On December 13th the Supreme Court had a hearing that addressed some in-effect abortion bans which were passed in defiance of New Mexico law. The lawyers who represented those cities Hobbs and Clovis (near the Texas border) as well as in Lea and Roosevelt Counties. A man who has been going around the country named Mark Lee Dickson, helped the towns and counties create a set of ordinances that create these abortion bans and he was at this hearing. The main justification they use is an 1873 federal law that banned “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance” from being mailed, including “every article or thing designed, adapted, or intended for producing abortion.” It was called the Comstock Law. This law had been rendered useless by Roe v Wade and was considered a relic but was never repealed.
First off let me say I am not a lawyer and my opinions are my own. We are incredibly lucky to live in New Mexico where the Equal Rights Amendment was adopted into our state constitution many years ago (the 1970’s). Also, the hearings of the New Mexico Supreme Court are completely transparent and anyone can log onto their website and watch, which I did. It can be found at Oral Argument: State v. Board of County Commissioners for Lea County, S-1-SC-39742.
Our state attorney general Raul Torrez believes and has said, “The (NM Supreme) Court should at least consider whether or not there is an independent state constitutional basis for announcing a basic proposition that women in this state have a constitutional right under the Equal Rights Amendment to access reproductive healthcare, as a threshold.” To me, that means that while equal rights was adopted in our state constitution, it has not been clearly defined to include and mean that women in this state have the right to access reproductive healthcare, and he wants the court to do that.
Last legislature, a law was passed, “The Reproductive and Gender Affirming Healthcare Protections Act” (also called HB-7) which is how the lawyers and judges referred to the law. The Supreme Court Judges questioned the various lawyers for the anti-abortion rules that appear to be in violation of this law. Odd and technical answers by their lawyers Jeffrey Lucky and Valerie Chacon included “this is a business ordinance” to which Supreme Court Chief Justice Shannon Zamora said the new state law applies to any conflicting law, not just business laws. When Mr. Lucky said that the ordinance does not restrict abortion “in any way” the Chief Justice Bacon pointed out that it very clearly says no business in Hobbs can operate to terminate a pregnancy. Ms. Chacon also reluctantly admitted that the city has never regulated a business license regulating the medical treatment of a man.
Supreme Court Chief Justice Shannon Bacon became increasingly involved, pronouncing “The licensure overlay here is — frankly … a ruse” and she expanded that the ordinance in Hobbs is designed to prevent any provider or clinic from offering reproductive health care unless the local government says it’s consistent with what is viewed to be a “moral doctrine.” There was some discussion of the fact that law is about legal principles, not morality. Furthermore, she told the attorneys their “ordinances violate the clearly stated principles in HB-7 not to “deny, restrict or interfere with reproductive healthcare,” which HB 7 has clearly stated you cannot do, and that you must take the law as it stands.
Attorney Lucky stepped in to insist that counties have the authority to protect the health and welfare of their residents and that these were enacted when there was a “void in the law” to which Bacon replied that he should tell his clients it’s no longer their responsibility. They have to take the law as it stands now. This lawyer appeared to preach to the court that it should wait to rule until the federal courts rule, the status of abortion pills is reviewed and not to hurry, using Roe as an example. He urged the court to dismiss the case and let lower courts hear issues first. Bacon said dismissing the case would be abdicating the justices’ responsibility to interpret the law.
Returning to Attorney General Torrez, Justice Zamora asked why they can’t just rule on House Bill 7’s preemption of the ordinances and stop short of dealing with constitutional issues further stating that the court has considered whether it is the right time to deal with constitutional questions of public concern that need to be dealt with quickly. There was discussion about the Dobbs abandonment of precedent. This was when our Attorney General made the case that, “The court should at least consider whether or not there is an independent state constitutional basis for announcing a basic proposition that women in this state have a constitutional right under the Equal Rights Amendment to access reproductive healthcare, as a threshold.” In a similar case, he reported that last year the justices considered whether a previously articulated right to access public streams and rivers meant people could walk on streambeds and that “If the court is willing to take constitutional rights that had been previously developed but not fully fleshed out, respectfully, this is a right that is due equal consideration.”
There were other supportive arguments presented by Rebekah Anne Gallegos for the American College of Obstetricians and Gynecologists, Bold Futures NM and Planned Parenthood of the Rocky Mountains that addressed what they see as new questions such as the right to choose that seems implied in the Constitution and they respectfully requested the justices to do so and that “now seems like a good time to explicitly say that.”
The Chief Justice asked her how the issue would come back if they only rule on the new state law but not the right to abortion, to which Ms. Gallegos replied her “clients want them to consider the constitutional question because preemption only deals with attacks on reproductive rights by local governments, while the constitutional question would prevent those attacks from all levels of state government”.
The hearing came quickly to an end. My general impression was that at the very least these anti-abortion ordinances will be ruled illegal. It is very interesting, emotionally charged and surprisingly understandable. I urge you to look and listen to it for yourselves at the You Tube channel for New Mexico Supreme Court.