ALBUQUERQUE, N.M. (KRQE) – With the United States Supreme Court issuing a ruling Friday overturning the 1973 Roe v. Wade decision, the nation’s highest court has effectively ended protections on abortion access at a federal level. The ruling essentially allows for states to enforce their own laws regarding access to abortion.
So what does the ruling mean for New Mexico? While several neighboring states in the southwest and southeast are expected to see significant, further changes in rules surrounding the termination of a pregnancy, New Mexico is unlikely to see any immediate changes due to a 2021 bill passed by state lawmakers and signed by Governor Michelle Lujan Grisham.
The Road to Senate Bill 10
During the 60-day regular legislative session in 2021, New Mexico lawmakers passed Senate Bill 10, a bill designed to repeal a 1969 New Mexico law banning abortion.
According to a 2021 legislative analysis, New Mexico’s 1969 abortion ban made the act of terminating a pregnancy a felony crime, except in the circumstances of rape or threat to the pregnant person’s life. However, as the Roe. v. Wade decision took shape in 1973, New Mexico never enforced the old law.
Previously, Roe v. Wade essentially prevented individual states from banning abortion outright up until fetal viability, at 23 weeks. The decision allowed for state’s to determine when or if an abortion would be allowed beyond that.
By the late 2010’s, several New Mexico lawmakers began attempts to overturn the state’s 1969 law, which remained unenforced. In 2019, an attempt to repeal the law came in the form of House Bill 51. However, that bill failed to pass a Senate floor vote. The bill was defeated by all 16 Republicans and a group of eight Democratic senators who voted against the bill: Pete Campos (Las Vegas,) the late Carlos Cisneros (Questa), Richard Martinez (Española) George Muñoz (Gallup), Mary Kay Papen (Las Cruces), Gabriel Ramos (Silver City), Clemente Sanchez (Grants), and John Arthur Smith (Deming.)
Consequently, during New Mexico’s 2020 primary election, several of the key Democratic lawmakers who voted against House Bill 51 lost intraparty challenges to more processive Democratic lawmakers. Those included John Arthur Smith, Mary Kay Papen, Gabriel Ramos, Clemente Sanchez and Richard Martinez.
During the following 2021 regular legislative session in January, the Democratic controlled legislature amassed enough new votes to pass another attempt at repealing New Mexico’s abortion ban. The new repeal effort, Senate Bill 10, passed in both the House and the Senate. Only one Republican in the entire legislature voted for the bill: Roswell Representative Phelps Anderson. Anderson later changed his party affiliation to “decline to state” following intraparty backlash for his vote. Anderson isn’t running for re-election in 2022 midterm election.
On February 26, 2021, Governor Michelle Lujan Grisham signed Senate Bill 10, repealing the state’s 52-year old abortion ban. In a statement, the Governor said, in part, “A woman has the right to make decisions about her own body. Anyone who seeks to violate bodily integrity, or to criminalize womanhood, is in the business of dehumanization. New Mexico is not in that business – not any more.”
Several New Mexico Republican lawmakers reacted to the bill signing with opposition. A news release sent out in February 2021 highlighted some of that opposition in statements from Republican state senators.
“Though the Governor and pro-abortion activists will claim this as a victory for women, the only victor in this bill is the multi-million dollar abortion industry,” said Republican Senator Crystal Diamond of Truth of Consequence. “With the stroke of her pen, the Governor has weakened standards of care for women, stripped conscience protections for medical professionals, and given the abortion industry unchecked power to operate under the radar in our state. New Mexico women and children deserve better.”
So, what abortion laws are on the books for New Mexico?
According to a 2021 legislative analysis, Senate Bill 10’s repeal effectively removed three sections from New Mexico state law:
- §30-5-1 – Defines terms used in the remainder of the section, including “justified medical termination” as occurring in cases of rape, incest, risk of maternal death or “grave impairment of physical or mental health” or the probability that the newborn will have a “grave physical or mental defect.”
- §30-5-2 – Permits institutions and individuals to refuse to participate in abortion procedures and prohibits retaliation against them for such refusal.
- §30-5-3 – Broadly defines “criminal abortion”, exempting “justified medical termination” from that definition, and penalizes it as a fourth degree felony, or, in the case of an abortion resulting in death of the woman, as a second degree felony.
Since removing the above language from state law, New Mexico is essentially without statute on the books defining restrictions on abortion. According to an analysis from the Guttmacher Institute, “New Mexico does not have any of the major types of abortion restrictions — such as waiting periods, mandated parental involvement or limitations on publicly funded abortions.”
However, New Mexico is also without specific protections on the books guaranteeing the right to an abortion. Some states have moved toward that type of legislation in recent years.
Are there other laws New Mexico could pass related to abortion access?
Earlier this year, in March, lawmakers in neighboring Colorado passed a bill called the “Reproductive Health Equity Act.” The bill codifies a woman’s right to abortion into Colorado state law. The bill, which passed on party lines in the Colorado House and Senate, was signed by Democratic Governor Jared Polis in April 2022.
According to a legislative analysis from the state of Colorado, the bill prohibits state and local public entities from denying, restricting, interfering with or discriminating against an individual’s “fundamental right to use or refuse contraception, or to continue a pregnancy and give birth, or to have an abortion in the regulation or provision of benefits, services, information, or facilities.” The bill also bars prosecution and punishment against actions related to pregnancy decisions.
New Mexico does not have a similar law on the books. State lawmakers also haven’t introduced similar legislation in recent legislative sessions.
In prior statements following the repeal of Senate Bill 10, some New Mexico lawmakers have justified the repeal effort as “guaranteeing” the right to reproductive health care. However, the repeal bill simply removed the state’s 1969 abortion ban.
In May 2022, Democratic Senator Siah Correa Hemphill (Silver City) suggested to the Albuquerque Journal that lawmakers should move in the direction of taking additional steps to protect abortion access in New Mexico, like Colorado has done. In a statement sent to KRQE News 13 Friday, Sen. Correa Hemphill said, in part, she is “proud” of the work lawmakers have done “to protect access to reproductive healthcare.”
“We need to make every effort to ensure we don’t inadvertently create barriers for women who are seeking reproductive care,” Sen. Correa Hemphill said. “My priority is continuing to demonstrate our respect for women by focusing on removing any barriers to productive care so each and every woman in NM can continue to make these deeply personal decision in private with her healthcare provider.”
In response to the U.S. Supreme Court ruling Friday, the Republican Party of New Mexico called the decision historic “on moral, religious and political grounds.” In a statement, New Mexico Republican Party Chairman Steve Pearce said the decision is “in the best interest of America.”
“The progressives are insistent that their view is correct, but this will be proven in state elections,” the New Mexico Republican Party stated in a news release Friday. “If more states elect pro-life candidates, then state laws will change. This is especially vital here in New Mexico where we have such radical abortion laws.”