Top officials challenge local abortion ordinances — but could the strategy backfire?
Last June, after the Supreme Court overturned Roe v. Wade, Whole Woman's Health closed four clinics in Texas and started fundraising to move their operations to New Mexico, where the procedure remains legal.
They looked at opening in cities close to the Texas border, like Clovis and Hobbs.
But much of the east of the state is conservative, and by November, commissioners in Hobbs had proposed an ordinance strictly limiting access to abortion and were hearing public comment.
In a recording of a November 7 meeting, resident Henry DeLara can be seen stepping up.
"We here in New Mexico happen to be a very abortion-friendly state," he said. "But right here in Hobbs today, this night, we can push back. We can make a statement that: No! Not here in this county, not here in this city and eventually not here in this state."
After several people spoke, mainly in support of the bill, Mayor Sam Cobb moved to pass the new rule.
"In my mind, this community is overwhelmingly in support of the passage of this ordinance," he said. It passed unanimously, 7-0, and attendees erupted in applause.
Before long other places followed: Lea County, Clovis, Roosevelt County, Eunice.
Now, Democratic lawmakers and the Attorney General are pushing back against the insubordinate local authorities, finding themselves at the center of a legal debate that some think could form the next frontline in the struggle over abortion rights, with the potential even to rise to the US Supreme Court.
"It's funny when I look back on it, and it's sort of like, man, it all happened really quickly," said Laura Wight, co-founder of Eastern New Mexico Rising, which organizes in support of abortion access.
A librarian at Eastern New Mexico University in Clovis, she noticed anti-abortion campaigners from Texas were coming to town toward the end of last summer , organizing prayer rallies at churches.
Then she said her group realized, "one of the churches was going to bring this issue to the city commission as wanting to try and put forward this 'sanctuary city' ordinance." It passed in early January.
The ordinances restricting abortion access in the counties and cities look similar to one another, and resemble ones passed in Texas, Ohio, Iowa and Nebraska. That is because the anti-abortion group Wight saw coming to town helps write regulations and rally local support across those states.
Sanctuary Cities for the Unborn is a movement led by Mark Lee Dickson, director of Right to Life East Texas, and lawyer Jonathan F. Mitchell, who used to be the Texas solicitor general.
At a meeting in the Gospel Light Baptist Church in Rio Rancho last month, Dickson explained his strategy in a confident, passionate address to an audience of a few dozen supporters.
"We saw the overturning of Roe v. Wade," he said, "And my life ended up getting way busier. People thought that I would slow down. No! It just got more intense."
A strategic approach
The ordinances in New Mexico, he explained, require compliance to a federal law from the 1800s known as the Comstock Act, after a famed anti-vice campaigner called Anthony Comstock.
Comstock lobbied for a law to ban the mailing of all kinds of things he disapproved of such as erotica, guides to anatomy and sex, contraception, sex toys and any drug that could be used to produce an abortion.
Since the early 1900s, the law has been interpreted more and more narrowly and the part about abortion was largely dormant as long as Roe was on the books. Last year, the Department of Justice released a memo saying that the law "does not prohibit the mailing of certain drugs that can be used to perform abortions," as long as the sender does not intend for them to be used illegally.
Dickson and his lawyer have disregarded all of this in their ordinances, and in New Mexico, the bluest state they have ventured into yet, they face a particularly determined fight to quash the rulings they have ushered in.
Governor Michelle Lujan Grisham said last year that the Hobbs ordinance was "authored by out-of-state extremists". Lawmakers have proposed a state law to prevent local authorities from interfering with reproductive care (wrapping in care for transgender people, too). Activists from Eastern New Mexico Rising have submitted a petition in Clovis to seek a citywide mail-in vote on the ordinance.
And the Attorney General, Raúl Torrez, a Democrat, filed a writ on January 23 asking the New Mexico Supreme Court to stop the enforcement of those local ordinances, saying that local authorities do not regulate healthcare and do not have the authority to enforce federal law.
“This is not Texas. Our State Constitution does not allow cities, counties or private citizens to restrict women’s reproductive rights,” he said in a statement at the time.
The writ also requests that the Supreme Court, "finally articulate the constitutional basis for a woman's right to reproductive health care, not grounded in the federal constitution but in the state constitution," he told KUNM, adding he hopes the court will respond in the coming weeks.
Torrez is not the only Attorney General to work to maintain access to abortion. In Michigan, Dana Nessel refusedto enforce a 1931 ban, for instance. And in Delaware, Kathy Jennings filed a lawsuit against a city which issued a restrictive ordinance.
However, Torrez is the first to take on Mark Lee Dickson, who almost welcomes the challenge.
"Here's the beauty of this situation. I don't mind the fact that this is before the Supreme Court in New Mexico," he said in Rio Rancho.
What could happen is that the local authorities could seek to take the case to federal court, and possibly eventually land the case in front of the U.S. Supreme Court. Mitchell, the lawyer, has offered to represent the local authorities pro bono.
"Under this Supreme Court of the United States, this would be a great opportunity to settle this once and for all," said Dickson.
Law professor and historian Mary Ziegler chronicled the ultimately successful efforts of anti-abortion activists to overturn Roe and said there is an argument that the ordinances are a trap and that: "these ordinances are designed to provoke litigation that will do nothing but harm for abortion rights in states like New Mexico."
"I think that's a real possibility given who's on the [U.S.] Supreme Court," she said.
She said if the Comstock Act were to be interpreted in the broadest possible sense, it would essentially mean any pill, instrument or item used in an abortion clinic could not move through the mail anywhere in the U.S.
"These are the same Supreme Court justices who overruled Roe v. Wade, when they had no real imperative to do so," said Ziegler. A case in Texas also hinges on the application of the Comstock Act to stop the mailing of abortion medication. Pills are used for more than half of abortions.
Torrez acknowledged the risk, but said his writ is a matter of principle.
"We can't be retreating every time because we are trying to predict how ideology or politics is infecting the judicial branch," he said. "We can't, because if we do that, then we've got much bigger problems."