{"id":288413,"date":"2023-04-01T16:16:22","date_gmt":"2023-04-01T21:16:22","guid":{"rendered":"https:\/\/www.liveaction.org\/news\/?p=288413"},"modified":"2023-04-01T16:16:22","modified_gmt":"2023-04-01T21:16:22","slug":"new-mexico-supreme-court-stay-sanctuary-battles","status":"publish","type":"post","link":"https:\/\/archive.liveaction.org\/news\/new-mexico-supreme-court-stay-sanctuary-battles\/","title":{"rendered":"New Mexico Supreme Court issues ‘stay’ as ‘Sanctuary for the Unborn’ battles intensify"},"content":{"rendered":"
<\/div>

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.<\/em><\/p>\n

When New Mexico cities and counties began passing \u201csanctuary for the unborn<\/a>\u201d ordinances, it was known that the ordinances would eventually be challenged.<\/p>\n

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<\/a> 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).<\/p>\n

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.<\/p>\n

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\u2019 attorneys and the Attorney General of New Mexico.<\/p>\n

On February 7, Roosevelt County responded<\/a> to Attorney General Torrez, followed by a response<\/a> from Lea County. A week later, on February 14, Alliance Defending Freedom submitted an amicus brief<\/a> 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<\/a> to the Petition for Writ of Mandamus, penned by Jonathan F. Mitchell. On March 6, AG Torrez replied<\/a> to the responses given by the municipalities.<\/p>\n

In his response, AG Torrez argued:<\/p>\n

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. <\/em><\/p>\n

None of this depends on federal law. Respondents cite the federal Comstock Act, but a local government\u2019s authority to legislate depends on state, not federal, law; nor does federal law limit this Court\u2019s power to prevent a local government from legislating in a manner that violates the New Mexico Constitution.<\/em><\/p>\n

Prior to Torrez\u2019s response, Roosevelt County had argued, \u201cThe 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.\u201d<\/p>\n

Roosevelt County Attorney Michael Garcia continued, \u201cRoosevelt 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. \u00a7 1461 and \u00a7 1462(c), which are currently in effect.\u201d<\/p>\n

\"Walgreens<\/a><\/p>\n

Lea County made the same arguments. Lea County Attorney John Caldwell wrote, \u201cIn 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.\u201d Caldwell continued, \u201cEach 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.\u201d<\/p>\n

Clovis and Hobbs had also argued the same. Attorney Jonathan F. Mitchell wrote, \u201cNone of the ordinances ban abortion. They merely require compliance with the abortion-related provisions of 18 U.S.C. \u00a7\u00a7 1461\u20131462, which (on their face) prohibit the shipment and receipt of abortion-related materials.\u201d<\/p>\n

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\u2019s Office of Legal Counsel Opinion<\/a> on 18 U.S.C. \u00a7\u00a7 1461\u20131462, which had been released on December 23, 2022 \u2013 after the City of Hobbs and Lea County had passed their ordinances.<\/p>\n

According to Mitchell, the OLC Opinion adopted \u201ca narrowing construction of 18 U.S.C. \u00a7\u00a7 1461\u20131462, 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.\u201d 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:<\/p>\n

The ordinances have teeth only if the OLC opinion is wrong and 18 U.S.C. \u00a7\u00a7 1461\u20131462 mean what they say. If (and only if) this Court rejects the OLC opinion and interprets 18 U.S.C. \u00a7\u00a7 1461\u20131462 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\u2019s rejecting the interpretation of 18 U.S.C. \u00a7\u00a7 1461\u20131462 in the OLC opinion.<\/em><\/p>\n

And if this Court interprets 18 U.S.C. \u00a7\u00a7 1461\u20131462 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 \u201cthe supreme Law of the Land,\u201d and \u201cthe Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.\u201d <\/em><\/p>\n

That means any supposed right under the state constitution must yield to the requirements of a \u201csupreme\u201d 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.<\/em><\/p>\n

In regards to Attorney General Torrez\u2019s request for a stay, Mitchell had argued that, \u201cCourts cannot \u2018stay\u2019 statutes or ordinances; they can stay only \u2018some action\u2019 taken by the cities or counties.\u201d<\/p>\n

Mitchell then asked the question, \u201cSo what is the \u2018action by the respondent[s]\u2019 that the Attorney General wants this Court to \u2018stay\u2019?\u201d<\/p>\n

Speaking of Roosevelt County\u2019s ordinance, Mitchell wrote:<\/p>\n

Roosevelt County doesn\u2019t even enforce section 2 of its ordinance, so a \u2018stay\u2019 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 \u2018stay\u2019 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 \u2018stay\u2019 or writ directed at the respondents. So just how would this Court enforce the \u2018stay\u2019 or writ of mandamus when private citizens\u2014who cannot be bound by anything that happens in this proceeding\u2014invoke the Roosevelt County ordinance to sue non-compliant abortion providers, who are likewise strangers to this litigation? Is this Court supposed to hold the \u201cordinance\u201d in contempt if a private litigant sues under it after the Court issues its \u2018stay\u2019?<\/em><\/p>\n

Mitchell then went on to address the other ordinances:<\/p>\n

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\u2014because (so far) everyone in those municipalities is complying with the law. So at the risk of sounding repetitive: Just what exactly is the \u201caction by the respondent[s]\u201d that this Court is supposed to \u2018stay\u2019?<\/em><\/p>\n

Mitchell closed by stating, \u201cThe Attorney General is living in a parallel universe where the judiciary acts as a Council of Revision rather than a court\u2014and is somehow empowered to act directly on legislation by formally suspending or revoking it in an act akin to an executive veto . . . A \u2018stay\u2019 of an ordinance is an oxymoron, and so is a \u2018writ of mandamus striking down these ordinances.\u2019\u201d<\/p>\n

Mitchell accused AG Torrez of \u201cchanneling Justice Sotomayor\u2019s delusional claim in Whole Woman\u2019s Health v. Jackson that courts can somehow \u2018enjoin\u2019 laws themselves, rather than the individuals or entities charged with enforcing those laws.\u201d<\/p>\n

While the New Mexico AG was doing everything in his power to push an illegitimate \u201cstay\u201d of the ordinances and dodge the federal statute question before him, the NM Legislature introduced House Bill 7, a bill entitled, \u201cthe Reproductive and Gender-Affirming Health Care Freedom Act\u201d \u2013 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.<\/p>\n

Following this action, on March 31, 2023, the New Mexico Supreme Court granted<\/a> the Attorney General\u2019s request for stay and ordered that the county and city ordinances at issue \u201care hereby STAYED and shall have no effect until further order of the Court.\u201d The order called for responses from all parties demanding that their briefs answer the question, \u201cWhat 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?\u201d<\/p>\n

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<\/a> similar to the ordinances which were passed by Eunice and the four New Mexico governments which were sued.<\/p>\n

Did you know that as little as $10 a month is enough to reach more than 3,000 people with the truth about abortion that no one else is telling them? Click here to start saving lives 365 days a year.<\/strong><\/i><\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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 \u201csanctuary for the unborn\u201d ordinances, it was known that the ordinances would eventually be challenged. And so they were: On Thursday, January […]<\/p>\n","protected":false},"author":706,"featured_media":288422,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false},"categories":[7077],"tags":[],"yoast_head":"\nNew Mexico Supreme Court issues 'stay' as 'Sanctuary for the Unborn' battles intensify<\/title>\n<meta name=\"description\" content=\"\u201cThe AG is living in a parallel universe... 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