Last year, when newly elected New Mexico state Rep. Joanne Ferrary found out that her state still had an old law on the books criminalizing abortion, she was surprised. After all, in the years since the Supreme Court case Roe v. Wade legalized pregnancy termination nationwide, New Mexico has been known for its liberal abortion policies.
Following the 1973 Supreme Court decision, a state court declared most of New Mexico’s abortion ban unconstitutional based on the new federal precedent. But Brett Kavanaugh’s nomination to the high court has made a future in which Roe is weakened or even overturned increasingly likely. If that happens, lawmakers and advocates fear that abortion bans like the one in New Mexico could become enforceable once again.
Ferrary, 65, remembers the days before Roe, when friends had to make agonizing decisions about breaking the law to end their pregnancies.
“I’d heard horror stories of women who didn’t have access to safe or legal abortions and had died or suffered terribly,” Ferrary said in an email to Mother Jones. “I don’t want us to go back to those dark ages.”
That’s why Ferrary is leading the effort to repeal New Mexico’s criminal abortion law. She has sponsored bills to take it off the books twice before, without success. Next year, Ferrary thinks, will be different. Kavanaugh’s nomination has given the effort to repeal pre-Roe abortion bans new momentum. And with Republican Gov. Susana Martinez term-limited out of office this winter, pro-choice lawmakers will have their best chance in years to finally repeal the law. But first, they need to elect a governor who will sign the repeal.
The New Mexico law, passed in 1969, makes performing an abortion a felony except in cases of rape, incest, or fetal anomalies or when the pregnancy poses a serious risk to the woman’s health. Passed at a time when most states had laws outlawing abortion in every situation, no exceptions, New Mexico’s statute was actually one of the most liberal in the country. It quickly became outdated thanks to Roe, but because of the federal protections for abortion, lawmakers didn’t make repealing it a priority. Today, New Mexico is one of nine states that retain their near-total abortion bans from the years before Roe. The threat of a more conservative Supreme Court recently spurred Delaware and Massachusetts to repeal their bans, making New Mexico the only blue state on that list.
But repealing the New Mexico ban has proved to be a challenge, and that’s partly because many lawmakers in the state don’t want to touch the issue. In fact, even though New Mexico’s Legislature has a Democratic majority, few pro-choice bills of any kind have been introduced in recent history. On the flip side, anti-abortion bills haven’t gotten much traction, either, despite the occasional support from conservative Democrats. New Mexico hasn’t passed any abortion restrictions in 18 years.
“It’s a complex issue in New Mexico because we have a large Catholic population relative to other states,” said Lonna Atkeson, a professor of political science at the University of New Mexico. “We still have a lot of conservative Democrats here.”
In 2008 and 2009, state representatives proposed measures to repeal the abortion ban and establish a positive right to the procedure, but those bills quickly died. Before last year’s legislative session, abortion rights groups started organizing around repealing the ban, arguing that Democrats underestimate the support for abortion rights among their constituents. Still, a bill co-sponsored by Ferrary didn’t make much headway in a busy legislative session. Because abortion rights weren’t in immediate danger, it was easy to let other issues take precedence.
Earlier this year, Ferrary and another Democrat introduced the bill once again. But a quirk of state law meant the bill never made it to the House floor: In even-numbered years, New Mexico has a short legislative session in which only budget bills and bills chosen by the governor get a hearing. Gov. Martinez wouldn’t put the bill on the agenda. The pro-life governor has mostly avoided talking about abortion, a tactic that has angered pro-life groups who believe she’s not tough enough on the issue.
Despite that setback, some activists see an opening in this year’s governor’s race, because next session, Martinez won’t be in office. Ferrary, who’s up for reelection this year, plans to sponsor a bill repealing the abortion ban once again. Since it’s an odd-numbered year, the Legislature’s Democratic majority could ensure the bill is heard if they choose, no matter who the governor is. But they’d need a governor in office who would sign the measure.
The candidates to replace Martinez are Democrat Michelle Lujan Grisham, who supports abortion rights and is endorsed by Planned Parenthood, and Republican Steve Pearce, an abortion opponent endorsed by pro-life groups. Lujan Grisham, currently a Democratic congresswoman and the candidate leading the polls, has spoken out against abortion restrictions introduced in the House and pledged to fight for reproductive rights as governor.
“I support efforts to repeal New Mexico’s currently unenforceable and archaic laws that criminalize abortion and do not reflect our New Mexican values,” Lujan Grisham wrote in a statement to Mother Jones. “Overturning Roe v. Wade would most significantly impact poor women, women of color, and those in rural communities in New Mexico and across the country who don’t have resources to travel long distances or seek other means to access care.”
Pearce’s campaign didn’t respond to a request for comment on the legislation, but the Republican congressman has voted in favor of nearly every abortion restriction that has come before the House and co-sponsored a bill to ban abortion after 20 weeks. And this spring, according to the Santa Fe New Mexican, Pearce joined US Rep. Marsha Blackburn at the University of New Mexico to decry the school’s use of fetal tissue for medical research, a pet issue of Blackburn’s, the far-right abortion foe from Tennessee.
Pearce, said the paper, “is the most prominent politician in New Mexico today who is an outspoken advocate for restricting access to abortion.”
“Both candidates are going to use their platform a lot more than the current governor,” Elisa Martinez, executive director of New Mexico Alliance for Life, told them.
To prepare for a potential challenge to Roe, Planned Parenthood Votes New Mexico has been holding town halls throughout the state to mobilize voters and discuss how the abortion ban could be affected by the governor’s race. The group is trying to ride the momentum it gained in this year’s primaries, when progressives unseated two prominent conservative Democrats who had voted to limit abortion access. And as in Massachusetts, the group is hoping it can harness the energy created by Kavanaugh.
“Access to abortion is in imminent danger,” said Marshall Martinez, director of public affairs for Planned Parenthood Votes New Mexico. “State elections have never been more critical than they are right now.”