Reproductive Rights Battle Moves From Courts to Statehouses


House Bill 51, sponsored in 2019 by Rep. Joanne Ferrary of Las Cruces, was the most consequential bill not to pass the New Mexico Legislature in the past two decades.

It would have removed a law then still on the books from 1969 that made it a fourth-degree felony for doctors to perform an abortion; and a second-degree felony if the mother died as a result of the procedure. After passing on a 40-29 vote in the House, the bill was defeated 24-18 in the Senate.

Eight Democrats, including some of the Senate’s most senior and highest-ranking members, voted against the bill. They included Mary Kay Papen, the Senate president pro temp., and John Arthur Smith, longtime chairman of the powerful Finance Committee.

A purge in the 2020 Democratic primary, which was directly tied to that vote, led to six of those eight senators losing their seats, dramatically remaking the Senate as a younger, more progressive institution.

That new Senate eagerly passed House Bill 7 in the opening days of the 2021 session, making New Mexico one of just six states, along with Washington, D.C., to allow abortions without restrictions as to how far along the pregnancy is, according to a report by the Guttmacher Institute.

Opponents of both bills argued that they were unnecessary, since everyone agreed that the 1969 state law had been nullified by the 1973 U.S. Supreme Court ruling in Roe v. Wade. These bills were stirring up painful, emotionally wrenching debates on issues that had already been decided, they claimed.

The recent leak of an upcoming U.S. Supreme Court ruling confirmed what anyone who listened to the oral arguments already knew. Roe v. Wade is not settled law in the eyes of our highest court, regardless of what was said during recent confirmation hearings. Reproductive rights are no longer guaranteed.

The U.S. Senate then put its impotence on full display with a reproductive rights bill in which Democrats couldn’t even hold their own members to achieve a tie, leaving dreams of someday breaking a filibuster seem ridiculous to even contemplate.

There will, undoubtedly, be renewed efforts to reform a Supreme Court that was created through pure power politics in the Senate and is now far more conservative than the nation. Recent leaked emails from the wife of Justice Clarence Thomas make clear how immersed in politics the court has become.

My suggestion would be term limits. But that’s a long-term solution. As for the immediate future, everything will soon be unsettled, with the fight moving from courts to statehouses.

This year alone, state legislatures in 46 states and the District of Columbia have introduced 1,991 different measures dealing with reproductive health, according to Guttmacher. Thirteen states have passed “trigger laws” that would ban abortion as soon as the court ruling is filed.

Lawmakers opposed to abortion won’t be satisfied with bans in their states. Those who earnestly believe abortion is murder of the unborn have no room for such compromises. New laws have already been passed, and more are on the way, seeking to restrict interstate travel for purposes of abortion.

With one of the most permissive laws in the nation, New Mexico would appear to be poised for huge growth in the abortion industry, with women seeking late-term procedures here that are not available elsewhere. I’m not sure that’s how most residents want to diversify our economy.

Democrats understandably took the 2020 election as a mandate on reproductive rights. Whether that includes abortions after viability of the fetus remains to be debated in future legislative sessions and decided in future elections.

Walter Rubel can be reached at [email protected]


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