Supreme court’s reception to anti-abortion counties 'chilling'

The reception conservative New Mexico communities received in the state’s Supreme Court chambers Wednesday was a chill one.

Attorneys representing eastern New Mexico counties and communities in the lawsuit filed by New Mexico Attorney General Raul Torrez were hardly given the opportunity to finish their sentences when grilled by the five justices, who saw little relevance in the case beyond the fact this year’s House Bill 7 supersedes any ordinances local or county governments could enact.

“For anyone watching or tuning in, it was difficult to learn because of the justices’ frequent interruptions,” said State Senator David Gallegos, R-Eunice, who sat through some of the hearing via the live video feed. “At times, the personal ideologies of some of the justices were evident and they even coached the attorney general and pro-abortion counsel.”

The AG's office filed an emergency petition in March of this year, asserting these local ordinances violate the state constitution on grounds of both individual liberties and local government overreach.

Counsel for the counties and cities seemed unable to make their case Wednesday, seemingly arguing that HB 7 is an incomplete law requiring legal investigation, and their clients were simply attempting to ensure providers of abortion services comply with all federal regulations — including the Comstock Act, which prohibits the shipment of abortion materials by mail or common carrier.

Complying with that act would, essentially, prevent abortion clinics from locating in those areas of New Mexico with ordinances requiring clinics to adhere to federal law.

Lea County’s attorney, Jeff Lucky, attempted to argue the ongoing litigation in the Comstock Act case as well as what he called an “incomplete” HB 7 should justify throwing out the AG’s case until the legal issues are more fully explored.

“Our position is, with the Comstock Act uncertainty, and HB 7 has never been litigated…,” Lucky began before being cut off.

The justices were hearing none of it.

“Why would Comstock in any way limit the power of the state?” Justice David Thomson asked.

“If Roe teaches us anything it’s, let’s not hurry. Let’s dismiss this case,” Lucky said in his conclusion.

The nation’s Supreme Court said Wednesday it will consider whether to restrict access to a widely used abortion drug — even in states where the procedure is still allowed.

The case concerns the drug mifepristone that — when coupled with another drug — is one of the most common abortion methods in the country. The case could be decided by July.

Whatever federal law prohibits, the state’s supreme courts justices essentially argued in conjunction with the attorney general there is no authority for communities to enforce those laws — and beyond that, New Mexico’s House Bill 7 trumps federal law.

“They have no authority to make an argument of the Comstock act,” Torrez said. “They are creations of the state and only exercise authority conferred upon them.”

“The Comstock Act, nowhere, gives local governments the authority to enforce it,” said Justice Briana Zamora.

Torrez’s main push, however, was for the justices to delve into the constitutional issue, saying every woman in the state has a constitutional right to access "reproductive healthcare" and adding he believes attempts to circumvent that will continue without a constitutional ruling.

“Taking up the constitutional dimensions in this … affords (women) a greater level of constitutional protection,” he said. “If you don’t do that at this moment, and wait for the parade of horribles, this will not stop.”

The justices, however, seemed reluctant to take up the constitutional issue — Zamora saying the court doesn’t often delve into constitutional issues, and should generally avoid them to focus on law.

“HB 7 is your strongest argument here,” she told Torrez during his oral arguments.

“This is not about the constitutional right to abortion, whether the state provides it,” Justice Michael Vigil told Torrez during his arguments. “The briefing on that is less than persuasive. The stronger argument you have is whether or not these violation Article 10 Section 6. You can argue what you want, but that is the strongest argument you have.”

Repeatedly the justices pointed to the case being judged on the validity of local governments’ power versus the law of the state.

“HB 7 tells your client, and others, this is no longer in your purview,” Vigil told Lucky during his comments. “We can’t disregard the legislature’s actions post hoc.”

Valerie Chacon, attorney for the City of Hobbs, attempted to argue the city’s ordinance does not block abortion clinics or women seeking reproductive health care, but ensures any entity providing those services complies with all federal laws.

“Our ordinance is not in violation of HB 7,” Chacon said, “because our ordinances are business ordinances. Communities have an inherent right to regulate business.”

“Your argument is a ruse,” said Chief Justice C. Shannon Bacon. “Your ordinance is designed to prevent any provider from offering reproductive healthcare unless your client gives them permission. The ordinance says you cannot operate a business that offers termination of a pregnancy.”

Bacon further added such ordinances have a broader impact on the state as a whole.

“These ordinances have a chilling effect on people in the state seeking the health care they need and these entities locating in Lea County,” Bacon said.

It was a sentiment echoed in a statement released after Wednesday’s hearing by representatives of Planned Parenthood, who called the forthcoming decision by the court a “landmark moment.”

“These local bans are part of a broader, coordinated attack on abortion care across the state and across the country,” said Kayla Herring, regional director of Public Affairs for Planned Parenthood of the Rocky Mountains. “When a patient isn’t able to access the health care they need in a timely manner, it can impact the course of a family for generations to come.”

Chacon argued abortion services are not within the medical standard of care set by the federal government, but Bacon contended it doesn’t matter — HB 7 is the law of land in New Mexico.

“We are not plowing any new ground and we view HB7 as preempting local ordinances,” Bacon said.

Gallegos, who has been working extensively with Texas counties bordering New Mexico to enact ordinances making the transportation of individuals through those counties to access abortion care in New Mexico a crime, said he was not surprised by Wednesday’s proceedings.

“My expectation is that the New Mexico Supreme Court will do exactly what the governor decides for them,” he said. “That is the reality of our socialist country of New Mexico.”

According to one news source this week, the number of abortions performed in New Mexico has more than tripled since the U.S. Supreme Court overturned Roe v. Wade in 2022, and has climbed 279 percent since 2020. However, no data was provided on the actual rate of abortions.

According to the Guttmacher Institute, from a June 2022 report on New Mexico, 4,620 abortions were provided in New Mexico in 2017.

According to the Centers for Disease Control, 3,942 people received an abortion in New Mexico in 2019, but that was also prior to Gov. Michelle Lujan Grisham and the Legislature repealing New Mexico's abortion ban in 2021.

The most recent CDC data on abortion rates in New Mexico comes from 2021 when 4,891 abortion operations were reported in the state. The 2021 data was last reviewed in November of this year.

Levi Hill's email is managingeditor@hobbsnews.com.

This article originally appeared on Las Cruces Sun-News: Supreme court’s reception to anti-abortion counties 'chilling'