The New Mexico Supreme Court will decide whether anti-abortion ordinances passed by local governments in eastern New Mexico over the last 13 months can stand or if they violate a law enacted in 2023 that prohibits a patchwork of varying abortion rights within the state.

After hearing oral arguments in the case, State of New Mexico v. Board of County Commissioners for Lea County et al, on Wednesday morning, the five New Mexico Supreme Court justices took the case under advisement and will make a ruling at a future date.

Six jurisdictions – Hobbs, Eunice, Clovis, Edgewood municipalities and Lea and Roosevelt counties – have passed anti-abortion ordinances over the last 13 months. Otero County and Alamogordo passed anti-abortion resolutions in the summer of 2022, but resolutions do not carry enforcement capability. The Edgewood ordinance was the last of the six to pass its town council and it differs in that it leaves the enforcement to local residents, similar to the Texas six-week abortion ban passed in 2021. The Edgewood ordinance was not named in the suit.

New Mexico Attorney General Raúl Torrez filed suit against the jurisdictions soon after he took office last winter, arguing that the ordinances violated state statute. When the 2023 New Mexico legislature passed HB 7, a bill that sought to, among other things, bar local governments from abortion restrictions. Governor Michelle Lujan Grisham signed it a few days later and Torrez asked the New Mexico Supreme Court to consider the ordinances in light of the new law.

But Torrez asked the court to go further than decide if the ordinances violate already existing state law and HB 7 and make a broader opinion, based on the state’s Equal Rights Amendment, about individuals in New Mexico having the right to an abortion under the state’s constitution. 

“By taking up the constitutional dimension in this state, you will afford women in this state a greater level of constitutional protections under our own constitution. A bulwark against the encroachment on their privacy rights and on their treatment by exploring the constitutional dimensions. If you don’t do this at this moment and you certainly could wait for the parade of horribles. I would submit this is not going to stop. The question is going to come back before the court,” Torrez said in his closing arguments.

Justice Michael Vigil said the case was “not about the constitutional right to abortion” and he considered the briefing on that question to be “less than persuasive.”

Torrez likened the smaller jurisdictions’ anti-abortion ordinances to a situation wherein certain jurisdictions within New Mexico might not want cannabis to be legal, despite the fact that it is legal by state law. 

Rebekah Gallegos, an attorney who argued the state’s position on behalf of several reproductive rights organizations, also spoke to the justices. Gallegos said the anti-abortion ordinances are “not about the Comstock Act.”

The local anti-abortion ordinances argue that businesses within their jurisdictions must comply with the Comstock Act. 

“The question we’re talking about the whole time: do local authorities have the ability to regulate care and the answer is no,” Gallegos said.

The U.S. Congress passed the Comstock Act 150 years ago under President Ulysses S. Grant. The Comstock Act, named for a postal inspector in the American Reconstruction era, bans pornography and drugs that used to be called “abortifacients” and which were sent through the U.S. mail. But the law was written before the federal government, under President Theodore Roosevelt, created the U.S. Food and Drug Administration to regulate and approve drugs in the early 1900s.

A University of New Mexico law professor spoke with NM Political Report earlier this year about the Comstock Act and he said that the legal gray area lies in the fact that when the U.S. Supreme Court ruled on Griswold v. Connecticut in 1965, the high court did not explicitly overturn the Comstock Act but rendered it moot when it ruled that states could no longer ban married couples from obtaining and using contraception.

Related: Professor questions merits of lawsuit seeking to weaken abortion rights law

Anti-abortion activists have been trying to revive the law, arguing that when the court overturned Roe v. Wade in its Dobbs decision last year, that that action made the Comstock Act the law of the land again.

Valerie Chacon, an attorney for the city of Hobbs, argued that Hobbs was not trying to regulate abortion but that it had passed an ordinance regulating businesses. 

“We have the inherent right to govern business and that is all we are trying to do. We’re not trying to ban abortion,” she said.

But Justice David Thomson asked Chacon if Hobbs is regulating medical treatment through business licensing for men. 

Chacon said “no.”

“That’s all I have,” Thomson said.