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Some New Mexico lawmakers saw the writing on the wall.
An anti-abortion movement was gaining traction in state legislatures around the country, which were enacting restrictive abortion laws and appearing to be emboldened by recent confirmations of conservative justices to the U.S. Supreme Court.
Some of those justices had previously expressed reservations about the constitutionality of the Supreme Court’s 1973 ruling in Roe v. Wade, which affirmed a woman’s legal right to privacy, which in turn disallowed many state and federal restrictions on abortion.
Anti-abortion legislators and organizations have been transparent regarding their end game: The time is now ripe to challenge Roe.
New Mexico is one of a handful of states to have pre-Roe abortion restrictions embedded in its criminal code. A 1969 state law, which banned abortion except in cases of rape, birth defects and serious threats to a woman’s health, became unenforceable after it was superseded by Roe. If Roe is overturned, the state law would again be a viable part of New Mexico law.
Many legal experts believe if Roe is repealed, decisions about abortion rights issues nationwide will be returned to the individual states.
Marshall Martinez, a Planned Parenthood of New Mexico spokesman, said that could lead to the creation of “a patchwork of legislation across the country” in which people from a state with restrictive abortion laws would have to travel to another state where abortion procedures are available.
“We believe there is a real possibility that within the next two years Roe could be gutted or overturned completely, and if that happens, roughly 25 million women of reproductive age in this country will live in a state with no safe and legal access to abortion,” he said. “If we don’t get this law off the books in New Mexico, then that will include the women of our state as well.”
Some New Mexico legislators attempted to do just that in the last legislative session with House Bill 51, which sought to repeal the 1969 statutes that criminalized abortion.
The attempt fell short. While HB-51 passed in the House with a vote of 40-29, it lost in the Senate with a vote of 18-24 after eight Democrats – seven men and one woman – sided with Republicans, said Sen. Mimi Stewart, D-Albuquerque.
“We were inundated with emails and phone calls from anti-abortion organizations from out of state, and the misinformation they spread was really astounding,” she said. “They lied about what the bill did. They claimed this bill would allow third trimester abortion, but this bill had nothing to do with that. The only thing the bill did was take away old provisions in the statute that criminalized abortions for doctors and nurses.”
Ethel Maharg, executive director of the Right to Life Committee of New Mexico, said her organization opposed HB-51 because it would only serve to “maintain the status quo in New Mexico, and that means abortion, without restrictions for any reason and up to the day of delivery.”
Maharg was clear about the organization’s goal: “We want to see Roe v. Wade overturned. No abortions. No exceptions.”
But that “all or nothing approach is not a good fit for New Mexico,” said Elisa Martinez, executive director of the New Mexico Alliance for Life. “Most New Mexicans want to see some common sense protections in place for the unborn child as well as for women and minors.”
The alliance, she said, “was not lobbying to ban abortion, we were lobbying to ban late-term abortion, to restore parental rights in a minor’s abortion, and for the health and safety of women seeking abortion.”
While the organization did not support HB-51, it did endorse the alternative HB-600, the Women’s Health and Safety Act.
That bill advocated for a ban on elective, non-medically necessary abortions after five months; provided for parental notification of abortion for minors; and contained “conscience protections” for medical professionals and hospitals to opt out of participating in abortion procedures. It also had reporting requirements for abortion complications and medical emergencies related to abortion.
That bill failed to advance out of the House.
The alliance also supports nationwide efforts to challenge and repeal Roe, which “was originally litigated with inaccurate, unscientific and outdated information, especially as it pertains the viability of a child,” she said. “Most legal scholars, if they were being honest, would say this right to abortion does not exist in the Constitution.”
But Ellie Rushforth, reproductive rights counsel with the American Civil Liberties Union of New Mexico, said anti-abortion arguments are flawed on many levels.
“The idea of a constitutional right to abortion is really grounded in our liberty interests, which are explicitly discussed in the 14th Amendment, and prohibit states from depriving a person of liberty without due process of law,” she said. Consequently, “a person has the right to end a pregnancy without undue interference from the government because that right to liberty includes the right to make decisions about family and the right to bodily integrity.”
In deciding Roe, Rushforth said, “the Court built on earlier cases which held that the constitutional right to privacy extended to reproductive decision making.”
While overturning Roe is “entirely possible,” given the current complexion of the U.S. Supreme Court, “politicians and anti-abortion justices and judges don’t need to overturn Roe to do incredible damage to reproductive rights,” Rushforth said.
A patchwork of laws that could be created by individual states – with some permitting abortion services and some not – just complicates the issue of women’s reproductive health care, she said.
Such restrictions in general “impact the most vulnerable among us already,” including low-income people, people of color, young people, and people who don’t have access to consistent childcare.
“Most people who have an abortion are already parents, so we’re talking about somebody who may have to leave their state, find child care for their children, pay for gas or an airplane ticket, and pay for a hotel.”
And if they have insurance, but live in a state that bans abortion, they could be denied coverage and have to pay for the procedure out of their own pocket, she noted.
Rushforth said the 1969 New Mexico law adds insult to injury for women by requiring a woman seeking an abortion to get permission from a special hospital board “who then would decide if you get the health care that you need.”
“So a survivor of rape would have to plead her case to a committee of two licensed physicians or their appointed alternatives, who are members of the hospital’s medical staff, and then prove that she was raped and that she’s cooperating with law enforcement,” she said.
Finally, Rushforth said, the description “late-term abortion” is medically inaccurate and has no clinical meaning.
“It’s a term invented by the anti-abortion folks, to inflame, mislead and increase the stigma around abortion later in pregnancy,” she said.
Currently, in New Mexico, “we do not have these kinds of arbitrary gestational bans like we see in other state bans,” she said. “Our laws allow the medical provider to treat the patient in front of them without medically unnecessarily and arbitrary restrictions put in place by politicians with a political agenda. There are many reasons for an abortion later in a pregnancy, including fetal anomalies, maternal health endangerment, and delays in access as a result of medically unnecessary restrictions that prevent a woman from getting an abortion as soon as she decides to.”