May 15, 2023

New Mexico locales pass more anti-abortion ordinances than other pro-abortion states

Bill Moree

Abortion rights sit in, Washington D.C. 2022

Despite abortion in New Mexico remaining legal and recent legislation to further protect care, municipalities and counties have passed more anti-abortion ordinances than other states that are considered pro-abortion.

Andrea Miller, president of the National Institute for Reproductive Health, told NM Political Report that attempts to pass similar ordinances have occurred in other states but no other state has had as many locales pass anti-abortion ordinances as New Mexico that are pro-abortion. Her group monitors anti-abortion ordinances passed at the local level around the U.S.

The town of Edgewood is the latest of six locales in New Mexico that have passed anti-abortion ordinances. The city council passed the ordinance at the end of an eight-hour public meeting last month.

When asked if she thought New Mexico has become the new battleground for abortion rights, Miller said that “might be giving these things too much credence.”

“A very small proportion of these kinds of extreme measures are up against an overwhelming degree of support and elected officials are taking affirmative steps at the state level to not only safeguard access but also to expand it,” she said.

New Mexico Attorney General Raúl Torrez filed a stay with the state Supreme Court in March to pause some of the local ordinances that have passed in the state, but Edgewood passed its ordinance in April and is not, technically, part of that stay request. The case is still pending.

Lauren Rodriguez, spokesperson for Torrez’s office, said Edgewood’s ordinance “is yet another example of Texas-based lawyers misleading local communities and enlisting them in their efforts to bring about a national abortion ban.”

“The New Mexico Constitution and state statutes prohibit local communities from regulating access to healthcare or infringing on a woman’s fundamental right to make the most personal decision regarding her body and her future. Attorney General Torrez is closely monitoring these unlawful actions and looks forward to resolving these important issues in the action currently pending in the New Mexico Supreme Court,” Rodriguez said in an email.

Miller said some municipalities in Texas passed similar anti-abortion ordinances before the U.S. Supreme Court overturned Roe v. Wade in its Dobbs decision. But since Dobbs, Texas has banned abortion across that state.

Miller said there has been a similar effort in a small town in Colorado and in Arizona, both of which were unsuccessful. She said an anti-abortion ordinance is being considered in a small town in Illinois.

Angela Vasquez-Giroux, vice president of Communications and Research for NARAL Pro-Choice America, said similar ordinances have been “shopped around” in small locales in Florida, Nebraska, Montana, Virginia and Nevada.

But four small municipalities and two counties in New Mexico have passed such ordinances. The town of Alamogordo and the county of Otero passed “sanctuary for the unborn” resolutions in 2022, but resolutions do not carry enforcement ability.

And, while the anti-abortion ordinances are similar in that they focus on prohibiting abortion medication sent through the U.S. mail, two now mirror Texas’ six-week gestational ban that the U.S. Supreme Court did not strike down in 2021. The Texas law created a judicial bypass system that left enforcement up to individual citizens, rather than the state.  

Ellie Rushforth, a reproductive rights attorney with American Civil Liberties Union of New Mexico, said Roosevelt County was the first of the six New Mexico locales to pass an anti-abortion ordinance that creates a judicial bypass system similar to the novel Texas six-week ban.

The Roosevelt County ordinance allows residents of the county to sue anyone in the county for more than $100,000 if they attempt to terminate a pregnancy with abortion medication sent through the mail. There are no abortion clinics in Roosevelt County and the U.S. FDA recently changed its rules to allow clinics to mail abortion medication.

The Roosevelt County ordinance also allows citizens of Roosevelt County to sue others in the county who “aid and abet” an abortion obtained through mailed medication.

“Your neighbor or a stranger on the street can decide whether or not you’ve violated this ordinance for a minimum of $100,000,” Rushforth said.

She said the ordinances “blatantly” violate New Mexico constitutional law.

“It’s very clear when you read these ordinances, they’re not written by somebody who practices law in New Mexico,” she said.

Former Texas Solicitor General Jonathan Mitchell is credited as the author of the ordinances being adopted or heard around the country. Mitchell crafted the Texas six-week gestational ban in 2021. That law was novel because of the judicial bypass system it established. It effectively stopped most abortions in Texas because many pregnant individuals don’t know they are pregnant before six weeks.

Mitchell did not respond to a request for comment.

Vasquez-Giroux said it’s important to remember these legal strategies are not “an organic grassroots movement; it’s a coordinated legal strategy.”

“Mitchell came up with the vigilante enforcement behind Texas [six-week gestational ban] and I’m not surprised he’s inserting it into local law. It’s troubling that it was not stopped by the Supreme Court. It doesn’t bode well to see that expanded on a city by city basis,” Vasquez-Giroux said.

A few months after Roosevelt County passed its ordinance, the town of Edgewood spent eight hours considering its anti-abortion ordinance. Its only enforcement mechanism is that it allows residents of Edgewood, a town of 6,000 about 30 miles east of Albuquerque, the ability to sue anyone in the town who “aids and abets” an abortion obtained through medication sent through the mail.

Miller said the ordinance “creates a vigilante scenario.”

“Anyone could decide to try to use this ordinance to try to attack someone they have a grudge against, to undermine someone trying to help a neighbor or family member, punish them for supporting healthcare that is both necessary and extraordinarily popular and much needed,” Miller said.

Both the Roosevelt County and the Edgewood ordinance rely on a legal concept called a right of private action, which means the right of one individual to sue another.

Rushforth called it “an end run around our state constitution to allow individuals to sue anyone they think have violated these extremists’ anti-abortion ordinances.”

Rushforth said the evidence needed to pursue a civil lawsuit under the ordinances is “really vague.” She said the enforcement mechanism, the penalties and the legal process written in the ordinances are “incredibly confusing.”

“What it encourages is private surveillance and deputizing any resident of these municipalities and counties to investigate another person’s medical condition,” Rushforth said.

Mark Lee Dickson, a pastor who is credited as strategic in helping to pass Texas six-week ban in 2021, reached out to NM Political Report after the story published to say that Texas locales continue to pass anti-abortion ordinances and that this is important because the Texas-based locales’ ordinances now prohibit their residents from seeking abortion in other states, including New Mexico. He said Texas and Nebraska locales have passed more anti-abortion ordinances than New Mexico. He said Texas cities have passed 50 anti-abortion ordinances while Nebraska locales have passed eight.

Update: This story was updated and corrected to reflect that New Mexico locales have passed more anti-abortion ordinances than other pro-abortion states, not that it has passed more than all states; and to add Mr. Dickson’s comments. Also, the NM Supreme Court case is still pending, not hearing arguments this month.