rule that bans the mailing of anything “obscene, lewd, lascivious” or considered morally impure, including abortion pills, abortion-related materials, and birth control products.
Democrat New Mexico Attorney General Raúl Torrez responded to the local ordinances by skipping over all lower courts and going directly to the left-leaning New Mexico Supreme Court, asking it to prevent the local rules from going into effect.
“This is not Texas. Our State Constitution does not allow cities, counties or private citizens to restrict women’s reproductive rights,” Mr. Torrez said in a January statement announcing the court challenge.
Mr. Torrez’s filing noted that the Hobbs and Roosevelt ordinances broadly define an abortion clinic as any building or facility other than a hospital where an abortion of any type is performed, or where abortion-inducing drugs are dispensed, distributed, or ingested. That definition seems to include private homes. And in Roosevelt County, the ordinance allowed any person to bring a civil action against any other person who violated the ordinance. The penalty in such a case would be not less than $100,000 for each violation, Mr. Torrez argued in his filing.
Arguments From State Law
The justices Wednesday challenged the local ordinances, saying if a business cannot receive materials in the mail needed to address the termination of pregnancy, that is interference with the process.Interference is a key word because it is reflected in the newly minted House Bill 7, which says “A public body or agent of a public body shall not, directly or indirectly, deny, restrict or interfere with a person’s ability to access or provide reproductive health care or gender-affirming health care within the medical standard of care.”
House Bill 7 was passed in March, three months after the attorney general brought this case against the local governments, but it is now part of the argument for preventing them from enforcing the ordinances.
An attorney for Hobbs said the city has the right as a municipality to govern businesses and that is all it is trying to do; the city is not trying to ban abortion. She also countered House Bill 7 by arguing that it can only interfere with health care within the medical standard of care, and abortion is not considered health care to some people.
That argument was not well received by the justices, who said the medical standard of care is developed through the medical profession and not through elected officials.
House Bill 7 also says a public body shall not impose or continue any law that violates or conflicts with the provision of the Reproductive and Gender-Affirming Health Care Freedom Act.
The justices also challenged the use of the Comstock Act, saying that it may only apply to “unlawful” acts and abortion is “lawful” in New Mexico. They asked if the argument is that local governments get to decide whether the federal Comstock Act applies and if that would mean going to trial over each local case.
The justices will take the arguments under advisement and provide a decision in the coming months.
