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News / Health / Health Wire

Activists aim for Supreme Court with local abortion bans in blue states

By Caitlin Dewey, Stateline.org
Published: March 5, 2023, 6:02am

Nearly 70 cities and counties across rural America have banned abortion in the past few years as part of a slow-burning conservative campaign to outlaw the procedure everywhere.

The ordinances, debated in states from California to Ohio, aim to prevent health clinics from offering abortions or allow private civilians to sue providers. Most of the bans have had no practical impact, passing in tiny towns without abortion providers such as Willey, Iowa — population 73 — or in states such as Louisiana and Texas, which already ban abortion.

But the movement’s architects, a pair of conservative activists best known for their work on the Texas Heartbeat Act — the first state abortion ban to rely on private lawsuits for enforcement — have recently expanded into states that allow abortion, including Montana, Nebraska and New Mexico.

In January, New Mexico Attorney General Raúl Torrez, a Democrat, petitioned the state Supreme Court to nullify ordinances in Hobbs, Clovis and two other jurisdictions. State Democratic legislators have introduced a bill called HB 7 that would prohibit local governments from interfering with access to any type of reproductive care.

The local ban activists say their ultimate goal is to set up legal battles between municipal and state governments that could land before a sympathetic U.S. Supreme Court.

“I’m kind of tempted to show up in Santa Fe and let those legislators know I double dog dare them to pass HB 7,” said Mark Lee Dickson, the founder of the activist group Sanctuary Cities for the Unborn and the primary spokesperson for the local ban movement. “Because I would love to see the Supreme Court rule in our favor and potentially see abortion de facto outlawed in every single state in America.”

The clash represents the opening of yet another front in recent battles between state and local governments. Municipal leaders also have defied their state counterparts on issues including gun rights, immigration and marijuana legalization.

The stakes could not be higher for abortion access, law experts and advocates say. The most recent city ordinances rely on an obscure federal anti-obscenity law called the Comstock Act, which courts have not applied to abortion since the 1870s. But federal courts have recently demonstrated a willingness to entertain even specious arguments that challenge abortion, said Mary Ziegler, a law professor at the University of California, Davis.

“This is a real threat,” said Ziegler, one of the country’s most prominent scholars of abortion law. “I’m not saying there’s a guarantee these city ordinances will work, but they’re premised on the composition of the courts. All you need is a plausible argument and judges who want to agree with you.”

While the municipal anti-abortion movement is still in its infancy, Ziegler said she worries that abortion advocates and politicians who support abortion rights sometimes have been too quick to dismiss it. Since 2019, Dickson and his partner, the former Texas solicitor general Jonathan F. Mitchell, have persuaded 65 cities and two counties to adopt the bans, almost entirely in sparsely populated rural areas.

At first, Dickson and Mitchell relied on a novel legal strategy — later enshrined in the 2021 Texas Heartbeat Act — that restricted abortion services within city limits by allowing private residents to sue doctors and the clinics that offered the procedure.

In the past six months, the pair also have lobbied cities to adopt ordinances based on the 19th-century Comstock Act, which prohibits the shipment of “obscene” and “lewd” materials, including instruments, drugs and information related to abortion and contraception. While the law has not been enforced in decades, it remains on the books.

Twenty Republican attorneys general have made a similar argument in attempting to block large pharmacy chains from dispensing abortion pills.

The municipal bans target abortion providers, not patients. They allow abortions in cases where the patient’s life is in danger, though they do not make exceptions for rape or incest.

By and large, they also have not prevented people from getting abortions, said Andrea Miller, the president of the National Institute for Reproductive Health, an advocacy group. The existing ordinances collectively cover a population of fewer than 1 million people — mostly in states that already restrict abortion, or in rural communities that lack access to reproductive health clinics, she said.

Of the 43 bans enacted between 2019 and 2021, 39 passed in Texas — where abortion access has been restricted for decades, and illegal since August 2022.

“Our primary focus now is putting those statutes in New Mexico, Colorado, Montana and other states that are perceived blue,” Dickson said.

Nowhere has this approach been more successful than in New Mexico, where three cities and two counties have passed abortion ordinances in the past four months.

The state makes an attractive target, said Ellie Rushforth, a reproductive rights attorney at the American Civil Liberties Union of New Mexico, because it is one of few states in the South or Mountain West to preserve open access to the procedure.

But in the state’s conservative pockets — such as the tiny town of Hobbs on the Texas border — public opinion often runs in the opposite direction. A record 150 people, many from outside the immediate area, attended an October city commission meeting to discuss a potential abortion ban there, said Sam Cobb, the city’s mayor.

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The ban, drafted by Dickson, Mitchell and a city attorney and passed Nov. 7, effectively prohibits the procedure by requiring most health care facilities to comply with the 1873 Comstock Act. In theory, that would prevent clinics from getting shipped any medication or medical device that can cause an abortion — potentially including drugs and devices that treat other conditions.

Facilities that do not comply risk losing their license to practice in Hobbs, though no abortion clinics currently operate in the city and the ban doesn’t apply to its two hospitals. City officials did not consult those hospitals or any other local health care providers before adopting the ordinance, Cobb said.

“You need to realize that our commission chambers hold 150 people, and it was standing room only,” he added. “What we felt as a community, and how I felt personally, is that there was overwhelming support for the ordinance.”

But whether Hobbs and other cities can regulate abortion is — intentionally — up for debate. Dickson’s organization is counting on state governments to challenge the bans, he said.

The strategy could prove costly for local governments, which may have to spend taxpayer money to defend losing ordinances, said Rushforth, of the ACLU of New Mexico. Mainstream legal experts, including Ziegler, the UC Davis professor, generally agree that Dickson and Mitchell’s legal theories strain traditional interpretations of both federal laws and local powers.

Since September, the attorneys general of California and Minnesota have issued stern warnings to cities considering the bans, informing them that such restrictions exceed local authority and conflict with state constitutions. On Jan. 23, New Mexico Attorney General Torrez went a step further, petitioning the state Supreme Court to nullify ordinances in Hobbs, Clovis and two other jurisdictions.

In a legal opinion last December, the U.S. Justice Department also advised that the federal law at the heart of the new abortion ordinances — the Comstock Act — does not apply to prescribed abortion medications.

“It’s no surprise they’re trying to hearken back to the 1800s to prevent access to abortion care,” said Miller, of the National Institute for Reproductive Health. “But the Comstock Act has long been considered outdated, and the Department of Justice has come out and made very clear that, as the entity that interprets and implements federal statutes, they don’t believe it applies to abortion.”

The New Mexico House last week passed a bill that would prohibit local restrictions on abortion access. The bill is designed to guarantee equal health care access across the state, said state Rep. Linda Serrato, a Democrat and one of the co-sponsors, and is expected to pass along party lines. Democrats control both chambers of the legislature, and Democratic Gov. Michelle Lujan Grisham has made abortion access a primary issue of her administration.

Abortion rights groups say they also are mobilizing supporters in New Mexico and around the country to push back against local abortion ordinances. Cities in Colorado, Florida, Minnesota, Montana and Nebraska have recently abandoned or voted down proposed bans, according to the Planned Parenthood Federation of America.

Some rejections have been forceful.

In Mason, Ohio, residents voted out two supporters of that city’s anti-abortion ordinance in a 2021 election, replacing them with new councilmembers who, in their first session, repealed the ban on an emergency basis.

Across the country in San Clemente, California, a proposed abortion ban failed to attract support even from conservative politicians.

“It appears to me to be a document that could have been written by a Taliban tribunal,” San Clemente Mayor Gene James told The Los Angeles Times in August, “and I’ll say that as a conservative, pro-life Republican.”

But the long-term threat to access remains, Ziegler warned, regardless of public opinion or prevailing legal interpretations. With a conservative supermajority on the U.S. Supreme Court, she said, policymakers must weigh the risk that any crackdown on municipal laws could jeopardize abortion rights in other places.

For New Mexico state Rep. Serrato, the calculus is not a difficult one.

“I know there are always going to be tactics,” she said. “But you can’t have a hodgepodge of regulations for health care access.”