New Mexico Supreme Court Confirms Localities Can't Outlaw Abortions

No big surprise here, but on 9January, as I watched all that wonderful snow float earthward, the New Mexico Supreme Court unanimously rendered a decision that’s important but also as obvious as the snow falling in the direction Newton would anticipate: that the vicious efforts by Hobbs, Clovis, Lea County, and Roosevelt County to outlaw abortions was illegal and ineffective. Despite a laundry list of goofy sounding rightwing “friends of the court,” the justices said that the ordinance, as it was intended to, conflicts with state law, and that the state statute controls. The court did not consider or decide the deeper question of the ordinance’s constitutionality, because there’s a basic procedure rule that if you don’t have to decide a constitutional question, because some other issue is sufficient to decide the case, you don’t look at or opine on the constitutional question.

The case was formally known as State ex rel. Torrez v Board of County Commissioners for Lea County, et al., Docket # S-1-SC-39742 (1/9/2025)

The ordinances, in the court’s words, “create blanket prohibitions on the mailing or receipt of any abortion-related instrumentality.” Those prohibitions, the court concluded, “plainly conflict with provisions of the Reproductive and Gender-Affirming Health Care Freedom Act (the Health Care Freedom Act or the Act), NMSA 1978, §§ 24-34-1 to -5 (2023)” and several other statutes.

Therefore the effort failed.

The court reviewed the history, starting with the 2022 US. Supreme Court decision in Hobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 360-61 (2022), overturning Roe v. Wade, 410 US. 113 (1973), and declaring the authority to regulate abortions a state issue. Today’s opinion noted the accuracy of the Hobbs dissenting justices’ prediction that Hobbs would encourage just such in-state battles as this one.

In response to Hobbs, New Mexico’s Legislature revisited the decades-old state criminal statute banning abortions unless deemed necessary to protect a woman from death or “serious and permanent bodily injury. In 2021 the Legislature repealed the old ban and its criminal penalties, removing legal bars to abortion in New Mexico. Further legislative and executive actions broadened access. Most notably, the the Health Care Freedom Act, stating New Mexico’s modern desire to protect women's’ rights to access reproductive health care in New Mexico, went into effect in June 2023.  It prohibits any public body, entity, or individual from interfering with access to reproductive or gender-affirming health care and imposes penalties for violations of the Act’s provisions. The two county commissions and the two city councils had willfully violated that law.

Thus, today's decision should come as no surprise.

However, it confirms the importance (disputed at the time) of formally rescinding the old law and enacting a fresh one, bringing a more modern and compassionate approach to the issue. 

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