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Earlier this month, the New Mexico Supreme Court heard oral arguments over whether a group of cities and counties in eastern New Mexico had violated state law by passing anti-abortion ordinances. New Mexico Attorney General Raúl Torrez asked the court to go further and also determine if the state’s constitution protects abortion under its Equal Rights Amendment.
The court took the arguments into consideration and did not rule from the bench. But the six local governments that passed anti-abortion ordinances, Clovis, Eunice, Hobbs, Edgewood and Roosevelt and Lea counties, began to do so about 13 months ago. Some city councils deliberated over the question of passage over multiple meetings. All of them heard hours of debate from the public and held meetings that ran for hours. The Edgewood City Council didn’t vote didn’t until around 1 a.m., eight hours after its public meeting began at 5 p.m. the evening before.
The city of Eunice sued Torrez and Governor Michelle Lujan Grisham during the winter months to maintain its anti-abortion ordinance. Eunice’s suit is based on the Comstock Act, a law the U.S. Congress passed under the Ulysses S. Grant administration when a post master named Anthony Comstock made an appeal because of the pornography and drugs being passed off as medicine he saw traveling through the U.S. mail.
A University of New Mexico legal scholar said the U.S. Supreme Court’s Griswold v. Connecticut decision in 1965, which ended state bans on married couples’ use of contraception, made the Comstock Act null and void.
But Eunice and other of the small governments that have passed the anti-abortion ordinance have made the argument that the court’s overturning Roe has meant the Comstock Act is in effect now. The argument overlooks the fact that Congress passed the law prior to the creation of the U.S. Food and Drug Administration in the early 1900s. The FDA now has oversight over abortion medication and other drugs.
After Edgewood, about a 30-minute drive from Albuquerque, became the sixth local government to pass an anti-abortion ordinance, New Mexico became the abortion safe-haven state with the most anti-abortion ordinances passed at the local level, a reproductive rights organization that tracks these things said. As of mid-2023, only Nebraska and Texas had passed more anti-abortion ordinances at the local level.
Soon after Torrez took office at the beginning of 2023, he filed suit against the small governments that had passed the anti-abortion ordinances. A few months later, the New Mexico legislature passed and Gov. Michelle Lujan Grisham signed a few days later a law that prohibits public bodies from discriminating against reproductive and other rights. The primary sponsor of that bill, state House Rep. Linda Serrato, D-Santa Fe, said she was trying to prevent what she called a patchwork of regulations. She said the bill was being discussed before the small governments began passing the anti-abortion ordinances because it was obvious where the next frontier in the abortion battle would go.
Torrez asked the state Supreme Court to consider whether the ordinances were in violation of the new state law.
New Mexico set a date in August 2023 to hear oral argument.
