Why pro-lifers are ‘thrilled’ by NM Supreme Court’s ruling against ‘Sanctuary Cities for the Unborn’

The New Mexico Supreme Court has ruled against Lea and Roosevelt counties and the cities of Clovis and Hobbs, claiming their passage of pro-life ‘Sanctuary Cities for the Unborn‘ ordinances “exceeded their authority by enacting ordinances preempted by state law.”

However, despite the apparent loss, the decision has “thrilled” legal representatives of the Cities and Counties who passed the pro-life measures, as well as pro-life activists who supported the ordinances. Why? Because the ruling acknowledged the validity of the federal Comstock Act, which prohibits the mailing of abortion-inducing drugs and other devices.

The case is being watched closely, as it has the potential to come before the United States Supreme Court, and could result in a decision to uphold the federal Comstock Act.

History of ‘Sanctuary Cities for the Unborn’ Ordinances in New Mexico

That lawsuit originated in 2023 after the cities of Clovis and Hobbs passed Sanctuary Cities for the Unborn Ordinances, requiring abortion providers to comply with federal law — namely the Comstock Act.

Immediately after the ordinances passed, New Mexico Attorney General Raúl Torrez (who has been endorsed by Planned Parenthood) requested and received an Emergency Petition for Writ of Mandamus and Request for Stay from the New Mexico Supreme Court, halting implementation of the ordinances.

The state legislature then passed HB7, essentially declaring any ordinance that violates the state’s “Reproductive and Gender-Affirming Health Care Freedom Act” as null and void.

Despite the AG’s lawsuit, the City of Eunice moved forward final passage of its ordinance the same day the AG filed suit. The City of Eunice then sued Governor Michelle Lujan Grisham and AG Torrez, setting the stage for a showdown that could make its way to the United States Supreme Court.

Oral arguments at the New Mexico Supreme Court were heard in December.

SCFTU Ordinances Required Compliance with Federal Comstock Act

The New Mexico Supreme Court document stated:

From our reading of the Ordinances, we distill the following: the Ordinances contain nearly identical language and seek to restrict local access to abortion services by purportedly requiring compliance with the federal Comstock Act [18 U.S.C. 12 § 1461].

The Comstock Act, in part, imposes felony liability for the mailing of ‘[e]very article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; . . . Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose.

The New Mexico Supreme Court document mentioned a recent Department of Justice slip opinion which argued that the long-held Comstock Act did not apply where “the sender lacks the intent that the recipient will use them unlawfully.”

This key phrase, “intends them to be used unlawfully” appears to indicate that the Comstock Act could be applicable when the sender mails abortion-inducing drugs where they are intended to be used “unlawfully.”

The New Mexico Supreme Court’s Opinion

“The Court’s unanimous opinion invalidates local ordinances by Lea and Roosevelt counties and the cities of Hobbs and Clovis that attempted to restrict access to abortion services. The Court issued an order – a writ of mandamus – prohibiting the local governments from enforcing the ordinances,” a press release issued by the New Mexico court stated.

“Because the court resolved the case based on state law, the justices declined to address whether the ordinances violated New Mexico constitutional protections,” the release added.

According to a slip opinion of the New Mexico Supreme Court ruling in the State ex rel. Torrez v. Bd. of Cnty. Comm’rs for Lea Cnty case, published on January 9 by Law.Justia.com, “The ordinances at issue (collectively, the Ordinances) create blanket prohibitions on the mailing or receipt of any abortion-related instrumentality, which purport to be in ‘compliance with federal law,’ namely portions of the Comstock Act,” the Court documents stated.

The Court also referred to the prohibition contained in the ordinances to license abortion facilities, claiming it “exceeded [the ordinances’] Constitutional and statutory authority.”

“Additionally, three of the Ordinances create licensing schemes (collectively, licensing Ordinances) exclusive to abortion clinics and providers that mandate clinic compliance with the Comstock Act and vest city commissioners and county managers with sole discretion for licensure approval,” the New Mexico Supreme Court document stated, adding, that the counties and cities argue that they are lawfully allowed “to license business and legislate for the health and safety of county and municipal inhabitants,” but the Court said that the localities’ “authority to regulate health care access and physician licensure is entirely preempted… they certainly have no power to supplant the will of the statewide electorate in favor of their own.”

The Court said it decided the case “under the preemption doctrine” and claimed, “Creating a private right of action and damages award that is clearly intended to punish protected conduct far exceeds any interest that is ‘incident[al] to the exercise of an independent municipal power.’”

The State of New Mexico had argued before the Court that the localities’ regulation of abortion “contain an impermissible sex-based classification that presumptively violates our Equal Rights Amendment. …Relatedly, the State asserts that the right to terminate a pregnancy is an inherent right embraced under the trifold protections of due process, privacy, and the inherent rights clause,” according to the court document.

“Because we conclude the Ordinances, in their entirety, plainly conflict with provisions of the Reproductive and Gender-Affirming Health Care Freedom Act (the Health Care Freedom Act or the Act), NMSA 1978, §§ 24-34-1 to -5 (2023), we hold the Ordinances are preempted by state law,” the document read.

The Court’s opinion, written by Justice C. Shannon Bacon with an additional four justices concurring, concluded that, “Our Legislature granted to counties and municipalities all powers and duties not inconsistent with the laws of New Mexico. The Ordinances violate this core precept and invade the Legislature’s authority to regulate access to and provision of reproductive health care. Therefore, based on the independent and adequate state law grounds provided in the Reproductive and Gender-Affirming Health Care Freedom Act, the Medical Practice Act, the Medical Malpractice Act, and the Health Care Code, as well as the Uniform Licensing Act, we hold the Ordinances are preempted in their entirety. Accordingly, we grant the writ of mandamus prohibiting Respondents from enforcing the Ordinances.”

SCFTU Ordinances Brought on by Dobbs Decision

The Justices noted that the ordinances were a direct result of the overturning of Roe v. Wade in the Dobbs v. Jackson Women’s Health Supreme Court case, making “the authority to regulate abortions a state issue.”

“Dobbs invited the kind of intrastate conflicts created by the Ordinances,” the opinion by the New Mexico Supreme Court stated.

The Court document mentioned the state-funded $10 million abortion facility “in Doña Ana County on the state’s southern border.”

“Of central importance to this proceeding, the Health Care Freedom Act, the first substantive enactment affirmatively addressing the right to access reproductive health care in New Mexico, went into effect June 16, 2023,” the document also stated. It added:

The Act prohibits any public body, entity, or individual from interfering with access to reproductive or gender-affirming health care and imposes penalties for violations of the Act’s provisions.

As public bodies, all cities and counties within the state—including Hobbs, Clovis, Lea County, and Roosevelt County—are subject to the language of the Act. Further, the Act creates a private right of action to bring suit against any public body or entity for violating the Act…Notably, the Ordinances emerged amidst these significant legislative and executive actions protecting access to abortion.

Appeal to the Supreme Court Likely

Attorney Mike Seibel, who also represented the City of Hobbs in the case, previously speculated that because of “the liberal makeup of the New Mexico Supreme Court,” his clients were “anticipating an appeal to the United States Supreme Court on the Comstock law.”

Ironically, at least two U.S. Supreme Court Justices previously hinted that the Comstock Act could be in play during oral arguments in the Alliance for Hippocratic Medicine (AHM) v. Food and Drug Administration (FDA) lawsuit, which challenged the legitimacy of the FDA’s recent expansions of the abortion pill. While not ruling on the merits of that case, the Court later ruled that the Plaintiffs did not have standing.

Today, abortion providers in multiple states are admittedly shipping the drugs “unlawfully” into states that prohibit them or restrict telehealth dispensing. In fact, abortion pills continue flooding into states that either restrict abortion or fully protect preborn children except when the life of the mother is at risk.

As such, states are struggling to enforce their own laws, forcing those states to appeal to the Supreme Court to trigger the federal Comstock Act’s enforcement.

As Live Action News previously documented, Missouri, Kansas and Idaho filed a lawsuit on October 14, 2024, in Amarillo, Texas, asking the Courts to weigh in on the expansion of the abortion pill. The plaintiffs in State of Missouri; State of Kansas; State of Idaho v. FDA are also requesting that the Courts enforce the Comstock Act and grant them the ability to “vindicate [their] sovereign, quasi-sovereign, and proprietary interests, including [their] interests in protecting [their] citizens.”

Attorney Jonathan F. Mitchell of Mitchell Law PLLC, counsel for the Cities of Hobbs and Clovis in the current New Mexico case, reiterated a possible Supreme Court challenge.

“We are thrilled with the New Mexico Supreme Court’s ruling. This is the first court to hold that an ordinance requiring compliance with the federal Comstock Act prohibits the shipment and receipt of abortion-related paraphernalia in states where abortion remains legal,” Mitchell said. “We look forward to litigating these issues in other states and bringing the meaning of the federal Comstock Act to the Supreme Court of the United States.”

On his social media accounts, Mark Lee Dickson, Founder of the Sanctuary Cities for the Unborn Initiative, said he was “thrilled” with the decision as well, emphasizing that he does not think the New Mexico Supreme Court realizes “what they have done,” suggesting this case could lead to a Supreme Court showdown.

“These ordinances remain on the books and it remains a federal crime for anyone to ship or receive abortion-related materials in these cities and counties, or anywhere else in New Mexico. I look forward to more cities and counties throughout New Mexico recognizing the Comstock Act in their jurisdiction,” Dickson wrote. “New Mexico citizens who are interested in seeing their cities and counties pass ordinances doing as much as they can to protect mothers and their unborn children are encouraged to sign the online petition at sanctuarycitiesfortheunborn.com/online-petition.”

Tell President Trump, RFK, Jr., Elon, and Vivek:

Stop killing America’s future. Defund Planned Parenthood NOW!