The question will go to Albuquerque voters on November 19 and was brought up by ballot initiative after anti-abortion activists collected enough signatures to put it on the ballot.
“It is important that voters know that federal and New Mexico constitutional limitations make a ban on any otherwise legal abortion unenforceable,” says Attorney General Gary King. “Additionally, recent federal court actions have struck down ordinances identical or similar to the proposed measure in Albuquerque.”
The opinion by the office of Gary King is not legally binding, but merely advice that was provided after Albuquerque city councilor Trudy Jones requested a formal opinion.
A press release from King provided portions of the letter sent to Jones in response to her request:
The grounds for striking down these statutes is rooted in Roe v. Wade…in which the U.S. Supreme Court declared that a pregnant woman has a constitutional right…to choose to terminate her pregnancy before “viability.” Viability is defined as the timeframe after which “the fetus…presumably has the capability of meaningful life outside the mother’s womb.”…Significantly, the Tenth Circuit Court of Appeals–which governs federal cases arising out of New Mexico–struck down a ban on abortions enacted in Utah because it unconstitutionally established viability at twenty weeks…overwhelming weight of judicial authority does not support enactments, like the…Albuquerque ordinance…we believe the…measure would not be legally enforceable.
Opponents of the proposed ordinance have already vowed a court challenge if voters pass the initiative.
Jones has said in recent days that the vote should not go forward because the ordinance would be constitutionally invalid.
Jones said she’s not taking a side on the abortion issue. She says she’s just worried about the cost of a special election if — in the end– the ordinance is determined to be unconstitutional.
Jones says the special election and potential legal challenges could cost the city more than a $1 million.
Anti-abortion activists vow to fight to have the question on the ballot.
There was already controversy when the city clerk was unable to count the signatures in time to place it on Tuesday’s municipal ballot. Instead, the city will hold a separate election.
City councilor Dan Lewis had originally suggested a mail-in vote for the anti-abortion ban. But a possible runoff in city council District 7 would mean an in-person citywide vote on the initiative.
Lewis criticized a previous mail-in vote as being costly.
Lewis says the city charter could be changed, to require more petition signatures or that a citizen-driven initiative gets tacked onto the next regularly scheduled election.
“There are unintended consequences to just about every policy that’s put into place,” he said. “I think the people of Albuquerque are going to have to consider this and decide whether it’s worth that kind of money that we don’t budget for to be able to do things like this.”
Those who oppose the initiative responded:
“We whole heartedly agree with the Attorney General and Albuquerque City Attorney that this ballot measure is unconstitutional and unenforceable,” said campaign spokesperson, Julianna Koob Esq., Legislative Advocate for Planned Parenthood of New Mexico. “Furthermore, we know this ballot measure would harm New Mexico women and families. These one-size-fits-all laws do not respect the real life circumstances women face when making the complex decision to have an abortion.”
“Although we are confident Albuquerque voters would reject this attempt to have the government interfere in a woman’s private medical decisions, we shouldn’t force this costly ballot measure on Albuquerque taxpayers when our state’s top lawyer says it violates federal and state law.” said campaign spokesperson Micaela Cadena, Policy Director for Young Women United.