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Edgewood anti-abortion ordinance likely to face challenge at NM Supreme Court, scholar says


Edgewood anti-abortion ordinance likely to face challenge at NM Supreme Court, scholar says

Apr 17, 2023 | 7:05 am ET
By Austin Fisher
Edgewood anti-abortion ordinance likely to face challenge at NM Supreme Court, scholar says
Since Roe v Wade was overturned last summer, abortion medication has been under fire as the abortion drug mifepristone is the subject of a federal lawsuit and some states are attempting to restrict access by threatening legal action against retail pharmacies and suppliers of the drug. (Adobe Stock)

Elected officials for the Town of Edgewood are expected to vote later this month to effectively ban abortion within the town’s limits.

However, the ordinance will likely face legal challenges, including an uphill battle at the New Mexico Supreme Court, which on March 31 ordered similar local ordinances to have no effect.

The Edgewood ordinance would allow any private citizen to sue anyone who would send abortion medication through the mail, and sets up successful prosecutions to include penalties up to $100,000 for each violation.

The court is awaiting more detailed arguments from the New Mexico Attorney General’s Office and the local governments so it can rule on the ordinances’ constitutionality and whether any of these local regulations violate House Bill 7. This new state law prevents governments or individuals from interfering with or discriminating against someone’s access or use of reproductive or gender identity health care.

While Edgewood is not named in the lawsuit, it could become part of the case, said Maryam Ahranjani, a professor of law at the University of New Mexico School of Law.

“This is somewhat unprecedented — it’s playing out in courts all over — but I do think it could,” Ahranjani said in an interview on Friday.

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The Attorney General’s Office did not respond to a written request for comment on whether it is watching what’s happening in Edgewood. However, state prosecutors anticipated the four ordinances they are challenging would not be the last.

“The local governments named in this action and others will continue to pass laws that attempt to regulate and prohibit abortion in the wake of Dobbs,” the AG’s office wrote in its petition to the court.

The AG’s office must turn in its arguments by April 20. The local governments must then respond within 20 days.

Even if the New Mexico Supreme Court does decide these local ordinances are not enforceable, they still pose a danger of a chilling effect on the ground, Ahranjani said.

“That’s a real disappointment, because it’s a waste of taxpayer dollars, it’s a waste of time and resources of elected officials who have much more important, pressing matters that are more squarely within their job descriptions than passing unenforceable ordinances,” she said.

These ordinances violate New Mexico’s existing protections for the right to abortion, Ahranjani said.

Without question, the right to abortion is protected in New Mexico, Ahranjani said. She predicts Torrez’s challenge to the ordinances to be successful.

While the New Mexico Supreme Court hasn’t directly addressed whether the state constitution secures a right to reproductive freedom and choice that includes the right to abortion, the AG’s office wrote, it has said the state’s Equal Rights Amendment provides a legal remedy for gender-based discrimination.

That ruling considered Medicaid funding for medically necessary abortion, and remains the only time so far that a state’s equal rights amendment has been applied to gender-based discrimination with regard to abortion, Ahranjani said.

Author of infamous Texas ban behind Edgewood ordinance

The Edgewood ordinance, discussed for about three hours in a public meeting on April 4, has the support of all but one of the town’s elected commissioners, who plan to enact it over the advice of the town’s attorneys who say it would likely lead to a costly lawsuit over its constitutionality.

Leading the effort behind the ordinance are two men: Edgewood Commissioner Sterling Donner and Jonathan Mitchell, a lawyer from Austin, Texas, and the author of the vigilante-enforced ban on abortion care at about six weeks of pregnancy in New Mexico’s neighboring state.

Michael J. Seibel, an Albuquerque-based anti-abortion lawyer, consulted with Mitchell on the Clovis and Hobbs ordinances, and is representing those cities in the case before the state Supreme Court.

Edgewood Mayor Audrey Jaramillo said Mitchell sent the commissioners a letter committing to “represent the town of Edgewood at no cost to the city or its taxpayers in any litigation that results from a decision to enact this ordinance.”

Mitchell denies the proposed ordinance would ban abortion.

Appearing at the meeting virtually, Mitchell told the Commission they could write the ordinance in such a way that it doesn’t go into effect until after the U.S. Supreme Court rules on whether the Comstock laws, federal statutes from the 19th century, prohibit the shipment or receipt of abortion pills.

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“The way we have crafted this ordinance, it’s impossible for there to be a conflict with House Bill 7,” he said.

Federal law would preempt any New Mexico statute or case law, Ahranjani said. The U.S. Supreme Court’s decision in Dobbs said there is no right to abortion under the federal constitution, Ahranjani said.

In terms of constitutional rights, states have to at least meet the federal standards, Ahranjani said, but they can provide more, and many do, including New Mexico.

Poll after poll shows most people in the U.S. support the right to choose, Ahranjani said.

“It is the will of the people to have a right to choose,” she said.

Edgewood commissioners are expected to vote on the ordinance in a public hearing at 6:30 p.m. on April 25.