AG says anti-abortion ordinances invalid

SANTA FE -- Anti-abortion ordinances adopted by elected officials in two cities and two counties in a conservative region of southeastern New Mexico violate the state constitution’s Bill of Rights, making them invalid, Attorney General Raúl Torrez wrote in a legal brief.

“The ordinances’ singling out abortion for licensure and other regulation, in contrast to other medical procedures, violates the Equal Rights Amendment’s protection against pregnancy-based discrimination,” Torrez wrote, according to a draft of the brief, filed with the state Supreme Court late Thursday.

“Furthermore, the ordinances infringe New Mexicans’ rights to choose whether to continue a pregnancy guaranteed by the State Constitution’s protection of due process and inherent rights.”

The filing is the latest salvo in a petition the first-term Democrat brought against the four local governments to try to nullify their ordinances, which give each government the discretion to prohibit abortions and abortion clinics within their boundaries. The petition named the cities of Clovis and Hobbs, as well as Lea and Roosevelt counties.

The city of Eunice, also in southeastern New Mexico, enacted a similar measure, while officials in Edgewood in southern Santa Fe County are set to vote on an anti-abortion ordinance this week.

After Torrez filed his petition, the state’s high court temporarily suspended the four governments’ ordinances and requested briefs — due by midnight Thursday — related to a bill Gov. Michelle Lujan Grisham recently signed into law.

House Bill 7, which the Legislature passed primarily along party lines during this year’s 60-day session, overrides any local ordinances aimed at limiting access to reproductive health care, including abortion, as well as gender-affirming care.

Torrez wrote HB 7 reinforces the Legislature’s intent to preempt local authority.

“House Bill 7 expressly limits local governmental authority over reproductive health care,” the briefing states. “In conflict with this provision, however, the ordinances seek to restrict access to reproductive health care by creating a licensing requirement and by punishing physicians and clinics.”

The city of Eunice filed a lawsuit Monday in state District Court challenging HB 7.

“We believe and I believe that all the abortion industries in New Mexico are working against federal statute, so they should be closed down,” Republican state Sen. David Gallegos of Eunice told The Associated Press. “I know that’s not the governor’s premise.”

The local governments’ ordinances rely on what is commonly called the Comstock Act, a set of federal laws that impose felony liability for shipping or receiving abortion pills or abortion-related paraphernalia through interstate commerce, and “purport” to enforce federal provisions, the briefing states.

Torrez said the Comstock laws are inapplicable.

“The local governments are deeply mistaken in believing that a handful of local officials have the power to establish national policy or federal criminal law,” he wrote.

Torrez accused the four governments of trying to “bait” the state’s high court into basing its decision on federal law.

“Undoubtedly, this is an effort to pursue further review in the United States Supreme Court, which is the stated desire of these local governments and their out-of-state counsel in crafting the ordinances,” he wrote.