SANTA FE – State law precludes municipalities and counties in New Mexico from restricting abortion or regulating abortion clinics and providers, the state Supreme Court ruled today.

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.

"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 healthcare," the Court wrote in its opinion by Justice C. Shannon Bacon. "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."

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

"Our forbearances of the constitutional questions, however, should not be construed as commentary on their merit. Rather, we heed the canon of constitutional avoidance and refrain from deciding constitutional issues unnecessary to the disposition of this case."

The local ordinances attempted to restrict abortion access by purportedly requiring compliance with the federal Comstock Act banning the mailing of abortion-related materials. The attorney general filed a lawsuit in the state Supreme Court last year to invalidate the ordinances. The four cities and counties – the "Respondents" in the lawsuit – enacted their local laws after a ruling by the U.S. Supreme Court in 2022 ended the federal constitutional right to an abortion.

Roosevelt County's ordinance would have allowed any person other than a government employee to bring a civil lawsuit against someone and seek damages of at least $100,000 for each violation of the Comstock Act. Other ordinances also imposed penalties for violations of the federal law.
"While we decide this case under preemption doctrine, we strongly admonish Respondents for exceeding their authority under Article X, Section 6(D) of the New Mexico Constitution," the Court wrote, referencing a provision on local government powers. "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's Health Care Freedom Act was signed into law in 2023. It prohibits public bodies or individuals from interfering with access to reproductive or gendering affirming healthcare.

"While the Ordinances restate the Comstock Act's prohibitions, they do not, as Respondents claim, simply 'parrot' federal law," the Court wrote. "They go significantly beyond federal requirements by, among other things, purporting to regulate access to and licensure of so-called abortion clinics and physicians in a manner that prohibits or interferes with access to reproductive healthcare. Our Legislature's adoption of the Health Care Freedom Act is an express rebuke of Respondents' action. Indeed, the Legislature seemingly contemplated local dissent and ensured that any conflicting law would be expressly preempted by the Act."

Several of the ordinances authorized city or county officials to approve or deny licenses for abortion clinics and providers. The Court concluded that that the Medical Practice Act (MPA), the Medical Malpractice Act (MMA), the Uniform Licensing Act (ULA) and Health Care Code (HCC) implicitly preempt the local ordinances.

The MPA regulates the practice of medicine in the state and provides for the licensure of physicians. The MMA is intended to ensure access to health care by limiting malpractice claims against providers and helping to make liability insurance available to them. The ULA establishes licensing requirements for certain health care professionals, including nurses, physician assistants, and pharmacists. The HCC provides for the licensing of health facilities in the state.

The Court rejected arguments by the local governments that their ordinances constituted a lawful exercise of their police powers for the health and safety of local residents.

"Because Respondents' authority to regulate health care access and physician licensure is entirely preempted, Respondents' police powers in these areas are extremely limited," the Court wrote. "To the extent Respondents have any residual authority, they certainly have no power to supplant the will of the statewide electorate in favor of their own."