SANTA FE, N.M. – The New Mexico Supreme Court is weighing whether to strike down local abortion restrictions by conservative cities and counties at the request of the attorney general for the state where abortion laws are among the most liberal in the country.
The high court heard oral arguments for roughly an hour Wednesday without a ruling as lawyers and activists packed the small courtroom and state police vehicles lined the street outside in a rarely seen security deployment.
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It's unclear how soon the justices may rule after temporarily blocking local anti-abortion ordinances. At least one abortion provider abandoned efforts to open a facility in eastern New Mexico near the Texas state line as a result of local restrictions, relocating to Albuquerque instead.
At least four state supreme courts are grappling with abortion litigation this week in the aftermath of the U.S. Supreme Court’s decision last year to rescind the constitutional right to abortion.
Opposition to abortion runs deep in New Mexico communities that border Texas. In Lea and Roosevelt counties and the cities of Hobbs and Clovis, officials argue that local governments have the right to back federal abortion restrictions under a 19th century U.S. law that prohibits the shipping of abortion medication and supplies.
They say the local abortion ordinances can't be struck down at least until federal courts rule on the meaning of provision within the “anti-vice” law known as the Comstock Act.
The law has been revived by anti-abortion groups and conservative states seeking to block the mailing of mifepristone, a medication used in the most common method of abortion in the United States. On Wednesday, the U.S. Supreme Court agreed to take up a dispute over the drug it its first abortion case since it overturned Roe v. Wade last year.
Beyond New Mexico, the act underpins an anti-abortion “sanctuary city” ordinance in Danville, Illinois, and several proposed ordinances for jurisdictions stretching from Montana to rural Grayson County in Virginia, said Mark Lee Dickson, a Texas-based advocate for local restrictions on abortion and related travel.
Attorney General Raúl Torrez argued Wednesday that the Comstock Act does not confer authority on local governments to enforce federal restrictions on abortion, just as they can't override New Mexico's legalization of recreational cannabis.
He said the local abortion ordinances violate constitutional guarantees under the New Mexico’s equal rights amendment that prohibits discrimination based on sex or being pregnant.
Torrez urged the court to clarify women's right to abortion.
“The court should at least consider whether there is an independent state constitutional basis for announcing a basic proposition that women in this state have a constitutional right, under the equal rights amendment, to access reproductive health care,” he said.
Earlier this year, New Mexico Gov. Michelle Lujan Grisham signed a bill that overrides local ordinances aimed at limiting abortion access and enacted a shield law that protects abortion providers from investigations by other states.
Erin Hawley, a Washington-D.C.-based attorney representing Roosevelt County, argued that the new state law doesn't prevent local governments from interfering with services such as abortion that fall outside standardized medical obligations to patients.
“We would disagree with it being health care,” said Hawley, senior attorney at the Alliance Defending Freedom and wife of U.S. Sen. Josh Hawley of Missouri. “These services are not within the medical standards of care.”
Justices peppered the attorney general and three attorneys for local governments with questions, voicing skepticism on a variety of arguments.
Since the court case began, additional local ordinances have been adopted to restrict abortion near Albuquerque and along the state line with Texas.
New Mexico is among seven states that allow abortions up until birth, and it has become a major destination for people from other states with bans, especially Texas, who are seeking procedures.
Because of New Mexico’s permissive abortion laws, some nearby Texas counties have sought to prevent pregnant women from using its highways to leave the state for the procedure. The ordinances, including one recently adopted in Lubbock County, ban helping people travel within local boundaries to get an abortion. The measures are solely enforced by lawsuits filed by private citizens, although to date there are no known cases that have been filed.
A pregnant Texas woman whose fetus has a fatal condition left the state to get an abortion elsewhere before the state's Supreme Court on Monday rejected her unprecedented challenge of one of the most restrictive bans in the U.S.
In 2021, the New Mexico Legislature repealed a dormant 1969 statute that outlawed most abortion procedures as felonies, ensuring access to abortion even after the U.S. Supreme Court rolled back guarantees last year.