On Wednesday morning, Dec. 13, the US Supreme Court agreed to hear an appeal of the 5th US Circuit Court of Appeals’ August decision upholding an April decision by US District Court Judge Matthew Kacsmaryk in Texas restricting access to mifepristone—one of the drugs used for medication abortions. As noted by the SCOTUS blog, the mifepristone cases will be the first time the justices have weighed in on abortion since overturning Roe v. Wade in June of 2022.
That decision upended abortion access in the country, and led to a a series of actions by Gov. Michelle Lujan Grisham to safeguard reproductive health care in New Mexico for patients and providers alike, including signing House Bill 7, or the Reproductive and Gender-Affirming Health Care Act earlier this year.
The unsettled legal landscape serves as backdrop to a significant increases in abortion in New Mexico, particularly from people traveling from more restrictive states. According to the Guttmacher Institute, the proportion of abortions provided to patients traveling from out of state into New Mexico increased from 38% in 2020 to 74% in 2023, and an estimated 7,100 more people traveled to New Mexico for abortion care in the first six months of 2023 compared with a similar period in 2020. Overall, 8,200 more abortions were performed in New Mexico in the first six months of 2023 than a comparable period in 2020, and increased travel from out of state accounted for 87% of that overall increase in abortions.
The end of Roe v. Wade also led to several local governments in the eastern part of the state passing local ordinances to try to restrict access to abortion.
Last May, New Mexico Attorney General Raúl Torrez joined a coalition of 24 attorneys general to file a friend-of-the-court—amicus—brief in that US Court of Appeals for the Fifth Circuit, just one of several instances in which Torrez has joined efforts to counter other states’ anti-abortion laws.
“Attorney General Torrez believes that women have a right to access reproductive healthcare, including safe and effective medications like Mifepristone, without interference by judges and politicians,” AG Director of Communications Lauren Rodriguez tells SFR via email. “He urges the United States Supreme Court to take the politics out of these types of decisions and let women make their own, informed choices about their healthcare options.”
But Torrez had his own case regarding abortion in his own state to argue Wednesday morning, when he appeared before the New Mexico Supreme Court to lay out the arguments in the state’s suit against Lea County’s Board of County Commissioners, which, along with Roosevelt County and the cities of Hobbs and Clovis, have passed ordinances restricting abortion, despite the procedure remaining legal in New Mexico.
Those ordinances, anti-abortion advocates have said, are part of a concerted strategy to employ a federal anti-obscenity law, the Comstock Act of 1873, to restrict access to abortion medication in an attempt to advance the question to the US Supreme Court. The Comstock Act bars sending any materials considered “obscene, lewd or lascivious,” in the mail, as well as items considered “immoral” or “indecent,” including anything pertaining to contraception or abortion.
In March, the state Supreme Court granted Torrez’s request to stay—or suspend—the local ordinances pending a hearing, and directed the parties to submit briefs on the matter, particularly the legal impact of New Mexico’s recently enacted Reproductive and Gender-Affirming Health Care Act, which prohibits local governments from restricting access to health care in the way the aforementioned governmental bodies have attempted.
The names of such ordinances drew notice during the Dec. 13 hearing when lawyer Valerie Chacon, who is representing the city of Hobbs, presented the argument that by requiring licensure of abortion clinics and adherence to the Comstock Act, the city was simply asking abortion clinics to “abide by federal law and nothing more…run your business like any other business…we are not against abortion at all.”
Chief Justice C. Bacon told Chacon the title of Hobbs’ ordinance would seem to belie that statement. The title: “An ordinance amending Title 5 of the Hobbs municipal code requiring abortion providers in Hobbs to comply with federal law.”
“I understand the way you feel that that’s what the title shows,” Chacon began to respond before Bacon cut her off to warn her: “You need to be very cautious here…this is not about how I feel. This is about the title of the ordinance. There’s no dispute what the title is, correct?”
Chacon conceded the point.
Bacon also responded with incredulity, and possibly sarcasm, at Chacon’s assertion that abortion providers could still operate under Hobbs’ ban.
“So, you want New Mexico to then build manufacturing facilities that produce Mifepristone so that it’s not coming from outside of the state. That would be the scenario that you’re asking the court to agree with you on,” Bacon said.
The justices had comparable questions for the lawyers representing Lea and Roosevelt counties, the latter Washington, DC-based attorney Erin Hawley from the conservative Alliance Defending Freedom, which describes itself as “one of the leading Christian law firms committed to protecting religious freedom, free speech, marriage and family, parental rights, and the sanctity of life.”
The justices also had questions for Torrez, who opened the proceeding by noting the 100th anniversary of the first introduction of the Equal Rights Amendment to the US House of Representatives. “Women in every community in the state of New Mexico have a constitutional right to access reproductive health care,” Torrez said by way of introduction, adding that on the 100th anniversary of the introduction of the ERA: “They are looking to this court for reassurance that when they exercise that right, they are entitled to equal treatment under the law provide.”
Torrez did not get far with this line of reasoning before Justice Michael Vigil interrupted him.
“I suggest to you that this case is not about a constitutional right to abortion,” Vigil said. “And, frankly, the briefing on that is less than persuasive, at least in my mind. I think the stronger argument I have is whether or not these ordinances violate Article X, Section 6. You can argue anything you want. But to me, that’s the strongest argument you have. And I would like to hear something about that.”
Article X, Section 6 of the New Mexico Constitution, the “Home Rule Amendment,” essentially allows local governments with home rule charters to “exercise any power or perform any function not expressly denied by statute or its own charter,” as explained by the New Mexico Municipal League.
Torrez in turn acknowledged that, indeed, “the enactment of these ordinances is clearly preempted by the state’s decision to foreclose to local governments the opportunity to set independence licensing requirements for physicians or types of medical procedures in their jurisdictions.”
While Vigil argued the Home Rule law was Torrez’s strongest argument, House Bill 7, Justice Briana H. Zamora interjected, “explicitly to me, and in my mind is really your strongest argument here. I don’t know how much more clear it can be.”
The bill specifically bar public bodies from discriminating against individuals’ health care on the basis of gender.
Torrez concurred with Zamora and also argued the Comstock Act “has no application in this context, in part because respondents have no authority to advance the interests that are exclusively reserved by the United States government.”
That being said, Torrez reintroduced the constitutional issues at play toward the end of his allotted time during the hearing, and cited a 1998 opinion in New Mexico Right to Choose/NARAL v. Johnson by the late New Mexico Supreme Court Justice Pamela B. Minzner.
“This court held at that time the New Mexico’s Equal Rights Amendment is a specific prohibition that provides a legal remedy for the invidious consequences of the gender-based discrimination that prevailed under the common law and the civil law traditions that preceded it,” Torrez said. “If the Court were to, as I believe it should, follow the precedential effect of that reasoning and the structure of Justice Minzner’s reasoning, there is no reason not to apply the same constitutional metric and standard.”
Vigil, however, noted the NARAL case involved medically necessary abortions. “Your argument is not limited to medically necessary abortions; it’s just all abortions. So, isn’t that a distinction with a difference?”
Torrez in turn argued Minzner’s argument was not “predicated” on the medical necessity of a particular procedure but, rather, “on a differential funding mechanism. And it’s the disparate treatment between men and women in concert under that rubric that animated her conclusion,” he said.
That being said, Zamora noted, “assuming we agree with you that HB7 preempts these local ordinances, we don’t need to reach the constitutional issues and, generally, we don’t reach constitutional issues unless absolutely necessary. Would you agree that we shouldn’t be reaching that issue?”
Generally, yes, Torrez responded: It’s always been the practice of the court to resolve questions on a narrower basis “when facing issues of constitutional questions of public concern that require expeditious resolution.” But, he noted, given the US Supreme Court’s “abandonment” of “50 years of precedent that women in this country have relied on,” and the uncertainty its decision in the Dobbs v. Jackson Women’s Health has created—”uncertainty that prompted the action though respondents here today,” he suggested—”I think the court…should at least consider whether or not there is independent 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 as a threshold.”
Bacon closed the hearing after close to an hour and 10 minutes and said the court is taking the matter under advisement, but did not specify when a decision might be reached.
Following the hearing, Torrez released a statement re-emphasizing his points regarding the state constitution:
“Women in every community in New Mexico have a state constitutional right to access reproductive healthcare and today, on the 100th anniversary of the introduction of the Equal Rights Amendment in the United States House of Representatives, they are looking to this Court for reassurance that when they exercise that right they are entitled to equal treatment under the law,” he said. “The Supreme Court should nullify the ordinances at issue in this case and prohibit their enforcement, not only because they are preempted by state law but because they constitute a form of gender based discrimination and are unconstitutional under the Equal Rights Amendment to Article II, Section 18 of the New Mexico Constitution.”