March 5, 2023

Reproductive and gender-affirming healthcare bill heads to Senate floor next

The New Mexico State Capitol, or Roundhouse Wikicommons.

The state Senate Judiciary Committee passed a bill to protection abortion and gender-affirming health care rights by a 6-to-3 party line vote after a tense tie-breaking vote to amend the bill on Saturday.

HB 7 is sponsored by state Rep. Linda Serrato, D-Santa Fe. She said the bill “ensures we’re not adding fear so that people don’t seek life-saving healthcare.”

“It prohibits public bodies from discriminating against individuals seeking reproductive or gender-affirming healthcare,” she said.

The bill prevents public bodies, such as municipalities and counties, from passing or enforcing anti-abortion ordinances. Clovis, Hobbs, Lea and Roosevelt counties have passed such ordinances in recent months.

State Sen. David Gallegos, R-Eunice, made an appearance to speak during public comment as a member of the public. Gallegos does not serve on the SJC and he debated the bill when it appeared before the Senate Health and Public Affairs Committee last week.

“I want to bring to you my opposition to HB 7,” he said, naming Lea County, where he lives and nearby Clovis and Hobbs as places that have passed ordinances “to protect from abortion.”

“They’re ordinances based on the federal Comstock Act,” he said. “I would hate for that to be overlooked in your discussion here.”

The Comstock Act was a set of laws Congress passed in 1873 to prohibit what was, at the time, viewed as obscene literature.

The U.S. Supreme Court ruled in 1965 that the Comstock Act was not constitutional, when it decided Griswold v. Connecticut, a case that ended states’ ability to regulate married women from receiving contraception from their medical providers. But conservatives have begun to cite the Comstock Act as the legal reason to pass anti-abortion ordinances such as the ones passed in parts of eastern New Mexico, advocates have said.

Expert witness Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico, said that we are “living in a manufactured public health and constitutional law crisis.”

“…we’ve seen others circumvent the state constitution by setting up a licensing scheme. Those ordinances [in Hobbs, Clovis, Lea and Roosevelt counties] have one intention and that is to ban abortion in rural New Mexico. The risks we’re facing are for all of New Mexico, creating a checkerboard of access to care and fear in our communities,” she said.

SJC Vice Chair Katy Duhigg, D-Albuquerque, introduced an amendment which caused consternation among several committee members, particularly Republicans.

Duhigg said she took out language in the bill “because it is squishy and we don’t like squishy language in here.”

She said she inserted language that came from insurance companies to ensure that the bill could not be construed as mandating healthcare coverage. She also made changes to allow a district attorney or the attorney general to bring a claim that the court could award the “appropriate relief, including injunctive relief or civil penalty of $5,000.” She also made changes to make it clear that if an individual brings a private right of action they can get injunctive relief, compensatory relief or $5,000, whichever is greater.

“If we don’t have real consequences for a violation, then it’s meaningless,” Duhigg said.

She also cleaned up some language that came from an amendment made during the bill’s House Judiciary Committee hearing earlier in the session.

Because the amendment changes were significant in striking out language and replacing it with new language, some committee members on both sides  of the aisle complained about the process.

State Sen. Cliff Pirtle, R-Roswell, said the SJC should have been given what legislators call a committee substitute, rather than an amendment.

“To be effective and ensure there’s not unintended consequences, there should be a committee substitute. It’s hard to make good decisions the way it is now,” Pirtle said.

State Sen. Greg Baca, R-Belen, said he “reads for a living.”

“And this is difficult to read,” he said.

SJC Chair Joseph Cervantes, D-Las Cruces, said “the reason for this is tactical.”

“Let’s just be honest,” he said.

Cervantes said if SJC wrote a committee substitute, the bill would have to return to the House and restart the process of going through House committees.

“It’s an effective tactical way to run out the clock at the end of the session,” he said.

Cervantes said by amending the bill, the bill sponsor has to return to the House chamber for a concurrence vote.

“It’s important to tell folks what’s going on,” he said.

Senate Pro Tem Mimi Stewart, D-Albuquerque, suggested that Cervantes talk to the House Judiciary Committee chair to encourage them to write a committee substitute to bills in the future, which would make it easier for SJC to amend.

SJC voted on the amendment with state Sen. Daniel Ivey-Soto, D-Albuquerque, siding with Republicans on the committee which led to a tie vote that Cervantes broke by voting in favor of the amendment.

Baca asked about the word “perinatal” in the bill and asked if the bill allowed a medical provider to “finalize an abortion outside the womb.”

Serrato said the bill does not change how abortion is administered in the state and that abortion is not administered that way.

Serrato said one example of how perinatal could be interpreted is if a woman requires membranes removed from the uterus after a birth.

Pirtle asked about the language in the bill that allows the court to assess “reasonable attorney fees,” as part of the claimant’s award.

“It’s the normal practice that we strike that language,” Pirtle said.

Rushforth said this is an access to the court issue.

“The harms contemplated under this act are dignitary harms. We want an individual harmed by a public body to be able to hold them accountable. It’s appropriate to award attorney’s fees,” Rushforth said.

Cervantes asked if a public body could be sued if it does not provide reproductive healthcare or gender-affirming care.

Serrato said the bill states that no one’s scope of work would change under the bill and offered examples of what the bill would consider discrimination that prohibits an individual from receiving reproductive healthcare or gender-affirming healthcare.

“If a person is denied services if they’re seeking gender-affirming healthcare. If they were known to get gender-affirming healthcare. An individual ordinance proposed to get in the way of the healthcare that’s needed. If a person lives in Sandoval County and a healthcare doctor recommends a D and C [a procedure that is sometimes used for abortion], am I scared I’m going to be prosecuted for that?” Serrato said.

The bill heads to the Senate floor next.