Court ruling sought on NM abortion law

Andy Brosig/News-Sun

A petition filed last week in the Fifth Judicial District for Chaves County in Roswell calls for a return to a 1963 law outlawing abortion.

State Sen. David Gallegos, R-Eunice, Larry Marker of Roswell, who’s recently filed as a write-in candidate for the office of State Land Commissioner, and Ethel Maharg of Albuquerque, executive director of the group New Mexico Right to Life and recent Republican gubernatorial candidate, named Gov. Michelle Lujan Grisham and Attorney General Hector Balderas as defendants in the petition.

The three said when the state legislature repealed a 1969 law that banned abortion in New Mexico and failed to adopt a new law, it left a void and opened the state to become “the abortion capital off the world,” Gallegos told the News-Sun.

The 1969 law permitted abortions only to protect the health of the mother, if the child “probably will have a great physical or mental defect,” or if pregnancy was the result of rape or incest. The petitioners said the 1963 law has precedence since the repeal only permits abortion “to preserve the life of the woman or to prevent serious and permanent bodily injury.”

Abortion rights advocates “made a big deal out of repealing these laws, instead of replacing them with anything in the case of Roe vs Wade being overturned,” Marker told the News-Sun. “The Roe vs Wade gets overturned and everybody is happy, but I’m thinking, ‘Oh (expletive), we have a problem.’”

Marker said he initially attempted to have a referendum placed on the ballot for the November election this year, but “the Secretary of State kept stonewalling me. That’s just how things roll in the state of New Mexico.”

Filed June 22, the petitioners requested a declaratory judgement from the court, arguing “statutory authority does not currently exist that allows for or legalizes abortion procedures within the borders of the State of New Mexico.”

Likewise, Marker and Gallegos said, the lack of a statute codifying abortion regulation makes the situation a “free-for-all,” Marker said.

“We don’t have any laws on the books relating to abortion,” Marker said. “What do we do? Do we just cut everybody loose with unlimited access to abortion in the State of New Mexico?

“I hope we at least can get some sanity,” he said. “We can’t have unlimited abortion for any reason you want. (New Mexico) is going to go from the abortion capital of the nation to really the abortion capital of the world.”

At the core of the current issue is that void, Gallegos said. When the U.S. Supreme Court last month issued its ruling, effectively removing federal medical oversight of abortion and turning the issue back to states to decide, there wasn’t a law on the books in New Mexico to guide those decisions here.

“When they did that and we don’t have a statute on the books, the state doesn’t have anything to fall back on except the 1963 version (of the law),” Gallegos said. “It’s still there. (The legislature) didn’t repeal it, they just repealed the 1969” law.

“That’s the quandary we’re in — is the governor right in wanting to solidify abortion for all, or do we just go back to the last statute that’s on the books?” he asked. “We think that’s where we should be. If we’re right, (Lujan Grisham) is going to have to do something to clarify her side.”

Lujan Grisham signed an executive order on June 27, codifying protections for both women seeking “reproductive health care services” in New Mexico and health care professionals in the state providing those services. The executive order also prohibits state agencies from assisting out-of-state entities investigating women entering New Mexico for reproductive health services, facilitating extradition of women seeking such services.

Gallegos said he anticipates Lujan Grisham to call a special legislative session to address the issues surrounding abortion in New Mexico. There’s more details that need to be worked out in state law, but Gallegos believes such actions could backfire on Lujan Grisham in an election year.

If Lujan Grisham takes no action going forward, Gallegos and Marker believe that only solidifies their position the 1963 abortion law is the law of the land in the state — stringent restrictions and all — they said.

But if Lujan Grisham moves forward and calls a special sessions, Gallegos and Marker see the possibility the financial cost of a session could upset voters, potentially on both sides of the issue.

“I think personally (Lujan Grisham) painted herself into a little bitty corner, that if she does anything it will be really bad for her politically, and I want to help her out with that all I can,” Gallegos said. “I think either way she goes there’s a little bit of blood to be bled by the governor.”

This is not the first time Gallegos and Marker have turned to the courts over the actions of Lujan Grisham.

In September, the pair filed a petition with more than 1,000 signatures in each of about 20 of New Mexico’s 33 counties attempting to convene a grand jury to investigate Lujan Grisham’s “emergency health orders” issued as her response to the COVID-19 pandemic. By some estimates, Lujan Grisham’s actions have cost the state of New Mexico as many as 40 percent of small businesses that failed to reopen after she forced them closed.

Gallegos also filed suit to challenge the legislative redistricting maps adopted earlier this year — a suit eventually joined by several counties in southeastern New Mexico. Marker filed with the court to be appointed as an intervener — essentially a third party with an interest in the outcome — for the redistricting challenge but was denied by the court, he said.

That lawsuit is still in the courts, as the Democratic-led Legislature did not adopt any of the non-partisan citizen’s submitted redistricting maps, in favor of maps that seek to eliminate any Republican opposition in the state — including eliminating the district of the only African-American woman in the N.M. House, Jane Powdrell-Culbert, R-Corrales.

With the current lawsuit, district courts “will push it all the way to the (New Mexico) Supreme Court, which will probably turn a blind eye to it,” Gallegos said. “But it’s one of those things — you’ve got to continue fighting.”

Gallegos and Marker said Lujan Grisham’s domination of all three branches of state government also means it is not likely to be heard in a meaningful way. Gallegos told the News-Sun the people of New Mexico did not elect queen or a dictator, and her almost overwhelming control over the courts virtually prevents any outcome except the one she wants.

But that doesn’t mean he’s going to stop trying.

“She owns the court system and she knows it,” he said “But to me it’s still worth arguing the point, putting it in front of the (the judges) and letting the people know things aren’t right with the whole state. We’ve got multiple problems because (Lujan Grisham) runs this state like a dictator, in my view.

“From the fifth judicial district all the way to the supreme court, they’d rather turn a blind eye than do what the people have asked them to do,” Gallegos said. “And I’ll take that to the bank.”

Andy Brosig may be reached at reporter1@hobbsnews.com .

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