NM Supreme Court strikes down anti-abortion ordinances adopted by local governments

SANTA FE — The New Mexico Supreme Court ruled Thursday that local governments cannot restrict abortion services, striking down ordinances adopted by Clovis, Hobbs and two eastern New Mexico counties.

The unanimous ruling came more than one year after the state’s highest court heard arguments in a case brought by Attorney General Raúl Torrez that attracted several national groups.

In their ruling, the justices said the local anti-abortion ordinances violate state law and overstep the authority local governments hold by seeking to regulate health care access.

“Our Legislature granted to counties and municipalities all powers and duties not inconsistent with the laws of New Mexico,” Justice Shannon Bacon wrote in her opinion.

“The ordinances violate this core precept and invade the Legislature’s authority to regulate access to and provision of reproductive health care,” she also wrote.

In all, at least six New Mexico jurisdictions — the cities of Clovis, Hobbs, Eunice and Edgewood and Lea and Roosevelt counties — adopted ordinances that activists called de facto abortion bans.

The lawsuit only targeted four of them, however, since Eunice and Edgewood approved their ordinances after it had been filed. Several of the ordinances restricted the operation of abortion clinics — even though most of the towns do not have any clinics — and allowed for legal action to be taken against anyone who receives medication intended to cause an abortion through the mail.

Gov. Michelle Lujan Grisham, who signed into law the bill blocking local anti-abortion ordinances, said the ruling would ensure New Mexico remains a safe haven for health care access and individual freedom.

“While some communities may disagree, our state Constitution and laws are clear,” Lujan Grisham said in a Thursday statement. “No city or county can restrict the fundamental rights of New Mexicans or override state law.”

But New Mexico Republican Party Chairwoman Amy Barela and other backers of the local ordinances criticized the Supreme Court’s ruling.

“The recent New Mexico Supreme Court decision blocking local officials from enacting pro-life laws undermines local governance and disregards the values of our communities,” said Barela, who accused Democratic state leaders of focusing more on building abortion clinics than improving access to hospitals.

Long-simmering battle over abortion

The legal showdown over abortion in New Mexico came after state lawmakers in 2021 approved a measure repealing a long-dormant state abortion ban.

The U.S. Supreme Court overturned the landmark ruling of Roe v. Wade a year later, prompting some neighboring states, including Texas, to approve near-total abortion bans.

Given the new legal landscape, an increasing number of women have traveled to New Mexico to receive abortion services.

In addition, Lujan Grisham signed measures in 2023 aimed at shielding New Mexico abortion providers from out-of-state arrest warrants and lawsuits and blocking the local anti-abortion ordinances from taking effect.

During a Thursday news conference in Albuquerque, Torrez said the Supreme Court’s ruling made it clear that abortion access is secure in New Mexico.

House Speaker Javier Martínez, D-Albuquerque, also spoke at the news conference, saying additional steps could be pursued to strengthen abortion rights during the upcoming 60-day legislative session.

“It doesn’t take a genius to understand the statutory framework that we have,” Martínez said. “Local governments don’t regulate health care in New Mexico — it is up to the state.”

What comes next?

Backers of the local ordinances claimed a federal law enacted in the 1870s, called the Comstock Act, trumps the state law prohibiting cities and counties from restricting access to reproductive health care, including abortion.

They also expressed hope the case could eventually be taken up by the U.S. Supreme Court — perhaps in conjunction with similar court cases from around the nation.

The state Supreme Court, in its ruling, made it clear it was not addressing the federal law implications, saying its decision rested solely on “state law grounds.”

However, attorneys for several of the Eastern New Mexico local governments said the ruling could still set the stage for an appeal, though they said no final decision had been made yet.

Jonathan Mitchell, an attorney representing Clovis and Hobbs, said he was “thrilled” with the ruling because it marks the first time a court has held that local ordinances requiring compliance with the Comstock Act do prohibit the shipment and receipt of abortion-related medication.

“We look forward to litigating these issues in other states and bringing the meaning of the federal Comstock Act to the Supreme Court of the United States,” Mitchell said.

Sen. David Gallegos, R-Eunice, also said he expects the ruling to be appealed to the U.S. Supreme Court, saying, “Reality will come when the federal court looks at this and makes a determination.”