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Changing court, Legislature set stage for NM abortion clash

Copyright © 2020 Albuquerque Journal

SANTA FE – New Mexico’s criminal abortion law is one of just a few of its kind in the country.

But debate over whether to repeal the 1969 statute is expected to intensify at the Roundhouse in coming months, after the death of U.S. Supreme Court Justice Ruth Bader Ginsburg and a legislative shake-up cemented by the general election.

A push to remove the law from New Mexico’s books passed the House in 2019 but fell three votes short in the Senate.

Since then, five of the eight Senate Democrats who crossed party lines to vote against the bill lost their reelection bids in the June 2 primary. A sixth Democratic senator, Carlos Cisneros, died and has since been replaced.

The final composition of the Legislature, of course, won’t be set until the Nov. 3 election. Every legislative seat in both chambers is on the ballot.

The makeup of the Supreme Court could also change in the coming months if the U.S. Senate confirms an appointee by Republican President Donald Trump.

Against that backdrop, Democratic Rep. Joanne Ferrary of Las Cruces and Sen. Linda Lopez of Albuquerque said Wednesday that they expect to push again next year to repeal New Mexico’s anti-abortion law.

“Now more than ever,” Ferrary said in an interview, “we need to make sure we can provide this health care not only for New Mexico women, but across the country.”

State Rep. David Gallegos, a Eunice Republican who is running unopposed for the Senate, said he hopes the general election adds some balance to the Legislature, where Democrats hold majorities exceeding 60% in each chamber. Regardless, he said, he and others are prepared to defend New Mexico’s abortion law.

“To me, it just comes down to being principled,” Gallegos said. “In all reality, we seem to focus more on the value of a minimum wage increase than we do the value of life.”

Roe v. Wade

The state law at issue makes it a crime for an abortion provider to end a woman’s pregnancy, except in certain circumstances, such as rape or grave threats to the woman’s health. The procedure, under the law, is also limited to hospitals and must be approved in writing by a hospital board.

The statute, however, is largely unenforceable because the U.S. Supreme Court’s Roe v. Wade decision established a nationwide right to abortion in 1973.

Ellie Rushforth, reproductive rights counsel at the American Civil Liberties Union of New Mexico, said she believes the state law also violates the New Mexico Constitution, which guarantees equal legal rights regardless of sex.

But that wouldn’t necessarily stop an anti-abortion prosecutor from pursuing charges, she said, especially if the Supreme Court alters the legal landscape.

“Having this old abortion ban lingering on our books,” Rushforth said, “could very well come back to haunt us. … We cannot afford to risk abortion access even for one day.”

Seven other states, she said, have an abortion law like New Mexico’s on the books. Repealing it, Rushforth said, wouldn’t affect the comprehensive regulations that already govern abortion and other health care procedures.

Elisa Martinez, founder and executive director of New Mexico Alliance for Life, said the Supreme Court vacancy “has tremendous implications for the nation and for our state. … The right to abortion is nowhere in the Constitution.”

New Mexico, she said, has so few other abortion laws that it’s a destination for women seeking late-term abortions.

The Nov. 3 election provides an opportunity, Martinez said, to elect legislators who want “to see common-sense protections put in place for both the woman and the child.”

She added: “It’s an important discussion that we need to have as a state – that people want to have.”

Governor’s priority

Gov. Michelle Lujan Grisham, a Democrat and former state health secretary, has made repealing the abortion law a priority since her 2018 election.

“Restricting access to health care would have drastic negative impacts – particularly for low income people, for communities of color and those who live in rural communities,” she said in a written statement Wednesday. “The possibility of the Supreme Court at some point in the future ruling against reproductive rights only underscores the importance of removing New Mexico’s outdated and discriminatory statutory language.”

Sen. Lopez – like Ferrary, a co-sponsor of the 2019 attempt to repeal the abortion law – said she expects a more favorable outcome for the bill next year.

Lopez said she will make clear that the legislation is focused only on removing the potential for prosecution of a health care provider, not an attempt to tackle other issues related to abortion.

“It’s simple and straightforward,” she said.

In 2019, the legislation, House Bill 51, passed the House 40-29 but was defeated 24-18 in the Senate.

Lt. Gov. Howie Morales, a Democrat who serves as president of the Senate, said he was ready to break a tie and cast the deciding vote to support the bill if it came to that. He called it an outdated and archaic law.

At least six of the eight Democrats who crossed party lines won’t be part of the Senate next year. But whether they are replaced by lawmakers who support the bill won’t be decided until Nov. 3.

Gallegos, the Republican representative who is set to join the Senate, said it’s a concern that Democratic voters “got rid of those moderates” but that he and others will be prepared to make their case regardless of how the general election turns out.

“I can’t see that they can be any more rabid than they have been in the last few years anyway,” Gallegos said.


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