Disclaimer: The views and opinions expressed in this article are those of the guest author and not necessarily of Live Action or Live Action News.
When New Mexico cities and counties began passing “sanctuary for the unborn” ordinances, it was known that the ordinances would eventually be challenged.
And so they were: On Thursday, January 23, 2023, New Mexico Attorney General Raul Torrez filed an Emergency Petition for Writ of Mandamus and Request for Stay in the New Mexico Supreme Court against the Board of County Commissioners for Lea County (ordinance passed December 8, 2022), the Board of Commissioners for Roosevelt County (ordinance passed January 10, 2023), the City of Clovis (ordinance passed January 5, 2023), and the City of Hobbs (ordinance passed November 7, 2022).
This action, however, did not stop the desire of other cities in New Mexico to move forward. Despite the lawsuit, the City of Eunice moved forward final passage of their ordinance on the same day the New Mexico AG filed suit.
Attorney Jonathan F. Mitchell offered to represent the cities and counties at no cost to the cities, counties, or taxpayers. Of those four entities, the Cities of Hobbs and Clovis took Mitchell up on his offer, while Lea and Roosevelt Counties decided to present their own defense. What resulted in the days following was a back-and-forth between the municipalities’ attorneys and the Attorney General of New Mexico.
On February 7, Roosevelt County responded to Attorney General Torrez, followed by a response from Lea County. A week later, on February 14, Alliance Defending Freedom submitted an amicus brief in support of the four government entities on behalf of New Mexico Family Action Movement, Right To Life Committee of New Mexico, and New Mexico Alliance For Life. On February 20, the Cities of Hobbs and Clovis gave their response to the Petition for Writ of Mandamus, penned by Jonathan F. Mitchell. On March 6, AG Torrez replied to the responses given by the municipalities.
In his response, AG Torrez argued:
New Mexico law is clear: local governments may not exceed the authority granted to them under state law. Political subdivisions of the state cannot act in a manner that conflicts with the New Mexico Constitution or state law. This Court, moreover, has the power to issue a writ of mandamus to prevent a local government from violating state law.
None of this depends on federal law. Respondents cite the federal Comstock Act, but a local government’s authority to legislate depends on state, not federal, law; nor does federal law limit this Court’s power to prevent a local government from legislating in a manner that violates the New Mexico Constitution.
Prior to Torrez’s response, Roosevelt County had argued, “The central legal issue in this case is preemption. But the question is not simply whether New Mexico law preempts the Roosevelt County Board of County Commissioners (Roosevelt County) from enacting an ordinance that calls for enforcement of federal law; the question is also whether federal law preempts the State from granting permission for what federal law expressly forbids.”
Roosevelt County Attorney Michael Garcia continued, “Roosevelt County’s Ordinance 2023-01 itself does not address the procedure of abortion or regulate how it may be performed in any way. Thus, by its terms, the Ordinance does not purport to regulate the medical aspect of the procedure, which the Attorney General argues is preempted. Rather the Ordinance addresses specifically the shipment of abortion instrumentalities by mail or by common carrier as prohibited by 18 U.S.C. § 1461 and § 1462(c), which are currently in effect.”
Lea County made the same arguments. Lea County Attorney John Caldwell wrote, “In passing County of Lea Ordinance No. 99, Lea County found that federal law imposes criminal liability on persons who violate 18 U.S.C. Sections 1461 and 1462. The State Constitution of New Mexico does not and cannot secure a right, privilege, or immunity to act in violation of federal statutes or to engage in criminal conduct as defined by federal law.” Caldwell continued, “Each member of a Board of County Commissioners takes an oath to support and defend the Constitution of the United States, which declares it and laws made in furtherance of the Constitution to be the supreme law of the land. Lea County’s ordinance does not address or regulate abortion. The ordinance addresses only the mailing, use of express or common carriers, or receiving of any item proscribed by 18 U.S.C Sections 1461 and 1462.”
Clovis and Hobbs had also argued the same. Attorney Jonathan F. Mitchell wrote, “None of the ordinances ban abortion. They merely require compliance with the abortion-related provisions of 18 U.S.C. §§ 1461–1462, which (on their face) prohibit the shipment and receipt of abortion-related materials.”
After criticizing the Attorney General for never mentioning that the ordinances merely require compliance with federal statutes, Mitchell went on to address the Biden Administration’s Office of Legal Counsel Opinion on 18 U.S.C. §§ 1461–1462, which had been released on December 23, 2022 – after the City of Hobbs and Lea County had passed their ordinances.
According to Mitchell, the OLC Opinion adopted “a narrowing construction of 18 U.S.C. §§ 1461–1462, declaring that the statutes apply only when the sender intends for the recipient to use the abortion paraphernalia in violation of state or federal law.” Mitchell went on to argue that if the OLC opinion is correct, the ordinances do nothing to restrict abortion access because abortion continues to remain legal in every single city and county in New Mexico – including the cities and counties which had passed these ordinances. Driving home his point, Mitchell continued:
The ordinances have teeth only if the OLC opinion is wrong and 18 U.S.C. §§ 1461–1462 mean what they say. If (and only if) this Court rejects the OLC opinion and interprets 18 U.S.C. §§ 1461–1462 in accordance with the enacted text, then the ordinances (and federal law) would make it nearly impossible for abortion providers to operate. Yet that scenario it is contingent upon this Court’s rejecting the interpretation of 18 U.S.C. §§ 1461–1462 in the OLC opinion.
And if this Court interprets 18 U.S.C. §§ 1461–1462 to prohibit all shipments and receipts of abortion-related materials, then it cannot simultaneously hold that the Constitution of New Mexico confers a right to act in violation of a federal criminal statute. Federal statutes are “the supreme Law of the Land,” and “the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
That means any supposed right under the state constitution must yield to the requirements of a “supreme” federal statute. The Attorney General never bothers to explain how this Court can recognize or enforce a state constitutional right to engage in behavior that federal law explicitly outlaws and criminalizes.
In regards to Attorney General Torrez’s request for a stay, Mitchell had argued that, “Courts cannot ‘stay’ statutes or ordinances; they can stay only ‘some action’ taken by the cities or counties.”
Mitchell then asked the question, “So what is the ‘action by the respondent[s]’ that the Attorney General wants this Court to ‘stay’?”
Speaking of Roosevelt County’s ordinance, Mitchell wrote:
Roosevelt County doesn’t even enforce section 2 of its ordinance, so a ‘stay’ directed at Roosevelt County does nothing to stop private citizens from suing non-compliant abortion providers . . . The Roosevelt County ordinance will continue to exist even if this Court issues the requested ‘stay’ or writ of mandamus, and any private citizen who sues under that ordinance is not a party to this proceeding and cannot be bound by any ‘stay’ or writ directed at the respondents. So just how would this Court enforce the ‘stay’ or writ of mandamus when private citizens—who cannot be bound by anything that happens in this proceeding—invoke the Roosevelt County ordinance to sue non-compliant abortion providers, who are likewise strangers to this litigation? Is this Court supposed to hold the “ordinance” in contempt if a private litigant sues under it after the Court issues its ‘stay’?
Mitchell then went on to address the other ordinances:
And if that were not enough, the Attorney General never alleges that the cities and counties are currently enforcing the ordinances against anyone, as there are no abortion providers located in any of these jurisdictions. None of the respondents have denied or withheld licenses, and Lea County has not enforced or threatened to enforce its $300 fines against anyone—because (so far) everyone in those municipalities is complying with the law. So at the risk of sounding repetitive: Just what exactly is the “action by the respondent[s]” that this Court is supposed to ‘stay’?
Mitchell closed by stating, “The Attorney General is living in a parallel universe where the judiciary acts as a Council of Revision rather than a court—and is somehow empowered to act directly on legislation by formally suspending or revoking it in an act akin to an executive veto . . . A ‘stay’ of an ordinance is an oxymoron, and so is a ‘writ of mandamus striking down these ordinances.’”
Mitchell accused AG Torrez of “channeling Justice Sotomayor’s delusional claim in Whole Woman’s Health v. Jackson that courts can somehow ‘enjoin’ laws themselves, rather than the individuals or entities charged with enforcing those laws.”
While the New Mexico AG was doing everything in his power to push an illegitimate “stay” of the ordinances and dodge the federal statute question before him, the NM Legislature introduced House Bill 7, a bill entitled, “the Reproductive and Gender-Affirming Health Care Freedom Act” – a bill which, among other things, prohibits counties and cities from restricting abortion access. This bill was passed by the legislature and on March 16, 2023, signed into law by Governor Michelle Lujan Grisham.
Following this action, on March 31, 2023, the New Mexico Supreme Court granted the Attorney General’s request for stay and ordered that the county and city ordinances at issue “are hereby STAYED and shall have no effect until further order of the Court.” The order called for responses from all parties demanding that their briefs answer the question, “What effect, if any, does House Bill 7, the Reproductive and Gender-Affirming Health Care Freedom Act, which was signed into law on March 16, 2023, have on this matter?”
As the Cities of Hobbs and Clovis and the Counties of Lea and Roosevelt see their case unfold before the highest court of New Mexico, the effort is far from over. On Tuesday, the town of Edgewood in Santa Fe County will be holding a workshop on an ordinance similar to the ordinances which were passed by Eunice and the four New Mexico governments which were sued.
