(CN) — The New Mexico Supreme Court is likely to strike down local abortion bans in Republican-ruled pockets of the state after an hourlong hearing Wednesday morning.
State Attorney General Raul Torrez petitioned the Supreme Court after four local jurisdictions — Lea County and Roosevelt County, along with the cities of Hobbs and Clovis — passed local ordinances banning the use of U.S. mail or other carrier services to distribute medications and medical equipment used in abortions. The new ordinances quickly followed the Supreme Court's 2022 ruling in Dobbs v. Jackson Women's Health Organization, which removed the federal constitutional right to abortion enshrined decades earlier in Roe v. Wade.
Torrez and other abortion rights advocates say that the local ordinances fly in the face of the state’s Reproductive and Gender Affirming Health Care Act, referred to as House Bill 7, which was signed into law in March.
That law specifically preempts local governments or agencies from interfering with a person’s access to abortion services or from creating any local rule that violates HB7.
Considering such ordinances on Wednesday, the justices seemed to agree with Torrez.
“We can’t disregard the legislature’s actions post hoc,” said Chief Justice C. Shannon Bacon.
Valerie Chacon, representing the city of Hobbs, told the court that the ordinances have been misrepresented as regulating health care services when in fact they regulate business.
Bacon, appointed by former Democratic Governor Michelle Grisham, didn’t buy it — calling Chacon’s argument a “ruse.”
“By definition, it’s interference,” she said.
“But we’re addressing the business aspect of it, not the medical procedure,” Chacon insisted. “We’re not trying to ban abortion clinics.”
Bacon remained unconvinced.
“You’re trying to ban their equipment and medication,” she replied. “You’re allowing them to open a four-walled building and do nothing.”
Each local government justified their ordinances by quoting the Comstock Act, which in 1873 made it illegal to use the mail to distribute abortion medication along with various other “obscene or immoral” items, like pornography and sex toys.
The law isn’t enforced today in the same way it was in 1873 — though Congress never repealed it. The local governments involved in this case claim that by simply regulating businesses in step with existing federal law, they aren’t interfering directly with health care services, nor are they violating state law.
Torrez said that application is a misunderstanding of how federal- and state-level powers interact.
Even though federal law supersedes state and local law, local governments don’t have the authority to enforce federal laws if they conflict with state laws. Only the federal government can do so.
He compared the legal issue to marijuana. Federal law still prohibits the sale of marijuana, but a local government can’t undermine the New Mexico Legislature’s intent to legalize the substance in the state.
Torrez said the preemption created by HB7 alone is enough to strike down the ordinances — though the court could also decide that New Mexicans have a constitutional right to abortion. The justices seemed less likely to explore than option.
Jeff Lurky, representing Lea County, asked the justices to dismiss the petition and allow HB7 to be litigated in trial court. He said the law stopped short of making clear exactly what is and isn’t illegal in terms of local regulations. He argued a trial would help uncover facts to support the local governments’ argument.
Bacon said a trial wouldn't help, as the questions at hand are legal, not fact-based.
Justice David Thompson, also appointed by Grisham, asked Chacon if the city of Hobbs has ever passed a business ordinance that restricts medical procedures for males.
Chacon said no.
Torrez reiterated this point in his rebuttal, saying it highlights an “underlying history of discrimination” against women in health care.
The cases arises as two other western states also grapple with abortion access in their high courts. The Arizona Supreme Court heard arguments Tuesday as to whether conflicting state laws allow physicians to perform abortions in the first 15 weeks of pregnancy. Meanwhile, in Wyoming, the Supreme Court considered Tuesday whether to allow Republican lawmakers and an anti-abortion group to intervene in a case to decide whether abortion qualifies as health care.
Follow @JournalistJoeAZ
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
