Local Abortion Restrictions Preempted in New Mexico

The New Mexico Supreme Court this month struck down an attempt by conservative activists to create “sanctuary cities for the unborn” — localities that outlaw abortion despite state protections for the procedure. 

Following the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, the issue of abortion access has largely shifted to the state level. New Mexico’s laws are among the most protective of abortion. The state does not restrict abortion access based on gestational duration, state Medicaid funds are available to cover abortion costs, and qualified health care professionals — not solely physicians — can provide abortions.

Due east of New Mexico, and sharing a lengthy border, is Texas, which has adopted some of the most restrictive abortion policies in the nation. Abortions are banned, with only limited exceptions, and even mailing abortion pills to or within Texas is a criminal offense. It’s no wonder, then, that more than 14,000 patients traveled to New Mexico from Texas for abortion care in 2023.

Abortion opponents, unhappy that Texas’s restrictive policies stopped at that state border, developed a scheme to undermine New Mexico’s liberal abortion policies. Drawing inspiration from the immigration context — in which cities around the country announced they will not assist in federal immigration enforcement — former Texas Solicitor General Jonathan Mitchell and anti-abortion activist Mark Lee Dickson supplied several local governments in New Mexico with blueprints for local anti-abortion ordinances. 

In a twist intended to put the force of federal law behind the local ordinances, the proposals purported to implement the federal Comstock Act of 1873 at the local level. Long considered to be a “zombie law,” the Comstock Act outlaws the mailing of abortion-related medications and other abortion-related materials. It remained on the books despite a long dormancy and, since Dobbs, has received new attention as a possible lever for effecting a nationwide abortion ban through regulation of the mail.

In late 2022 and early 2023, respectively, the New Mexico cities of Clovis and Hobbs enacted ordinances modeled on the Comstock Act. They were later joined by two counties on the Texas border, Roosevelt and Lea, as well as several other local governments not named in this lawsuit. While the ordinances shared the same inspiration and all incorporated the Comstock Act’s restrictions on mailing or receipt of any abortion-related material, they were not identical. Roosevelt County, Clovis, and Hobbs adopted stringent licensing requirements targeting abortion clinics. Lea County imposed a $300 fine for each instance of using the mail to facilitate abortion. Roosevelt County went further, creating a private cause of action against abortion clinics with statutory damages of not less than $100,000 for each violation.

Because there were no abortion providers in any of these jurisdictions, the local ordinances had no immediate impact on health care access. But because they undermined the uniformity of New Mexico’s health laws and chilled the exercise of abortion rights, the state Attorney General Raúl Torrez filed directly with the state supreme court a request for a writ of mandamus to prohibit the local governments from enforcing the ordinances. The petition asserted that state law preempted the local ordinances. In the alternative, the attorney general argued that the local laws violated rights protected by the New Mexico Constitution.

More than a year later, the state supreme court issued a unanimous decision in favor of the state. The decision in Torrez v. Board of County Commissioners rested entirely on state preemption, with the court specifically declining to address whether the Comstock Act, embedded in the local ordinances, preempted New Mexico’s state law. 

The court first found that the mandamus action was a proper vehicle for the challenge. Mandamus is a remedy that allows a court to order officials to perform their official duties or to prohibit unconstitutional official actions. It is reserved for “extraordinary circumstances,” the court explained, such as those that call for “expeditious resolution that cannot be obtained through other channels such as a direct appeal.” According to the court, this was such an occasion because of the potential impacts of the ordinances on the rights on New Mexicans and the conflict between state and local law raised in the case.

The court then turned to the state supremacy issue, explaining that the state preemption power flows from the state legislature since there is no state analog to the federal supremacy clause. Counties and municipalities are created by the state. Some New Mexico municipalities, like Hobbs and Clovis, have enacted “home rule” charters, which give them limited autonomy from state interference in matters of local concern. But abortion access is not a matter of local concern, the court stated. It is specifically addressed in several state laws. These state legislative enactments place limitations on local power to act in the abortion arena, even when a city has established home rule. Cities without home rule and counties — which are not eligible for home rule status — are likewise powerless to adopt ordinances that contravene state law unless the state legislature specially grants them that power.

In the case of abortion, the court determined that the local ordinances were both expressly and implicitly preempted by state law. The state’s Health Care Freedom Act, which governs access to reproductive services such as abortion, explicitly preempts local deviations in access. The state’s laws on medical and professional licensing and malpractice insurance implicitly preempt local licensing standards. So when the counties and home rule municipalities purported to create new individual rights through a private cause of action, they exceeded their constitutional and statutory authority. The court took particular umbrage at this aspect of the ordinances, writing that a private cause of action and damage award “intended to punish protected conduct” far exceeds any legitimate municipal interest. 

The issue of whether state law can override, or pre-empt, local city or county ordinances arises regularly. In such cases around the country, state courts have often come down on the side of conservative interests, reinforcing the supremacy of state law by striking down local minimum wage laws, city efforts to ban fracking, and prohibitions on single use plastic bags, among other local laws. While the underlying principles of state preemption are familiar, their application in the abortion context is uncommon.

But as battles over reproductive rights continue to rage, this is unlikely to be the last case to raise issues related to state preemption of abortion restrictions. In the whack-a-mole post-Dobbs world, every state can interpret its own parameters of state preemption. Other states are already facing this issue, with municipalities in Illinois and Colorado entertaining anti-abortion ordinances despite statewide policies permitting access.

The architects of these local ordinances, Mitchell and Dickson, have their eyes on an eventual resolution of the issue in the U.S. Supreme Court. With the New Mexico Supreme Court pointedly limiting its ruling to state law, this particular case is an unlikely candidate for achieving their ultimate goal. Eventually, a similar case may very well make it to the nation’s highest court, teeing up the question the New Mexico court avoided: whether local ordinances based on the federal Comstock Act preempt state law.

Martha F. Davis is a distinguished professor at the Northeastern University School of Law.

Suggested Citation: Martha F. Davis, Local Abortion Restrictions Preempted in New Mexico, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 24, 2025), https://statecourtreport.org/our-work/analysis-opinion/local-abortion-restrictions-preempted-new-mexico