August 5, 2022

Guv and AG file motion to dismiss lawsuit challenging New Mexico’s legal abortion status

Hannah Grover

Gov. Michelle Lujan Grisham and New Mexico Attorney General Hector Balderas filed a motion on Thursday to dismiss a lawsuit challenging New Mexico’s legal abortion status.

Filed in the Fifth Judicial District Court in Chaves County in late June by state Sen. David Gallegos, R-Eunice, Roswell-based write-in Independent candidate for New Mexico Commissioner of Public Lands Larry Marker and Albuquerque-based former Republican primary candidate for Governor Ethel Maharg, the original suit challenged the fact that New Mexico legislature’s repeal of the state’s 1969 anti-abortion law allows legal abortion across the state.

“Simply stated, no law, act or statute exists that allows for or legalizes abortion procedures in the state of New Mexico,” the lawsuit stated.

Abortion remains legal in the state of New Mexico because the 2021 Legislature repealed the 1969 law that banned abortion, criminalizing it with few exceptions. Lujan Grisham signed the Respect New Mexico Women and Families Act in February 2021, before the legislature ended its session. The old law had remained dormant since the U.S. Supreme Court decided Roe v. Wade but could have become a trigger law if the court overturned the 1973 decision, which it did in late June.

Lujan Grisham and Balderas’ motion to dismiss says that “by repealing the only criminal statute forbidding and penalizing abortion, the Legislature ensured that abortion could continue to be provided safely in New Mexico should the U.S. Supreme Court overrule Roe and its progeny.”

Marker responded to a request for comment by saying that he had not had a chance to read the motion to dismiss.

“The petition for declaratory judgment is simply asking the court to provide a ruling that will clarify what laws, if any, are currently valid in New Mexico. To be honest, I am wondering why anyone would oppose the court providing some clarity,” he wrote in an email to NM Political Report.

The motion to dismiss states that the plaintiffs have “failed to cite to any authority permitting them to sue the Governor or the Attorney General for the relief they seek.

“The Complaint only cites to the Declaratory Judgment Act, which the Supreme Court has ruled is insufficient to demonstrate the state’s consent to be sued.”