July 31, 2018

NM state law, the U.S. Supreme Court and abortion access

Joe Gratz


Reproductive healthcare and abortion access may be profoundly personal decisions, but changes to public policy in New Mexico could generate repercussions that extend far beyond the most private experiences of women across the state.

According to recent analysis by the Guttmacher Institute, nearly one-in-four women in the United States have had or will have an abortion by age 45. And since Associate Supreme Court Justice Anthony Kennedy announced in June that he would retire July 31, attention to a 50-year-old New Mexico law has intensified. Dormant since Roe v. Wade legalized abortion in 1973, the statute would go back into effect if Roe is overturned, meaning anyone who performs an abortion in New Mexico could be charged with a 4th-degree felony.

Read this story’s companion piece, “Midterms could be key, with New Mexico’s abortion rights protections at a crossroads,” here

The social stigma attached to abortion means that many people don’t talk about it openly, said Planned Parenthood of New Mexico CEO Vicki Cowart in a recent interview, but there are millions of women for whom it has played a part in their personal and family histories.

“And that’s the bottom line on this. Getting rid of Roe won’t end abortions. It just means that women start dying again,” said Cowart. “I think we know that viscerally, but it’s really scary for the people who do remember it.”

National nonprofit advocacy group NARAL, which opposes restrictions on abortion rights and access, ranks New Mexico as currently having “protected access.” That’s based, in part, on the state Constitution and its Equal Rights Amendment, which NARAL says “protects the right to choose to a greater extent than the U.S. Constitution.”

New Mexico’s old law criminalizing abortion also includes protections against workplace disciplinary or retaliatory measures for medical professionals who object to abortion on moral and religious grounds.

And while there are exceptions written into the law, they’re not straightforward.

If a woman whose pregnancy resulted from rape or incest needs an abortion, she’d have to either present a formal affidavit to a hospital’s “special medical board” or assure the board that she planned to or had already pressed charges against the offender. An abortion would be legal if a woman’s pregnancy resulted in a severe fetal defect or posed a grave risk to the mother’s health, as long as her medical provider received written certification by members of a hospital’s “special medical board” that the abortion was warranted.

In 1973, a Lovington doctor was charged and convicted of “criminal abortion” under the state law. But the charges were overturned by the New Mexico Court of Appeals, based primarily on the legal precedent set by Roe v. Wade.

In a separate opinion on the New Mexico case, Judge Lewis Sutin wrote that “legislation which seeks protection of prenatal life should not be adopted unless some strong compelling state interest demands it. No such compelling interest exists in New Mexico.”

The state’s 1968 criminal abortion law, he wrote, “establishes beyond a doubt that the statute serves no state welfare or safety interest.”

Anti-abortion laws had the same effect on the health and welfare of women that alcohol and drug prohibition did for Americans at large, Sutin added. The underlying causes weren’t stemmed, while criminalization pushed people into an unsafe, unregulated underground. “Every pregnant woman should have the freedom openly to seek the services of a licensed physician, the use of clean offices or hospitals,” Sutin wrote. “This is her right to privacy and the right to be left alone. In the event of harm, she is protected by the laws of medical malpractice.”

Erin Armstrong, a staff attorney at the ACLU of New Mexico, referred to a 1998 state Supreme Court ruling which cited the state’s Equal Rights Amendment in the court’s decision that low-income women could not be denied access to abortion simply because they were insured through Medicaid.

“We do feel confident that our state Constitution and state courts will protect a woman’s right to choose under our state Equal Rights Amendment,” Armstrong said. However, she added, if Roe v. Wade is overturned and New Mexico’s old statute is still in place, Constitutional protections could still be tested with costly litigation.

New Mexico’s outdated law should be updated, Armstrong said, “to reflect New Mexico values. It feels no less important just because we do have these greater protections in our state Constitution.”

Last year’s attempts to repeal New Mexico’s 1968 abortion criminalization law got stuck in state committee proceedings, in part because Republican lawmakers were protective of its moral and religious exemptions for medical personnel. The bill wasn’t heard in this year’s short, budget-focused legislative session.

Yet overturning Roe v. Wade may not be needed to eliminate abortion rights in New Mexico and elsewhere.

Supreme Court decisions after Roe v. Wade, such as the landmark 1992 Planned Parenthood v. Casey ruling, already paved the way for states to impose a range of restrictions on abortion access, including mandatory waiting periods, fetal gestational restrictions and limits on both public funding and private insurance coverage of procedures.

According to legal scholar David Cohen, a conservative majority on the Supreme Court could rule that abortion regulation is out of federal hands and fully within states’ power to regulate, not regulate or even criminalize. Such a ruling could also potentially open the door to a U.S. Congressional ban on abortion.

Local organizations opposed to abortion rights, such as the New Mexico Family Policy Alliance, New Mexico Alliance for Life and Right To Life New Mexico are all urging supporters to advocate for Kavanaugh’s confirmation.

Cowart said she and other abortion rights advocates are alarmed that Kavanaugh’s judicial history includes opposition to the Affordable Care Act’s mandate that employers provide birth control, as well as his opposition to an undocumented immigrant teenager’s request for an an abortion while she was in federal detention. Kavanaugh’s positions in other D.C. circuit court rulings regarding religious freedom have bolstered supporters and alarmed critics.

Cowart said that Planned Parenthood is urging U.S. Senators to “insist any nominee to the Supreme Court affirmatively declare that they believe the U.S. Constitution protects individual liberty and the right of all people to make their own decisions about their bodies and personal relationships, including the right to use contraception, the right to have an abortion, and the freedom to marry whoever they choose. “That’s the trifecta.”

This presidential administration and U.S. Supreme Court nominee threaten individual liberty and the ability of people to make decisions about their own health, Cowart said. “It’s not just about abortion.”

Margaret Wright is a contributor to NM Political Report. Email her at margaret.wright@protonmail.com