New Mexico Supreme Court to Hear Arguments on New Anti-Abortion Tactic

A new tactic by anti-abortion activists takes center stage in New Mexico’s highest court next month: local bans on abortion that rely on the Comstock Act, a century-old federal law outlawing the mailing of abortion-related medications.

The New Mexico Supreme Court will hear arguments on December 13 in New Mexico v. Board of Commissions for Lea County, a case brought by the New Mexico attorney general to challenge the creation of so-called “sanctuaries for the unborn” established by two counties and two cities in the state.

Under state law, abortion is legal in New Mexico throughout pregnancy. However, in defiance of the statewide protection, several local jurisdictions have adopted ordinances that criminalize the procedure or are designed to bar abortion clinics within their borders.

The cities of Hobbs and Clovis impose elaborate licensing schemes on providers and purport to extend criminal sanctions to anyone — providers or individuals — receiving pills or other abortion-related material by mail. Roosevelt County adopted a licensing requirement and created a private cause of action against abortion clinics, with statutory damages of $100,000 or more per violation. Lea County enacted an ordinance imposing a $300 fine on individuals for each use of the mail to further an abortion, a penalty that is also extended to anyone who aids or encourages an abortion.

In a pro-choice state like New Mexico, local bans on abortion would seem to squarely violate state law. These bans, however, come with a twist — one that was developed by a pair of Texas-based abortion opponents who are evangelizing their approach around the country. The local ordinances incorporate provisions of the federal Comstock Act. Enacted in 1873, the Comstock Act forbids sending anything that can produce an abortion through the mail. It has not been enforced for almost a century, and much of it has been repealed or superseded by case law. The statute made headlines earlier this year after a federal district court judge in Texas cited it in his opinion attempting to block FDA approval of mifepristone, a drug used for medication abortions.

Despite a U.S. Department of Justice legal opinion to the contrary, the local governments in New Mexico argue that the Comstock Act — or what remains of it — criminalizes mailing of abortion-related materials, including abortion pills. And because the local ordinances incorporate the federal Comstock provisions, they argue, the local rules constitute supreme federal law that prevails over New Mexico’s state law on abortion.

New Mexico’s attorney general challenged these ordinances in the state supreme court as an emergency action in mandamus, which allows parties to ask a court to direct public officials to perform their official duties. Under New Mexico law, mandamus actions to prohibit unconstitutional action by government officials may be filed directly with the state high court. The attorney general is seeking an order declaring the local ordinances void and enjoining their enforcement. He argues that the laws violate New Mexico constitutional provisions protecting equality, due process, and privacy, as well as the state’s Equal Rights Amendment. He also maintains they run afoul of a clause stating that all New Mexicans “have certain natural, inherent and inalienable rights,” pointing to holdings by the supreme courts of Kansas, Ohio, and New Jersey that similar constitutional language includes a right to bodily autonomy.

The lawyers representing the local governments, which include the DC-based organization Alliance for Freedom and former Texas Solicitor General Jonathan Mitchell, assert that mandamus is not available in this instance, since the regulations have not been enforced. A Hobbs city official told the press shortly after the case was filed that, “to date, the City Clerk’s Office has not received any business applications for prospective abortion providers.” The attorney general argues that the localities’ calculated action to chill abortion-related activity is certainly enough government action to support a mandamus proceeding. After all, it is no small wonder that abortion providers have not applied to offer services in these communities, given the threat of criminal sanctions and hefty fines.

At the center of the case is the question of state preemption: does the New Mexico state law, which includes provisions supporting abortion access as well as a comprehensive scheme of medical licensing and regulation, preempt local ordinances that impose more stringent restrictions? Ironically, after decades of support for states’ rights by anti-abortion activists — including claiming victory when the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization invited state regulation of abortion — they now argue that the state of New Mexico stands in the way of their agenda.

They face an uphill battle. Counties and cities are not sovereign entities. They are political subdivisions of the state, created by and subject to state laws. And here, the state has specifically indicated its intent to preempt the local ordinances. Earlier this year, New Mexico’s governor signed legislation overriding local abortion bans and making explicit that abortion is a matter of state, not local, concern — an action that the state supreme court is likely to view as resolving the question of whether New Mexico’s local governments can enact their own restrictive abortion ordinances. 

A fervent hope of the abortion opponents involved in the current case is to present their arguments in favor of local Comstock laws to the U.S. Supreme Court, an aim that they have repeatedly shared with the press. After the Dobbs decision, they view the Court as a friendly forum for anti-abortion activists. 

But a federal issue supporting appeal to the Court is lacking in this case, despite the cameo appearance of the Comstock Act. The question regarding the scope of state preemption, including the interpretation of the New Mexico state constitution, simply does not raise any federal issues. And the attorney general has asked the Court to explicitly state that there are no federal questions in the case, in order to ward off any effort by the local jurisdictions to establish a basis for the high court’s review.

In sum, while courtroom predictions are notoriously risky, in this case, the state seems to have the clear advantage. But the very fact that this case exists underscores the sad fact that there is no end in sight to the abortion wars. Lea and Roosevelt Counties, and the cities of Hobbs and Clovis, are not the first communities to try to depart from their state’s abortion laws: in the 1960s and 1970s, there were similar unsuccessful efforts by local governments to adopt their own abortion laws in defiance of states. For nearly 50 years, Roe v. Wade shifted the focus of both pro-choice and anti-abortion activists to federal law, which kept the controversies relatively contained. Now, post-Dobbs, the war is again being waged in full force at every level of government.

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