Repeal of New Mexico abortion ban challenged in court

Jul. 8—A Republican state lawmaker, a Roswell oil producer and other New Mexico residents have filed a court challenge to last year's repeal of a 1969 law that made it a crime to perform an abortion in the state.

Since the Legislature didn't enact a set of statutes to replace the decades-old abortion ban after the repeal, Sen. David Gallegos of Eunice and other plaintiffs argue in their recent lawsuit question whether the law reverts to an earlier statute that outlawed abortion altogether.

Their petition seeks a declaratory judgment of whether or not legislation has been enacted "legalizing abortion procedures in the state of New Mexico."

"Simply stated, no law, act or statute exists that allows for or legalizes abortion procedures in the state of New Mexico," says the petition, filed in the 5th Judicial District in conservative-leaning Chaves County.

State Sen. Linda Lopez, an Albuquerque Democrat who co-sponsored the abortion ban repeal, insisted in a statement this week "the right to an abortion is legal and protected in" New Mexico.

"Those in need have the right to make their own choices about pregnancy and reproductive health," she said.

The new lawsuit comes in the wake of the U.S. Supreme Court overturning the 1973 ruling in Roe v. Wade that established abortion rights in the country, and news that abortion providers in some states that prohibit abortion are moving their practices to New Mexico.

According to the Center for Reproductive Rights, a global legal advocacy organization that seeks to advance reproductive rights, New Mexico courts haven't determined whether the state constitution protects the right to abortion.

"While the New Mexico Constitution contains an equal rights amendment (ERA), the state Supreme Court has not ruled that the state Constitution or the ERA protects the right to abortion," the center says on its website.

The center says New Mexico only prohibits the so-called D&X surgical procedure, in which an intact fetus is removed from the uterus in the second or third trimester of a pregnancy. Dubbed "partial-birth" abortion by opponents, intact dilation and extraction is performed for the purpose of abortion as well as after a miscarriage; it is legal in New Mexico if it is performed due to a doctor's determination it is necessary to prevent death or harm to a woman.

Larry Marker, a Roswell-based independent oil and gas producer who also signed on as a plaintiff in the case, said he wants a court to clarify New Mexico's abortion laws. Marker said he tried unsuccessfully to initiate a referendum to allow voters to decide "when does a baby have rights equal to the mother's."

"Now we've got people coming from Arizona and Texas to have abortions on demand from Day One to the day the baby could be born," he said.

Gallegos, who voted against last year's repeal of the abortion ban, said he, too, is seeking clarity from a court.

"Because we had statute in place and we removed it but didn't replace it with anything, we're checking to see if it would revert back to the '63 statute, and that was that abortion was totally outlawed," he said. "So, what we're wanting is to get the courts to look at that, to review it, to see if the Legislature did it right in the actual removal and not replacing it because we never put anything back in place."

Kayla Herring, political director for Planned Parenthood of the Rocky Mountains, called the petition "nothing more than a political stunt from anti-abortion extremists to drum up support" before the midterm election.

"They know very well that our state will continue to stand up for New Mexico values and protect abortion access for our families," she said.

The petition names Gov. Michelle Lujan Grisham and Attorney General Hector Balderas as the defendants.

"During this time of uncertainty, we will continue to protect women and families, and uphold the rule of law to ensure justice in New Mexico," the Attorney General's Office said in a statement.

Nora Meyers Sackett, the governor's press secretary, said the law allows abortion in New Mexico.

"The enactment of Senate Bill 10 in 2021 formally removed abortion as a criminal offense in the state of New Mexico — there is no requirement for every legal act in New Mexico to be codified as statute, and any competent attorney will tell you as much," she wrote in an email. "There is no statutory ambiguity as to the legality of reproductive health care services and the work of health care providers in New Mexico."

In response to the petition, House Speaker Brian Egolf, D-Santa Fe, accused New Mexico's "wildly out of touch Republicans" of wanting "to follow the callous example set by states like Ohio, who have curtailed women's rights and criminalized access to health care."

"These bans are already having horrific consequences in other states, where even children are being forced to carry dangerous pregnancies to term," Egolf said in a statement. "Fortunately, our state leadership stands with the people of New Mexico and their rights to access the care they need and to make their own decisions about if, when, and how to start a family."

Follow Daniel J. Chacón on Twitter @danieljchacon.