Commentary:
As our New Mexico Supreme Court prepares to decide whether New Mexico cities can enforce anti-choice ordinances, two high-profile cases in other states teach us how cruelly states will enforce their war on women’s health choices.
In Texas, a pregnant woman learned not only that delivering the fetus she was carrying could endanger her health, but also that the fetus couldn’t survive. Her doctor would normally have treated her, but feared someone might apply Texas draconian law to prosecute her. Her client needed medical treatment; but providing it could earn the doctor life in prison.
A Texas court ruled she should be allowed to have the procedure; but Texas Attorney-General Ken Paxton appealed, warning area hospitals not to permit the abortion. The Texas Supreme Court blocked the order pending its decision.
A pregnant woman who sued Kentucky, claiming Kentucky’s near-total ban on abortions violates her rights to privacy and self-determination, has discovered that her embryo has no heartbeat. ACLU lawyers representing her said the bans inflict irreparable harm, jeopardize pregnant Kentuckians’ safety, and are “are an affront to the health and dignity of all Kentuckians,”
I sympathize with these women, who left their states for basic medical care; and with their doctors, trying to save patients’ lives and health but threatened with jail if they misread the law as permitting needed medical care. And consider the women in similar situations who can’t travel out-of-state.
The zealots who rushed to make these laws, insisted the laws wouldn’t interfere with medical care. Time has proven that those claims were nonsense. We’re getting a crash course in why the Roe v Wade decision was not only correct but wise.
Views change. In 1897, Plessy v Ferguson said Negroes could legally be made to sit away from the whites on trains. In 1954, Brown v Board of Education said “separate but equal schools” were an oxymoron: if you were the group being separated from the powerful folks’ children, your education was already undermined. Later, cases and laws improved the legal rights of women, gay folks, and others; but those gains are temporarily in eclipse.
In New Mexico, where abortion is completely legal, local governments’ efforts to sabotage women’s health face a heavy lift in our Supreme Court. New Mexico AG Raul Torrez argued that not only that the ordinances exceed the authority New Mexico law delegates to counties and municipalities, but that New Mexico’s Constitution demands equal protection and due process, such that a woman has a right to bodily autonomy.
Helped by Texas politicians, Hobbs, Clovis, and Lea and Roosevelt counties passed ordinances and argued that the (federal) 1873 Comstock Act provides authority. That law was used in 1916 to jail Margaret Sanger for disseminating birth control information. Men didn’t want their women knowing that sort of thing, so it was declared obscene. The law became a laughingstock, then was largely ignored, then became irrelevant with Roe v Wade. It seems a slim reed on which to base ordinances that could devastate people’s lives. No one could imagine the state supreme court would buy such silliness, but the zealots likely figure that the current U.S. Supreme Court might grab onto anything that fits the justices’ ideologies. (Anthony Comstock must be jumping around joyfully in his grave.)
But local governments, as creatures of the state, cannot enact penal provisions that contradict the state’s statutes. That’s fortunate; but let’s stay vigilant.
Peter Goodman's opinions are his own and do not necessarily reflect the views of KRWG Public Media or NMSU.