City attorney: Test of anti-abortion ordinance would require state action

It is unlikely that Clovis’s new anti-abortion ordinance will be tested until if and when the New Mexico Legislature takes action regarding local government options under state law, Clovis City Attorney Jared Morris said.

Morris said on Monday the legislature could “strip county and municipal governments of the right to make exceptions to the state law,” which currently allows abortion.

When the legislature legalized adult-use recreational cannabis production and sales, he said, the legislation included language that prohibited local governments from blocking recreational cannabis operations.

Morris said the state legislature may enact similar legislation related to abortion.

Morris said he has received correspondence from the American Civil Liberties Union, however, indicating the ACLU could take “pre-emptive” legal action against the city’s anti-abortion ordinance even if no one seeking to perform abortions takes legal action.

Morris said New Mexico courts may be reluctant to give the ACLU standing in such a situation, because it may not be granted standing without a material interest in the case.

Since abortion is legal in New Mexico, the likelihood that litigation opposing an anti-abortion law would succeed in New Mexico courts is small, Morris said.

That is why the author of the city’s ordinance based the city’s law on federal legislation, Morris said.

The ordinance states the city will comply with a federal law passed in 1872 that bans shipment of medical supplies or equipment designated for abortions, Morris said.

That way, Morris said, the law could bypass the state courts and go directly to federal court, where, Morris said, the chances that the Clovis ordinance will prevail are greater than in state courts.

The federal laws forming the basis of the Clovis ordinance are the Comstock laws of 1872, Morris said.

Among other things, the Comstock laws criminalized using the U.S. Post Office or any other common carrier, railroads at that time, to send and deliver medical supplies or equipment intended for abortions.

While some of the Comstock laws have been declared unconstitutional, the law prohibiting delivery of abortion paraphernalia has not.

With the end of Roe v. Wade’s guarantee of the right to abortion for U.S. residents, Morris said, the Comstock laws may be applied to uphold Clovis’ new anti-abortion ordinance.

Morris said the author of Clovis’ anti-abortion ordinance is Jonathan F. Mitchell, an Austin, Texas, lawyer whom Morris described as a brilliant legal strategist who has devoted his practice to anti-abortion causes.

Mitchell has also been named as the author of Roosevelt County’s anti-abortion ordinance, which is also based on the Comstock laws.

Mitchell also wrote legislation in Texas, where most abortions were declared illegal immediately after the demise of Roe v. Wade, Morris said .

It remains to be seen, Morris said, whether Mitchell’s anti-abortion ordinances will succeed in New Mexico, where abortion is allowed.

If the city’s anti-abortion ordinance does face legal challenges, however, Morris said, Mitchell will be handling such litigation.

”I will leave that to Mitchell,” Morris said. “This is not my area of expertise.”

Attempts to reach Mitchell through Thursday were not successful.