When Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) were both overturned by the Supreme Court of the United States, the pre-Roe v. Wade Texas Criminal Abortion Statutes were no longer hindered from being enforced. These statutes, which protect unborn children from the moment of conception, led abortion providers like Whole Woman’s Health to announce their intent to close their facilities throughout Texas in Fort Worth, McKinney, Austin, and McAllen to relocate to Eastern New Mexico. What they were not expecting, however, was opposition from pro-life New Mexicans throughout Eastern New Mexico. 

 

Hobbs, New Mexico (pop. 41,604), Clovis, New Mexico (pop. 38,567), Lea County, New Mexico (pop. 76,432), and Roosevelt County, New Mexico (pop. 19,019) are the four political subdivisions that have passed ordinances provided by the Sanctuary Cities for the Unborn[i] initiative and they are not expected to be the last local governments to pass ordinances attempting to keep abortion out of their communities.

 

Hobbs, New Mexico

The “Ordinance Requiring Abortion Providers in the City of Hobbs to Comply with Federal Law”[ii] was first introduced on Monday, October 17, 2022. The city commission voted 7-0 in support of the ordinance’s introduction. On Monday, November 7, 2022, the city commission voted 7-0 for the final adoption of the ordinance. The passage of the ordinance made Hobbs the first city to pass a Sanctuary Cities for the Unborn ordinance in New Mexico and the fifty-second city to pass a Sanctuary Cities for the Unborn ordinance in the United States. 

 

The “Ordinance Requiring Abortion Providers in the City of Hobbs to Comply with Federal Law” does not allow a business license to be issued to an abortion provider within the city unless that provider agrees to comply with federal laws. Hobbs’ ordinance finds that federal law, in 18 U.S.C. §§ 1461-1462, prohibits the mailing or receiving of abortion-inducing drugs or abortion-related paraphernalia. 

 

The ordinance states, “It shall be unlawful for any person or licensed abortion clinic within the municipal boundaries of the City, or any employee or agent of an abortion clinic licensed by the City, to violate 18 U.S.C. § 1461 by using the mails for the mailing, carriage in the mails, or delivery of: Any article or thing designed, adapted, or intended for producing abortion; or any article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.” 

 

The ordinance continues, “It shall be unlawful for any person or licensed abortion clinic within the municipal boundaries of the City, or any employee or agent of an abortion clinic licensed by the City, to violate 18 U.S.C. § 1462 by: using any express company or other common carrier or interactive computer service for carriage in interstate or foreign commerce of any drug, medicine, article, or thing designed, adapted, or intended for producing abortion.”

 

In addition to requiring any person or licensed abortion clinic within the municipal boundaries of the City, or any employee or agent of an abortion clinic licensed by the City to comply with 18 U.S.C. §§ 1461-1462 it also made it unlawful for anyone to “engage in conduct that aids or abets the violations of 18 U.S.C. § 1461 or 18 U.S.C. § 1462.” 

 

Lea County, New Mexico

The “Ordinance Requiring Compliance of Federal Laws Governing Abortion”[iii] was first introduced on Thursday, November 3, 2022. The county commission voted 5-0 in support of the ordinance’s introduction. On Thursday, December 8, 2022, the county commission voted 5-0 for the final adoption of the ordinance. The passage of the ordinance made Lea County the first county to pass a Sanctuary County for the Unborn ordinance in both New Mexico and the United States as a whole. 

 

While the Hobbs Ordinance contains a licensing measure, the Lea County Ordinance does not. Lea County’s Ordinance requires everyone under the jurisdiction of the county to follow federal laws on abortion – specifically 18 U.S.C. §§ 1461-1462. The ordinance states, “It shall be unlawful for any person to violate 18 U.S.C. § 1461 by using the mails for the mailing, carriage in the mails, or delivery of: any article or thing designed, adapted, or intended for producing abortion; or any article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.” The ordinance continues, “It shall be unlawful for any person to violate 18 U.S.C. § 1462 by: using any express company or other common carrier or interactive computer service for carriage in interstate or foreign commerce of any drug, medicine, article, or thing designed, adapted, or intended for producing abortion.” Lea County’s ordinance also prohibits any person from engaging in conduct that aids or abets any of these acts. The penalty outlined in the ordinance is $300 for each violation.

 

Clovis, New Mexico

The “Ordinance Requiring Abortion Providers in the City of Clovis to Comply with Federal Law”[iv] was first introduced on Thursday, October 13, 2022. The city commission voted 6-0 in support of the ordinance’s introduction. On Thursday, November 3, 2022, the city commission voted 7-1 to table the ordinance. A vote to untable the ordinance took place on Thursday, December 1, 2022. The city commission voted 5-4 against untabling the ordinance. On Thursday, January 5, 2023, a second vote to untable the ordinance took place. The city commission voted 7-1 to untable the ordinance. The vote was followed by a 7-0 vote for the final adoption of the ordinance, with one city commissioner abstaining from voting. The passage of the ordinance made Clovis the second city to pass a Sanctuary Cities for the Unborn ordinance in New Mexico and the sixty-third city to pass a Sanctuary Cities for the Unborn ordinance in the United States. 

 

The “Ordinance Requiring Abortion Providers in the City of Clovis to Comply with Federal Law” does not allow a business license to be issued to an abortion provider within the city unless that provider agrees to comply with federal law regarding abortion. Clovis’ ordinance finds that federal law, in 18 U.S.C. §§ 1461-1462, prohibits the mailing or receiving of abortion-inducing drugs or abortion-related paraphernalia. The Clovis Ordinance is almost identical to the Hobbs Ordinance.

 

Roosevelt County, New Mexico

The “Ordinance Requiring Abortion Providers in Roosevelt County to Comply With Federal Law”[v] was first introduced on Monday, December 5, 2022. The county commission voted 3-1 in support of the ordinance’s introduction. On Tuesday, January 10, 2023, the county commission voted 4-1 for the final adoption of the ordinance.  The passage of the ordinance made Roosevelt County the second county to pass a Sanctuary County for the Unborn ordinance in both New Mexico and the United States as a whole. 

 

Roosevelt County’s Ordinance requires everyone under the jurisdiction of the county to follow federal laws on abortion – specifically 18 U.S.C. §§ 1461-1462. The ordinance states, “It shall be unlawful for any person to violate 18 U.S.C. § 1461 by using the mails for the mailing, carriage in the mails, or delivery of: any article or thing designed, adapted, or intended for producing abortion; or any article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.” The ordinance continues, “It shall be unlawful for any person to violate 18 U.S.C. § 1462 by: using any express company or other common carrier or interactive computer service for carriage in interstate or foreign commerce of any drug, medicine, article, or thing designed, adapted, or intended for producing abortion” as well as “Knowingly taking or receiving, from such express company or other common carrier or interactive computer service, any matter or thing described.” 

 

Roosevelt County’s ordinance also prohibits any person from engaging in conduct that aids or abets any of these acts. While Lea County’s ordinance was enforced by a penalty of $300 for each violation, the Roosevelt Ordinance is enforced through lawsuits by private citizens. The ordinance reads, “Any person, other than the state, its political subdivisions, including Roosevelt County, and any officer or employee or agent of a state or local governmental entity in this state, has standing to bring and may bring a civil action against any person or entity” in violation of these acts.

 

Why the New Mexico Ordinances are de facto Abortion Bans 

While it is true to say that the ordinances passed in the cities of Hobbs and Clovis, as well as the counties of Lea and Roosevelt, are not “explicit” abortion bans - the measures can be considered de facto abortion bans. By requiring compliance with federal laws on abortion prohibiting the mailing or receiving of any abortion-inducing drugs or abortion-related paraphernalia, the ordinances make it impossible for any abortion facility to function legally — even if they were to get their equipment or pharmaceuticals from elsewhere within the state. 

 

For this reason, the Sanctuary Cities for the Unborn Initiative does not hesitate in considering the two cities and two counties which have passed their ordinances requiring compliance with federal abortion laws to be “sanctuary cities for the unborn” and “sanctuary counties for the unborn” - even though those “sanctuary” phrases are also absent for the ordinances.  

 

The Effectiveness of the de facto Abortion Bans in Keeping Whole Woman’s Health Out of Southeastern New Mexico

In early July 2022, the Dallas Morning News reported about Whole Woman’s Health relocating from the state of Texas to the state of New Mexico. The story read, "Whole Woman’s Health did not specify a city for the New Mexico clinic but said officials are considering the southeastern part of the state. Hobbs, a city of around 40,000 a few miles from the Texas border, is in that region and around 400 miles from Dallas."[vi] 

 

In mid-September 2022, Whole Woman’s Health CEO Amy Hagstrom Miller shared with Newsweek, “We’d like to be in a border community because so many of our patients in Texas have been displaced. [Eastern New Mexico cities such as] Clovis, Hobbs and Roswell would be closer to Texas but those are small towns and there’s not a lot of real estate.” Miller continued, “Our first step is to get one clinic open, but the need may be greater than that. We’re trying to pay attention to where people are migrating to and where communities are most supportive of the work.” [vii]

In early October 2022, the Hobbs News-Sun reported on what many believed to be the new location of the Whole Woman’s Health abortion facility. According to the Hobbs News-Sun, “A local real estate agent familiar with the property told the News-Sun the property was under contract, but that contract fell through. The agent did not say who the potential buyer was, but anti-abortion activists insisted the potential buyer was Whole Woman’s Health doing business as Stirrups LLC.”[viii]

 

In late October 2022, Miller told Reuters, “Anti-abortion forces, now that they don’t need to pay attention to Texas and Mississippi and Alabama and Louisiana anymore, they’re starting to focus on what I call the ‘new frontier.’” While Miller told Reuters she was considering opening a facility in Clovis or Hobbs, she also expressed how the possibility of “sanctuary” ordinances were causing her to pause about relocating to Eastern New Mexico. Miller shared, “In this post-Dobbs era, where anti-abortion folks are emboldened, I want to be sure we’re in a place where our patients can be safe, where our doctors and our staff can be safe.”[ix]

 

In late December 2022, Miller told the Austin Chronicle, “We've been looking for the right spot in New Mexico and have looked in lots of different communities. We've encountered some resistance in some of the communities that are on the border that are closest to Texas.” Miller continued, “For us, taking on a lease is pretty difficult. Sometimes landlords get freaked out. They're afraid of attracting attention, or that other tenants don't want to share space if you have protesters. So, we've had to pivot towards a building purchase, ideally a freestanding building where we would be the only tenant.”[x]

 

During the same month, Miller also admitted to the Wall Street Journal that she was originally looking at “Hobbs and other towns close to the New Mexico-Texas border,” but instead settled on Albuquerque. Miller shared, “It became a calculus of let’s go to a place where we know we can be open, and we know we can be safe.”[xi]

 

Keeping Abortion-Inducing Drugs Out of CVS and Walgreens Pharmacies

While Whole Woman’s Health was the original concern, the New Mexico ordinances apply to pharmacies like CVS and Walgreens who have now announced[xii] their intent to distribute abortion-inducing drugs. If a CVS or Walgreens wishes to legally distribute abortion-inducing drugs at their Hobbs or Clovis locations they will have to apply for a license with each city and agree to comply with 18 U.S.C. §§ 1461–62 which the city commissions have found to “impose felony criminal liability on every person who ships or receives abortion pills or abortion-related paraphernalia in interstate or foreign commerce” recognizing all such acts to be “predicate offenses under the federal Racketeer Influenced and Corrupt Organizations (RICO) Act.”

 

If Walgreens or CVS distributes abortion-inducing drugs in the unincorporated area of Lea County or Roosevelt County, they would be in direct violation of the county ordinances. Such a violation in Lea County would cost the pharmacy $300 per violation, while such a violation in Roosevelt County would likely cost the pharmacies much more - especially since the Roosevelt Ordinance allows private citizens to file lawsuits against the pharmacy every time the pharmacy is found to be in violation of the ordinance. 

 

The Biden Administration and Grisham Administration Opposition to the de facto Abortion Bans 

On Thursday, November 3, 2022, while Reuters reporter Trevor Hunnicutt was aboard Air Force One, Hunnicutt asked White House Press Secretary Karine Jean-Pierre if the White House had any thoughts about the possibility of Clovis, New Mexico passing an ordinance banning abortions. Jean-Pierre responded, "We have been very clear about what MAGA extreme Republicans are trying to do when it comes to a woman's right to choose. They're trying to take that away, clearly, and in the most extreme ways."[xiii] 

 

After the Hobbs City Commission passed its ordinance on November 7, 2022, Governor Michelle Lujan Grisham immediately issued a statement condemning their action. Governor Grisham saw the measure as one coming from “out-of-state extremists working to further their special interest agenda” and as a “clear affront to the rights and personal autonomy of every woman in Hobbs and southeastern New Mexico.” Governor Grisham went on to say, “We will not stand for it. Reproductive health care is legal and protected in every corner of our state. Providers delivering health care have every right to establish a practice, and all women have the right to access medication abortion services, no matter where in New Mexico they call home.”[xiv] 

 

On Friday, December 23, 2022, the United States Department of Justice released an opinion[xv] on 18 U.S.C. §§ 1461–1462 from Christopher Schroeder, Assistant Attorney General from the Office of Legal Counsel. The opinion appears to be in line with President Biden’s pre-Dobbs commitment[xvi] of “abortion access in every zip code” and is recognized by the Sanctuary Cities for the Unborn Initiative as an attempt to discourage more governments from utilizing these federal statutes which Congress does not currently have the votes to repeal.

 

Conclusion

While Hobbs, Clovis, Lea County, and Roosevelt County are the first four political subdivisions in New Mexico to pass ordinances to keep abortion out of their jurisdictions, there have been many others throughout the United States who have gone before them. While not every government has faced a legal challenge, every government which has faced a legal challenge for one of these ordinances has survived with their abortion ban still in effect. 

 

New Mexico Attorney Mike Seibel, General Counsel for Abortion On Trial, shared, “The abortion industry is ruining the ‘land of enchantment.’ New Mexico is where I grew up and it is hard for me to see it become a place of death for so many people.” Seibel continued, “What gives me hope, however, are the thousands of New Mexicans who are banding together to keep out-of-state abortion extremists from setting up shop in their communities. While some leaders in our state have expressed hesitancy over what could happen if communities pass these de facto abortion bans, there are things far worse than communities getting sued - communities being aborted.” Seibel went on to say, “I am so thankful for Senator David Gallegos (R-Eunice) who took seriously the threat of Whole Woman’s Health locating to southeastern New Mexico and his willingness to work with Texans who had fought these threats before and had been victorious.”[xvii] 

 

In an early October 2022 article in the Hobbs News-Sun, Senator David Gallegos (R-Eunice) called out Whole Woman’s Health for not caring about women. Gallegos told the News-Sun, “If Whole Woman’s Health actually cared about women’s health, they would have kept their offices open in Texas. Texas didn’t outlaw women’s health, they outlawed abortion.” Gallegos continued, “It’s obvious (Whole Woman’s Health) are more concerned with the money they get from the abortion industry.”

 

Regardless of what actions Governor Grisham and the New Mexico Legislature take in the coming weeks, one thing is for certain: New Mexico is full of communities who do not want abortion in their communities and are willing to fight the Governor and the Legislature for an abortion-free New Mexico. 

 

New Mexico residents, as well as residents from other states which are feeling blue, are encouraged to visit the Sanctuary Cities for the Unborn website and sign the online petition at www.sanctuarycitiesfortheunborn.com/online-petition if they wish to see abortion kept out of their community. 

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[i] See www.sanctuarycitiesfortheunborn.com 

[ii] Ordinance Requiring Abortion Providers In the City of Hobbs to Comply with Federal Law, City of Hobbs, NM

[iii] Ordinance Requiring Compliance of Federal Laws Governing Abortion, Lea County, NM

[iv] Ordinance Requiring Abortion Providers In the City of Clovis to Comply with Federal Law, City of Clovis, NM

[v] Ordinance Requiring Abortion Providers in Roosevelt County to Comply With Federal Law, Roosevelt County, NM

[vi] Wilson, Rylee, “Whole Women’s Health Clinics to Close Texas Abortion Clinics, Relocate to New Mexico”, Dallas Morning News, July 6, 2022. Retrieved on January 16, 2022, www.dallasnews.com/news/politics/2022/07/06/whole-womans-health-to-close-texas-abortion-clinics-relocate-to-new-mexico/

[vii] Duin, Julia, “Abortion Clinics Rush to Relocate to Friendlier Border Towns as Bans Start”, Newsweek, September 13, 2022. Retrieved on January 16, 2023, https://www.newsweek.com/2022/09/16/abortion-clinics-rush-relocate-friendlier-border-towns-bans-start-1739169.html

[viii] Cunningham, Virginia, “Abortion Clinic Location Identified”, News-Sun, October 7, 2022. Retrieved on January 16, 2023, http://digital.olivesoftware.com/olive/apa/hobbsnews/sharedview.article.aspx?href=NHN%2F2022%2F10%2F07&id=Ar00100&sk=80256047&viewMode=text

[ix] Brooks, Brad, “New Frontline of US Abortion Battles Emerges in New Mexico”, Reuters, October 28, 2022. Retrieved on January 15, 2023,  https://www.reuters.com/legal/new-frontline-us-abortion-battles-emerges-new-mexico-2022-10-26/

[x] Hutchinson, Sara, “Abortion on the Border”, The Austin Chronicle, December 30, 2022. Retrieved on January 15, 2022,  https://www.austinchronicle.com/news/2022-12-30/abortion-on-the-border/

[xi] Calfas, Jennifer, “In States Where Abortion is Legal, Some Cities Look to Restrict Access”, Wall Street Journal, December 23, 2022. Retrieved on January 15, 2023, https://www.wsj.com/articles/in-states-where-abortion-is-legal-some-cities-look-to-restrict-access-11671749172

[xii] “Walgreens, CVS Plan to Start Offering Abortion Pills”, Reuters, January 4, 2023. Retrieved on January 15, 2023, https://www.reuters.com/world/us/walgreens-cvs-plan-start-offering-abortion-pills-2023-01-05/

[xiii] See //www.whitehouse.gov/briefing-room/press-briefings/2022/11/03/press-gaggle-by-press-secretary-karine-jean-pierre-en-route-albuquerque-nm/?fbclid=IwAR1wEvYkfgNAz724AO3cQIF4f-PvadkpSV6v4Kl72tVFMewM0osxfVcMaks

[xiv] See https://www.governor.state.nm.us/2022/11/07/gov-statement-on-hobbs-city-commission-vote/

[xv] See https://www.justice.gov/olc/opinion/file/1560596/download

[xvi] See www.whitehouse.gov/briefing-room/statements-releases/2021/01/22/statement-from-president-biden-and-vice-president-harris-on-the-48th-anniversary-of-roe-v-wade/

[xvii] Interview with Attorney Mike Seibel, January 15, 2023. 

[xviii] Cunningham, Virginia, “Abortion Clinic Location Identified”, News-Sun, October 7, 2022. Retrieved on January 16, 2023, http://digital.olivesoftware.com/olive/apa/hobbsnews/sharedview.article.aspx?href=NHN%2F2022%2F10%2F07&id=Ar00100&sk=80256047&viewMode=text

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