As Capitol Hill continues to cast doubt over the future of the landmark 1973 federal abortion ruling Roe v. Wade, New Mexican Democrats in the State Legislature are planning a preemptive measure to ensure abortion access remains legal at the state level.
The state law being revisited is a criminal law from 1969, N.M. Stat. Ann. § § 40A-5-1, -3 (Appendix D), which makes it a fourth degree felony for abortion providers to end a woman’s pregnancy with exceptions in the case of health risks, birth defects, rape or incest. The law also stipulates that an abortion provider with moral or religious objections to the procedure is not obligated to perform it.
After the Roe v. Wade ruling, this statute became unenforceable — although it has remained on the books for nearly 50 years.
Following the retirement of Justice Anthony Kennedy from the U.S. Supreme Court earlier this year, President Donald Trump’s controversial nominee Brett Kavanaugh was successfully confirmed by the Senate to the high court. The concern from abortion rights advocates for the continued existence of Roe v. Wade began to escalate with the confirmation of the conservative justice, underscoring a long simmering fear stoked by Trump’s rhetoric on the contentious issue.
In an interview with Fox News’ Chris Wallace in the closing stages of the 2016 presidential election, Trump was asked explicitly if he would like to see the court overturn Roe v. Wade. Trump said, “Well, if we put another two or perhaps three justices on, that's really what’s going to be — that will happen and that will happen automatically in my opinion, because I am putting pro-life justices on the court.”
Kavanaugh’s appointment was Trump’s second since assuming the presidency, following the confirmation of conservative Justice Neil Gorsuch in 2017.
Adding to the uncertainty surrounding the issue is an email that was leaked in September to the New York Times in which Kavanaugh mused on the precedent set in the Roe decision. The email included a proposal from Kavanaugh to delete a passage from a legal opinion article stating, "It is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land,” implying his reservations that the opinion is set in stone.
It is with this backdrop of unpredictability at the federal level that Democrats in the State Legislature are preparing to take action. With New Mexico completing a state trifecta in the 2018 elections — set to control the governorship while holding a majority in the state House and Senate — State Rep. Joanne Ferrary of Las Cruces is planning legislation for the upcoming session that would overturn the criminal abortion statute.
Identical bills introduced during the last two years of outgoing Governor Susana Martinez’s term in office made no progress, but Democratic Governor-elect Michelle Lujan Grisham has voiced support for a repeal of the 1969 law. During the 2018 campaign, Grisham went on record with a written statement that affirms her support for “efforts to repeal New Mexico’s currently unenforceable and archaic laws that criminalize abortion and do not reflect our New Mexican values.”
Abortion access remains a highly controversial and polarizing issue, and New Mexico is not an outlier in this regard.
The New Mexico Conference of Catholic Bishops (NMCCB) reiterated their position in a letter published in 2017, stating that “our message is consistent: All human life is sacred, from the moment of conception to natural death, and must be protected.” Allen Sanchez, executive director of the NMCCB, said lobbying efforts are being planned to prevent the repeal.
Bud Shaver, a self-described pro-life missionary, recently responded to reports of the repeal efforts in a blog post for Abortion Free New Mexico (AFNM). Shaver’s wife Tara, also of AFNM, is quoted in the post saying, “In their anticipation of the Supreme Court overturning Roe vs. Wade the radical leftist democrats in New Mexico are not wasting any time to push their extremist agenda that would remove common sense measures that were enacted to protect women’s bodily autonomy...Is Governor-elect Michelle Lujan Grisham really willing to put her signature on a bill that would leave women vulnerable to involuntary abortions being performed on them against their will?”
Also visible in the protracted battle over the New Mexico abortion law is the Albuquerque chapter of the Party For Socialism and Liberation, which held a demonstration on the University of New Mexico campus Wednesday in order to raise awareness and petition for the repeal. The group urged students and passersby to join a rally on the first day of the lawmaking session at the Roundhouse demanding action on the prohibition statute.
The New Mexico Legislature is slated to begin their annual session on Jan. 15, 2019. With a body comprised of a Democratic majority of 26 to 16 in the Senate and 45 to 23 in the House with two races still to be decided, it appears the Democrats’ proposal is likely to pass to Grisham’s desk. The hyper-politicization and legal wrangling on Capitol Hill over Roe v. Wade is likely to continue, with a self-declared pro-life administration and the changing dynamics of the Supreme Court at the center of the fray.
Andrew Gunn is a freelance reporter for the Daily Lobo. He can be contacted by email at email@example.com or on Twitter @agunnwrites.