The legal battle over New Mexico’s abortion landscape took a new twist Monday, as a small southeastern New Mexico city filed a lawsuit challenging top state Democrats’ efforts to block local anti-abortion ordinances from being enforced.
Specifically, the lawsuit filed by the city of Eunice against Gov. Michelle Lujan Grisham and Attorney General Raúl Torrez claims a federal law enacted in the 1870s trumps a new state law — set to take effect in June — that aims to prohibit jurisdictions from restricting access to reproductive health care, including abortion.
The lawsuit was filed Monday in state district court in Lea County, but local officials and anti-abortion advocates held a news conference in Washington, D.C. to announce its filing.
Sen. David Gallegos, R-Eunice, who attended the news conference, said the event was held in Washington, D.C. in large part because supporters of the suit anticipate it could eventually be taken up by the U.S. Supreme Court — perhaps in conjunction with similar court cases from around the nation.
“We’re hoping this will help fuel the fire to get this resolved,” Gallegos told the Journal.
The new lawsuit comes after Torrez, a former Bernalillo County prosecutor who took office in January, launched a legal effort of his own to bar anti-abortion ordinances passed in several eastern New Mexico cities and counties.
It also comes just a month or so after Lujan Grisham signed off on the second of two abortion-related measures approved by lawmakers during this year’s 60-day session.
One of those new laws bans New Mexico cities, counties and other government bodies from restricting access to abortions or gender-affirming health care, while the other seeks to shield doctors and nurses who perform such procedures from legal liability.
During a bill-signing ceremony this month for one of the new abortion laws, Lujan Grisham expressed optimism the measures would be upheld if targeted in court.
“We feel very confident the bills we’ve signed into law will withstand any legal challenges in the state,” Lujan Grisham said at the time.
While New Mexico does not currently have any statewide restrictions on abortion, the new bills have not stopped local-level attempts to limit access to abortion.
More than 300 miles away from Eunice, the city of Edgewood is considering passing its own ordinance expressing support for the federal Comstock Act.
The Comstock Act, passed in 1873, prohibits sending “obscene material” through the mail — specifically anything that is “designed, adapted, or intended for producing abortion.”
In December, the Department of Justice issued an opinion for the U.S. Postal service stating that the law does not prohibit sending medication intended to induce an abortion through the mail as long as the sender is not intending that it will be used unlawfully.
But a Texas judge this month said he would suspend a federal government agency’s approval of a medication abortion pill called mifepristone, in a ruling that is now being considered by the U.S. Supreme Court.
AG files suit
New Mexico ordinances that supporters have called “de facto abortion bans” are already the subject of a lawsuit — this one filed by Torrez.
In January, Torrez filed an emergency petition asking the state Supreme Court to block ordinances that were passed in Lea and Roosevelt Counties and the cities of Clovis and Hobbs. Eunice, a 3,000-person city on the Texas border, was not included in the suit because it passed it’s ordinance on the same day that the Torrez filed his petition.
In late March, the Supreme Court issued an opinion temporarily blocking the enforcement of the ordinances while it considers the issue. The court also asked the parties to file responses specifically addressing the implications of House Bill 7. Those are due Thursday.
AG’s office spokeswoman Lauren Rodriguez said the Supreme Court order only applies to the four jurisdictions that were named in the petition.
So while it does not apply to Eunice, Rodriguez said in a statement that the AG “is prepared to take formal legal action to prevent any jurisdiction from adopting similar ordinances once the outstanding legal questions have been resolved by the New Mexico Supreme Court.”
She also said the state’s top prosecutor is prepared to defend the new state law once it takes effect June 16, while adding a state Supreme Court ruling on the issue could provide much-needed guidance.
As for the suit Eunice filed against the AG, Rodriguez pointed out that it was written by the same “Texas lawyer” involved in the other ordinances and it raises the same arguments in support of them.
“As a result, the Supreme Court is better situated to address these issues in the first instance, and the Attorney General’s Office will be seeking a stay of the district court action and will continue to fight to protect reproductive freedom in New Mexico,” she said.
Backers’ viewpoint
Backers of the local anti-abortion ordinances have a quite different legal view.
Albuquerque attorney Michael Seibel, who is representing Eunice along with Tommy Parker from Hobbs and Jonathan Mitchell from Texas, said they are essentially arguing the Comstock Laws are the “supreme laws of the land” and preempt any state laws.
The suit also asks the judge to declare that federal law outlaw all “shipment and receipt of abortion pills and abortion-related paraphernalia throughout the United States,” regardless of whether a customer could legally use them where they reside.
During Monday’s news conference, Eunice Mayor Billy Hobbs said that city councilors voted unanimously to file the lawsuit, even though its abortion ordinance was not among those targeted by the Attorney General’s office.
In addition, city councilwoman Erica Jones said abortion rights advocates who were considering building a new clinic in Eunice were dissuaded by the pervasive opposition to abortion in the community.
“What New Mexicans need is not more abortion clinics, but more hospitals and a better infrastructure for our health care needs,” Jones said.
Commissioners to vote
Edgewood, a town of about 6,000 in the far southwestern corner of Santa Fe County, is poised to vote on its own ordinance regarding operations by abortion providers soon.
The town will hold a public hearing on April 25.
The ordinance allows anyone to sue another person, with some exceptions, who violates the Comstock Act by using the mail to receive anything used in abortion care — including equipment and medication. It allows statutory damages not less than $100,000 as well as costs and attorney’s fees.
Commissioner Sterling Donner, who introduced the ordinance, said that he did so because he was hearing from his constituents — through calls, emails, and conversations about town — that it was something they wanted him to do.
“They saw what was going on in other states and other municipalities and they asked for something similar,” Donner said.
He said he didn’t think that House Bill 7 should affect the town.
“It’s not banning abortions in the town at all,” Donner said. “This is just following federal statutes on the equipment and medications coming in…. It can’t come from out of state.”
Mayor Audrey Jaramillo said she is “pro-life” but still “absorbing information and opinions” before deciding which way she will vote.
“I am evaluating many principles and issues such as public service and input, morality, legalities, and options,” she said in an emailed statement.
