High court set to make abortion restriction decision

New Mexico’s highest court will soon decide whether local governments have the right to restrict abortion in the face of state laws protecting abortion access.

Attorney General Raúl Torrez, who is challenging several conservative eastern New Mexico cities and counties that have passed anti-abortion ordinances, said during Wednesday’s state Supreme Court hearing that such ordinances are “preempted by state law.”

This doesn’t just apply to abortion, Torrez said — other laws, such as the state’s legalization of recreational cannabis, similarly cannot be ignored or contradicted by local governments either.

Erin Hawley, a Washington, D.C.-based attorney representing Roosevelt County, countered local authorities do have room to challenge state laws. In an interview after the hearing, she said many municipalities have passed their own minimum wage laws despite New Mexico’s statewide law.

“New Mexico has a history of localities ... that deal with problems rather than rely on faraway legislators in the state capital,” she said.

Gov. Michelle Lujan Grisham vowed during her reelection campaign last year to codify abortion rights in the state, after the U.S. Supreme Court overturned the historic 1973 Roe v. Wade ruling that mostly prohibited states from restricting abortion before the third trimester.

The 2022 high court ruling spurred many Republican-run states to ban abortion or enact strict limits. Some conservative municipalities in New Mexico have also tried to restrict abortion, using the federal 1873 Comstock Act — which prohibits mailing abortion-related materials but which has long gone unenforced by the federal government — as the legal grounds.

Earlier this year the state Legislature passed House Bill 7, known as the Reproductive and Gender-Affirming Health Care Freedom Act, which prohibits local governments from restricting access to abortion.

This state law, Torrez says, means that the measures passed by Lea and Roosevelt counties, Clovis, Hobbs and Edgewood are illegal. Earlier this year, he asked the state Supreme Court to rule on the matter, writing in his original complaint there are “matters of statewide concern for which there is clear legislative intent to preempt local legislation.”

Lawyers for the municipalities said Wednesday they have the right to adopt federal laws and there is nothing unconstitutional in their actions, adding their ordinances do not outlaw abortion outright.

“We are not against abortion, not at all,” said attorney Valerie Chacon, who is representing the city of Hobbs. She said the ordinances are designed to ensure any business opening in the area follows federal, state and local laws.

Chief Justice C. Shannon Bacon did not buy that argument.

“You’re allowing them [abortion providers] to open up a four-wall building and do nothing,” she told Chacon.

Bacon said such ordinances have a “potentially very chilling effect” on any number of issues beyond abortion and could discourage abortion providers from moving into the counties and cities that create them.

At a news conference after the hearing, Torrez said he felt the justices were “supportive of the idea local governments cannot usurp state law.”

On the whole, he said, he was “very encouraged” by the high court’s response.

Before recessing, Bacon said the five-member court — all Democrats — will review the matter and issue a ruling, though she did not say when.