Abortion Access in New Mexico and US Supreme Courts this Week

This week the New Mexico Supreme Court heard oral arguments in a huge case that determine not only abortion law but the reach of state government over local government control. The issue at hand is an anti-abortion lawsuit to determine whether the local anti-abortion ordinances passed in Hobbs, Clovis, Lea, and Roosevelt counties are allowed under stat  law. The argument is state law supersedes the federal law and abortion should be overturned due to the relationship to the Comstock Act. 

The arguments in the State of New Mexico v. Board of County Commissioners for Lea County centered around the 19th-century federal law called the Comstock Act, which banned "every article or thing designed, adapted, or intended for producing abortion" from being mailed.

The Comstock Act was previously invalidated by Roe V. Wade, but since the overturning of Roe, the standing law has created a new debate. Does the federal Comstock Act supersede state laws regarding abortion materials?

Attorney General Raúl Torrez (D) asked the state Supreme Court to find a "right to abortion" within the New Mexico constitution, referencing the passing of the Reproductive and Gender-Affirming Health Care Freedom Act in March of 2023.

The pro-life Alliance Defending Freedom attorneys argued the opposite stating, "State and local governments have the strongest interest in protecting the most fundamental of our human rights—the right to life—and it's clear the New Mexico Constitution does not contain a right to take innocent, unborn life."

The Supreme Court has not said when they would give their ruling. The high court's five justices are all elected as Democrats or appointed by a Democratic governor.

The high court heard oral arguments for roughly an hour Wednesday without a ruling as lawyers and activists packed the small courtroom and state police vehicles lined the street outside in a rarely seen security deployment.

It's unclear how soon the justices may rule after temporarily blocking local anti-abortion ordinances. At least one abortion provider abandoned efforts to open a facility in eastern New Mexico near the Texas state line as a result of local restrictions, relocating to Albuquerque instead.

At least four state supreme courts are grappling with abortion litigation this week in the aftermath of the U.S. Supreme Court’s decision last year to rescind the constitutional right to abortion.

Opposition to abortion runs deep in New Mexico communities that border Texas. In Lea and Roosevelt counties and the cities of Hobbs and Clovis, officials argue that local governments have the right to back federal abortion restrictions under a 19th century U.S. law that prohibits the shipping of abortion medication and supplies.

They say the local abortion ordinances can't be struck down at least until federal courts rule on the meaning of provision within the “anti-vice” law known as the Comstock Act.

The law has been revived by anti-abortion groups and conservative states seeking to block the mailing of mifepristone, a medication used in the most common method of abortion in the United States. On Wednesday, the U.S. Supreme Court agreed to take up a dispute over the drug it its first abortion case since it overturned Roe v. Wade last year.

Beyond New Mexico, the act underpins an anti-abortion “sanctuary city” ordinance in Danville, Illinois, and several proposed ordinances for jurisdictions stretching from Montana to rural Grayson County in Virginia, said Mark Lee Dickson, a Texas-based advocate for local restrictions on abortion and related travel.

Attorney General Raúl Torrez argued Wednesday that the Comstock Act does not confer authority on local governments to enforce federal restrictions on abortion, just as they can't override New Mexico's legalization of recreational cannabis.

He said the local abortion ordinances violate constitutional guarantees under the New Mexico’s equal rights amendment that prohibits discrimination based on sex or being pregnant.

Torrez urged the court to clarify women's right to abortion.

“The court should at least consider whether there is an independent state constitutional basis for announcing a basic proposition that women in this state have a constitutional right, under the equal rights amendment, to access reproductive health care,” he said.

Earlier this year, New Mexico Gov. Michelle Lujan Grisham signed a bill that overrides local ordinances aimed at limiting abortion access and enacted a shield law that protects abortion providers from investigations by other states.

Erin Hawley, a Washington-D.C.-based attorney representing Roosevelt County, argued that the new state law doesn't prevent local governments from interfering with services such as abortion that fall outside standardized medical obligations to patients.

“We would disagree with it being health care,” said Hawley, senior attorney at the Alliance Defending Freedom and wife of U.S. Sen. Josh Hawley of Missouri. “These services are not within the medical standards of care.”

Justices peppered the attorney general and three attorneys for local governments with questions, voicing skepticism on a variety of arguments.

"Generally we don't reach constitutional issues unless absolutely necessary," Justice Briana Zamora told Torrez early in the argument.

Since the court case began, additional local ordinances have been adopted to restrict abortion near Albuquerque and along the state line with Texas.

New Mexico is among seven states that allow abortions up until birth, and it has become a major destination for people from other states with bans, especially Texas, who are seeking procedures.

Because of New Mexico’s permissive abortion laws, some nearby Texas counties have sought to prevent pregnant women from using its highways to leave the state for the procedure. The ordinances, including one recently adopted in Lubbock County, ban helping people travel within local boundaries to get an abortion. The measures are solely enforced by lawsuits filed by private citizens, although to date there are no known cases that have been filed.

At the federal level several Republicans are coming down hard on the Supreme Court for taking up a case on Wednesday that would challenge the Food and Drug Administration’s approval of the abortion pill, fearing that a ban could create another vulnerability in GOP-held swing districts.

At stake is access to a drug called mifepristone, which, along with misoprostol, comprises one-half of a two-pill prescription jointly referred to as “the abortion pill.” Together, they account for more than half of all the abortions in the United States, according to a 2022 report by the Guttmacher Institute.

The Supreme Court’s decision to overturn abortion access at a national level proved disastrous for Republicans last November, resulting in major losses in districts where abortion was a key issue. Post-election, those raw numbers turned into some stunning platform reversals for the conservative party, with GOP consultants referring to the turning tide on the issue as a “major wake-up call.” This is a significant concern for the Republican Party whose house majority is shrinking as members of resigning such as Kevin McCarthy effective in January. 

By and large, most Americans support abortion access. In a 2023 Gallup poll, just 13 percent of surveyed Americans said that abortion should be illegal in all circumstances. Meanwhile, 34 percent said it should be legal under any circumstances, and an additional 13 percent said it should be legal in most circumstances.

A decision in the abortion pill case before the US Supreme is expected by summer. The decision to the New Mexico case is hoped to be issued by the end of January. 

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