January 14, 2021

Legislators will again try to repeal antiquated abortion ban

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With a new set of members in the state Senate, a bill to repeal the New Mexico 1969 abortion ban is expected to be filed in the upcoming New Mexico Legislature.

Six Democrats who support abortion rights beat Republicans in November, in some cases after defeating anti-abortion Democrats in June’s primary, for state Senate seats, tipping the balance of power further to the left in the upper chamber. The state Senate defeated the 2019 effort to repeal the antiquated state law that bans abortion with few exceptions.

Related: State Senate shifts left with progressive wins

Of the eight Democrats who sided with Republicans on the repeal vote two years ago, only two remain: state Sen. George Muñoz, D-Gallup, and state Sen. Pete Campos, D-Las Vegas. Incoming state Senators Carrie Hamblen, Siah Correa Hemphill and Leo Jaramillo, all progressive Democrats who ran on reproductive health, defeated their incumbent Democrat opponents in the primary and then won again in November against their Republican challengers.

Related: Progressive Democrats defeat incumbents, with some races still pending

In addition, Democrats who support abortion rights picked up wins in the Albuquerque area in November. Incoming state Sen. Martin Hickey, a Democrat, won the seat previously held by retired Republican William Payne in SD 20. Incoming state Sen. Harold Pope, Jr., also a Democrat, challenged and defeated Republican incumbent Sander Rue for SD 23. And Democratic incoming state Senator Katy Duhigg defeated Republican incumbent Candace Gould in SD 10.

In addition, incoming state Sen. Brenda McKenna (Nambé), beat a Republican challenger to hold onto Democratic state Sen. John Sapien’s seat in SD 9.

This has given greater confidence to reproductive advocates that this year, the bill can pass.

Related: Reproductive rights advocates: A really good night for abortion access

The 1969 law bans abortion except in the event the woman’s life is in jeopardy, if the fetus would likely suffer severe physical or mental disability or if the woman was the victim of rape or incest. The law became unenforceable when the U.S. Supreme Court established the legal right to abortion when it ruled on Roe v. Wade four years later. 

But the New Mexico law is antiquated in other ways, according to abortion rights experts.

Related: New Mexico’s 1969 abortion law was one in a long line of laws restricting access

The 1969 law states that a pregnant woman must appeal to a hospital, which would then create a special commission that would hear the woman’s case. Even if the special hospital commission agreed to the abortion, a clause in the 1969 law makes it possible that a physician could still refuse to perform the abortion.

That is not how medicine is practiced anymore, Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico, has said.

Adriann Barboa, field director for the nonprofit Strong Families New Mexico, said that in the state Senate Judiciary Committee in 2019, a clause that was added to the bill would have kept language from the 1969 law that allowed doctors to refuse performing an abortion if they objected to the procedure.

“Every doctor already has the right to not perform medical care. Doctors largely already have that right,” Barboa said.

She said she believed adding the clause to the 2019 bill was politically motivated.

NM Political Report was told the sponsor of the state House bill will be state Rep. Micaela Lara Cadena, D-Mesilla, and a simultaneous Senate bill will be sponsored in the state Senate by Sen. Linda Lopez, D-Albuquerque. Cadena said she would be available to speak about the bill once the Legislature goes into session. Lopez did not respond to repeated calls and emails.

Gov. Michelle Lujan Grisham supports the bill, said her Press Secretary Nora Meyers Sackett. Lujan Grisham placed the repeal bill on her priority list for the 2021 Legislature, calling it protecting health care providers. The 1969 abortion ban makes providing an abortion a felony for health care workers who defy the old law.

Barboa said that given the composition of the U.S. Supreme Court, the state Legislature needs to pass this bill.

“What we have in front of us now is exactly what we were trying to prepare for (in 2019),” Barboa said of the 2019 repeal effort that failed in the state Senate.

The U.S. Senate confirmed U.S. Supreme Court Justice Amy Coney Barrett to fill the opening created by Justice Ruth Bader Ginsburg’s death in September. Coney Barrett has called Roe v. Wade “barbaric.”

Related: Amy Coney Barrett confirmed to Supreme Court, as New Mexico’s senators vote against

“There is a clear path and already pending (Supreme Court) cases to chip away at or gut Roe. We do need to do this quick,” Barboa said.

A ruling the Supreme Court made this week brought home the need to pass the repeal bill in the 2021 Legislature, Rushforth said. With only one week left of the Trump administration, the Supreme Court ruled on Tuesday in favor of the Federal Drug Administration on accessing the medication abortion pill mifepristone during the pandemic. Although powerful opioids are available now through telehealth, an abortion patient must travel to an abortion clinic to pick up mifepristone in person, although they can take the pill at home. The American College of Obstetrics and Gynecologists sued the FDA early in the pandemic to enable abortion patients to also access mifepristone through telehealth. The ACOG said in its argument that making women travel to an abortion clinic to pick up mifepristone increases the risk of patients contracting COVID-19.

Rushforth said the Biden administration could issue new rules for the FDA once they are in office, but she also said this decision is a signal of what’s to come from the Supreme Court.

Related: Supreme Court brings back restrictions on medication abortion

Abortion is an LGBTQ issue

Marshall Martinez, interim executive director of the nonprofit Equality New Mexico, also supports the repeal.

Because there is a dearth of data on LGBTQ communities, Martinez could not say how many likely transgender men there might be in the state, but it’s possible that a transgender man could need an abortion.

The other piece of it is that with the LGBTQ community’s historical struggles for liberation, the community’s efforts are so “we should decide what to do with our bodies and how we build our families. We get to decide if, when and how to create our family,” Martinez said.

In addition, bodily autonomy is a core principle of LGBTQ liberation, Martinez said and it’s important to make sure transgender people are “part of the conversation.”

“This is one piece of a whole quilt of policies that impact decisions people make about their bodies. We believe people should get to make their own decisions about their healthcare and their bodies,” Martinez said.