New Mexico’s Supreme Court justices seemed convinced on Wednesday that a state law takes reproductive health care policymaking authority away from local governments, and questioned Attorney General Raúl Torrez about why they should go a step further and create a state constitutional right to terminate a pregnancy.
The oral arguments before the state’s high court centered around the anti-abortion ordinances recently passed by several communities in New Mexico and whether or not they violate another recently passed state law.
Jeffrey Thomas Lucky argued for Lea County, and Valerie S. Chacon argued for the city of Hobbs, two local governments that passed the anti-abortion ordinances in 2022.
The Comstock Act, a federal law passed in 1873, doesn’t allow local governments or private citizens to enforce federal law, Lucky conceded in questioning from state Supreme Court Justice Briana Zamora.
Chacon said the ordinance in Hobbs doesn’t violate House Bill 7, a state law passed this year, because it’s a business ordinance. Zamora said the new state law applies to any conflicting law, not just business laws.
Chacon said the local ordinance does not restrict abortion “in any way.” But the ordinance very clearly says no business in Hobbs can operate to terminate a pregnancy, state Supreme Court Chief Justice Shannon Bacon said.
In response to questions from Justice David Thomson, Chacon said Hobbs has to apply business licenses equally, and the city has never regulated through a business license the medical treatment of a man.
“The licensure overlay here is — frankly, the argument is a ruse,” Bacon said.
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,” she said.
“It by definition is interference,” Bacon said. “You can call it a business license all day long, but it’s interfering with what HB 7 is expressly saying you cannot do.”
Lucky said state law gives New Mexico counties the authority to “protect the health and welfare and the benefit” of their residents, and the local governments enacted the ordinances “when it was a void in the law.”
But there isn’t a void anymore, Bacon said. House Bill 7 tells Lucky’s clients and others that it’s no longer in their purview. The justices must take the law as it stands today, she said.
Anti-abortion ordinances tested today at N.M. Supreme Court
Lucky said it’s impossible to know the state law’s precise effect on the ordinances until federal courts rule on the abortion pills’ legality and the Comstock Act’s meaning after Dobbs.
Before the hearing, the federal Supreme Court decided to take on a case from Texas that will directly address the legal restrictions challenged on abortion pills.
“If Roe teaches us anything, let’s not hurry on issues of primary political importance,” Lucky said.
Instead, he said the court should dismiss the case and allow a lower court to hear the ordinances first “so the issues are fully developed” when the justices decide. Bacon said dismissing the case would be abdicating the justices’ responsibility to interpret the law.
Why should the court create a state constitutional right?
Zamora asked Torrez why the justices can’t just rule on House Bill 7’s preemption of the ordinances, and stop short of constitutional issues. 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, Torrez said in response.
He said the U.S. Supreme Court’s decision in Dobbs abandoned 50 years of precedent women relied on and created “a great deal of uncertainty.”
“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,” Torrez said.
Torrez said in a case last year about a previously articulated constitutional right to access public streams and rivers, the justices considered whether that meant people can walk on streambeds.
“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,” he said.
Rebekah Anne Gallegos argued for the American College of Obstetricians and Gynecologists, Bold Futures NM and Planned Parenthood of the Rocky Mountains, all in support of the attorney general.
She replied with Roe no longer law, Torrez’s case presents the justices with new questions.
The right to choose whether to end a pregnancy is so important that it can be found in multiple parts of the state constitution, she said, “and now seems like a good time to explicitly say that.”
Chief Justice Bacon asked how the issue could come back to the court in the future if the justices only rule on the new state law and do not find a state constitutional right to abortion.
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.
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