The state Supreme Court is set to hear oral arguments Wednesday over whether local ordinances restricting abortion access are unlawful.
Abortion remains legal in New Mexico, which overturned a dormant 1969 ban on the procedure in 2021, ahead of the landmark 2022 ruling that ended the federal right to an abortion.
Abortion rates have more than tripled in the state since 2020, as more people travel here for care and neighboring states restrict or ban the procedure.
Whole Woman's Health, forced to close four clinics in Texas, opened a facility in Albuquerque and Jackson Women's Health Organization, whose Mississippi clinic was at the center of 2022's landmark Dobbs ruling, opened in Las Cruces.
But several more conservative local governments have passed ordinances placing restrictions on potential abortion providers.
"Clearly the southeastern part of the state and, and much of West Texas, all of that area of our country has been very vocal about their pro-life position," said Sam Cobb, the mayor of Hobbs. "And so we as elected officials, we tried to reflect our constituents' wishes."
The local ordinances cite a 150-year old federal law known as the Comstock Act. According to Cobb, the law means that any facility offering abortion, "if they use any drugs or any other devices that are not manufactured within the state of New Mexico, then they would be prohibited under federal law."
While Cobb insists that he has not banned facilities from providing abortion, merely regulated them, many consider a ban on any drug or equipment crossing state lines a de facto abortion ban.
And his interpretation of the Comstock Act is controversial. The law was largely dormant until recently, and the Department of Justice said in a memo last year that it does not prohibit the mailing of abortion drugs.
In January this year, Democratic Attorney General Raúl Torrez asked the state Supreme Court to nullify the Hobbs ordinance and similar ones in Roosevelt and Lea Counties and the city of Clovis.
He argues they violate the state constitution, which has an equal protection clause, and that they overstep local authorities' rights to regulate healthcare. In March, the court agreed to hear the case, and blocked the local ordinances in the meantime.
"The idea that a local, county or city has some sort of authority to misinterpret and misrepresent a hundreds-of-year-old law and claim that it has some sort of application in a separate civil municipal licensing scheme does not stand to reason," said Ellie Rushforth, an attorney with the ACLU, one of several organizations which filed an amicus curiae brief with the Supreme Court in support of the attorney general.
She said local municipalities do not have the authority to enforce federal law at all.
Since the attorney general filed his writ, two more municipalities have passed ordinances, and the state Legislature passed House Bill 7, prohibiting local governments from restricting an individual’s ability to access reproductive healthcare. The court will have to decide how to factor that into its decision but Rushforth thinks it strengthens the attorney-general's case.
"Not only were these ordinances blatantly unconstitutional and in violation of New Mexico statutory law when passed, they are plainly in violation of this new law that went into effect this year," she said.
The stakes could be higher than just access to reproductive health care in New Mexico. Anti-abortion activists have said that because there is a federal law cited in the local ordinances, if the state rules against them, they could try to escalate an appeal to the Supreme Court of the United States.
