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Copyright © 2016 Albuquerque Journal
To some, New Mexico is a Wild West haven for abortions. For others, the state is a refuge from a wave of legal assaults nationwide on a woman’s right to choose.
Abortions among New Mexico residents, especially women ages 19 and younger, are down dramatically since 2010, but the number of out-of-state women coming here for abortions has doubled in the past three years, according to newly compiled state data.
Nearly 20 percent of the roughly 4,500 abortions performed in New Mexico in 2014 involved women from out of state, according to state Department of Health data.
New Mexico, which hasn’t passed an abortion law in 16 years, is among the states with the fewest abortion restrictions and one of seven that permit abortions at any stage in a pregnancy, according to the Guttmacher Institute, a nonprofit research group that works to advance reproductive health, and published reports.
By January 2014, at least half of the 50 states had imposed regulations on abortion clinics, mandated counseling designed to dissuade a woman from obtaining an abortion, required a waiting period before an abortion, required parental involvement before a minor obtains an abortion or prohibited the use of state Medicaid funds to pay for medically necessary abortions, according to Guttmacher.
Neighboring Texas, Arizona and Oklahoma each adopted 10 or more abortion restrictions from 2011 to 2015.
A leading national anti-abortion group, Americans United For Life, ranked New Mexico as the 10th-worst state in its 2015 “Life List,” contending that New Mexico “does not adequately protect the health and safety of women seeking abortions.”
But New Mexico supporters of a woman’s right to choose abortion say additional restrictions are a slippery slope and a means to prevent reproductive health care.
A survey last year by The Associated Press found that states with few restrictions, including New Mexico, had some of the biggest decreases in the number of abortions. In New Mexico, abortions have fallen by 24 percent since 2010.
Over the past decade, the number of abortions peaked at 6,386 before dropping every year to 4,503 in 2014 – the most recent year for which state data are available. Abortions among New Mexico residents ages 19 and younger have declined by 66 percent since 2000, from 1,269 to 435 in 2014.
New Mexico has one of the nation’s few providers offering late-term abortions. But, according to the state DOH, state residents had only four abortions at 28 weeks or later in 2014. That number dropped to two last year, according to the latest data.
The number of late-term abortions performed on out-of-state residents in New Mexico isn’t tracked by the DOH or the federal Centers for Disease Control and Prevention.
Of New Mexico’s five abortion clinics, only Albuquerque’s Southwest Women’s Options offers abortions up to 28 weeks and on a case-by-case basis after that if fetal anomalies are discovered or a mother’s health is in jeopardy, according to its website.
A Texas-based abortion clinic opened in Las Cruces in 2014 after Texas lawmakers enacted a law that has resulted in the closure of at least half of the state’s 41 abortion clinics.
That law, which requires that abortion clinics meet higher surgical center standards and requires providers to be affiliated with nearby hospitals, is on appeal to the U.S. Supreme Court.
In oral arguments in the case in early March, Supreme Court Justice Ruth Bader Ginsburg raised questions about Texas women having to travel to New Mexico for abortions because of the tougher restrictions. A ruling in the Texas case, expected in June, could affect similar laws in nine other states.
New Mexico’s restrictions on abortions require that physicians perform the procedure. And, in 2000, then-Gov. Gary Johnson signed into law a ban on so-called partial-birth abortions, the first restriction on an abortion procedure in New Mexico in more than 25 years.
But abortion opponents say the law had little impact because it pertained only to cases in which a fetus had attained viability, which is defined as being able to live outside the womb. Most medical experts agree that the age of viability is 24 weeks.
Before the U.S. Supreme Court legalized abortion in the Roe v. Wade ruling in 1973, New Mexico relied on a 1969 criminal abortion law permitting only “medically justified” abortions. That same law included a parental consent requirement for girls under 18.
In 1990, the state Attorney General’s Office concluded that the consent provision was unconstitutional and unenforceable under federal case law.
Elisa Martinez, executive director of the New Mexico Alliance for Life, said New Mexico’s failure to pass a law like the one being challenged in Texas “leaves women vulnerable to the lack of safety and regulation of these clinics.” She said late-term abortions further increase the health risk to women.
Pamelya P. Herndon, executive director of the Southwest Women’s Law Center in Albuquerque, takes a different view.
“That’s the new terminology that some states are picking up and some legislators I think in our state are trying to pick up to make it appear that there is some great concern (about women who have abortions),” Herndon said. “It’s just another way to prevent the reproductive health care of women.”
Dauneen Dolce, executive director of the Right to Life Committee of New Mexico, said national research has shown that the most effective abortion laws aren’t “the big ones,” such as late-term abortion bans.
More effective, she said, are parental consent and notification laws, and so-called informed consent laws that require physicians to provide information on the fetus and alternatives to abortion to pregnant women contemplating abortion.
“Neither would stop an abortion, but those two laws combined in the states have reduced more abortions than anything,” Dolce said.
Such measures have been challenged as unconstitutional in some states, although the U.S. Supreme Court hasn’t ruled on the appeals.
Dolce said New Mexico has made progress since Republicans took control of the New Mexico House of Representatives in 2014. Proposed late-term abortion bans introduced in the past two legislative sessions were both defeated in the Democratic-controlled Senate.
Dolce said such measures would have won passage had they been put to the full Senate for a vote, instead of dying in committee.
Yet, at the local level, Albuquerque voters in 2013 rejected 55 percent to 45 percent a ban on late-term abortions.
The election of Republican Gov. Susana Martinez in 2010 emboldened abortion opponents, said state Sen. Jerry Ortiz y Pino, D-Albuquerque. Martinez has described herself as “pro-life.”
“Since then, it’s become a real battleground issue. Usually, the issues they bring up are late-term abortions and parental notification,” Ortiz y Pino said. “But the more we look at each of them, the more we realize they’re just an attempt to get the ball rolling down a slippery slope. When we look at the implications, it’s just too frightening.”
Abortion rights advocates say restrictions on abortion might not survive a legal challenge in New Mexico, even if approved by the Legislature.
That’s because New Mexico added the Equal Rights Amendment to its state constitution in 1973, even though not enough states ratified the amendment for its inclusion into the U.S. Constitution.
The national Center for Reproductive Rights argues that New Mexico’s Constitution “protects the right to abortion more strongly than the U.S. Constitution.”
Abortion opponents, such as Americans United for Life, agree, noting that a 1999 opinion by the New Mexico Supreme Court cited the ERA in a ruling that struck down state Human Services Department restrictions on Medicaid-funded abortions.
The court, in its ruling, found no “compelling justification for treating men and women differently with respect to their medical needs in this instance.”
Dolce, who has been lobbying for abortion restrictions for decades, says New Mexico legislative elections this fall could “make a difference in what we’re doing.”
“We know we are getting closer,” she said. “Every year, the people of this country are getting more pro-life, which includes New Mexico. So, somewhere, the Democrats have to see they’re out of step with their own constituents.”
Herndon said, however, that women in New Mexico need to ensure their reproductive health rights are protected by those they elect in November.
“I believe in women,” she said, “and they’re not going to let that (new abortions laws) happen. Even if the Legislature changes this, there’s always the courts and I still have faith in the courts doing the right thing.”