By Austin Fisher/Source New Mexico
New Mexico’s highest court began hearing oral arguments this week in a constitutional challenge to abortion regulations enacted or considered by six local governments.
In late 2022 and early this year, the Clovis, Hobbs, Roosevelt County and Lea County governments each enacted local ordinances which say the New Mexico Constitution “does not and cannot secure a right, privilege or immunity to act in violation of” the Comstock Act of 1873, federal statutes that ban the mailing of anything “obscene, lewd, lascivious” or considered morally impure, including abortion pills or abortion-related materials.
Edgewood has already gained a measure of notoriety for its law – which cannot be enforced since it was successfully challenged for referendum – that bans the receipt of abortion materials through the mail.
Afterwards, the New Mexico Legislature passed and Gov. Michelle Lujan Grisham signed House Bill 7 which prevents governments or individuals from interfering with or discriminating against someone’s access or use of reproductive or gender identity health care.
New Mexico Attorney General Raúl Torrez sued and is now asking the New Mexico Supreme Court to strike down the ordinances because he says they violate the new state law.
Torrez is also asking the New Mexico high court to go further.
He wants the justices to determine that the personal decision to terminate a pregnancy is protected under the state constitution.
The U.S. Supreme Court may have overturned Roe v. Wade, but Torrez says the state Supreme Court’s prior decisions offer a pathway to “greater due process protections than those provided under federal law.”
“The ordinances infringe New Mexicans’ constitutional rights to privacy, liberty, and bodily autonomy,” Torrez wrote in his written arguments on April 20. “Although the Court has not decided whether the New Mexico Constitution’s due process guarantees include a right to choose whether to terminate a pregnancy, the broad, protective language of the State’s Constitution supports such an interpretation.”
Former Texas solicitor general Jonathan Mitchell is arguing on behalf of Clovis and Hobbs. He wrote nothing in the New Mexico constitution, nor the recent state law HB 7, creates a right for people to mail abortion pills or “abortion-related paraphernalia” because he argues it is in violation of the Comstock Act.
“The Attorney General cannot identify anyone—real or hypothetical—who is being hindered in obtaining an abortion on account of the ordinances, or who is suffering a violation of their supposed constitutional rights,” Mitchell wrote in an answer brief on May 10. “And if there were any person who was being adversely affected by these ordinances, that person could sue on their own behalf.”
The Roosevelt County Board of County Commissioners is making a similar argument in their answer brief filed on the same day.
“There is no world where the ordinance implicates an alleged state constitutional right to abortion, unless that right were construed to be a right to unregulated abortion on demand uninhibited by federal law,” wrote Michael I. Garcia and two Alliance Defending Freedom attorneys, Daniel Tadhg Bagley and Erin Hawley.
Mitchell, the architect of a bounty-style six-week abortion ban in New Mexico’s neighboring state of Texas, was involved in the passage of the local ordinances.
He is also arguing that HB 7 leaves local governments free to prohibit mailing abortion drugs because it protects only access to reproductive care “within the medical standard of care,” which would not include conduct criminalized by the Comstock Act.
In his reply brief on May 22, Torrez says these arguments miss the point.
“The State does not argue that New Mexico’s laws do any such thing; nor does the State need to make such an argument in order to show the ordinances’ unconstitutionality,” New Mexico’s Attorney General wrote.