Repealing New Mexio’s 1969 Ban on Abortion

This war will probably never be over. The forces of “Pro-Life” and “Pro-Choice” represent a cultural and political rift that could well define American society for the next half century or more. It’s a war of attrition. And the issue of abortion is only one of many catalysts. At its center of gravity is a degenerate gender caste system ruled by a relentless and ruthless patriarchy whose abusive control has become intolerable to a growing majority of Americans.

But 2021 in New Mexico has experienced a major, albeit I’m sure temporary, victory for pro-choice advocates. An unenforceable law banning abortion here, a law designed to intimidate and unsettle medical professionals and feminist advocates and others by “felonizing abortion,” has been repealed some 52 years after its passage in 1969. The NM State Senate voted to do so three weeks ago in a 25-17 decision. And the New Mexico House voted 40-30 last week to repeal. The governor signed the bill last weekend.

The ban became unenforceable in 1973 when the U.S. Supreme Court ruled in Roe v. Wade that a Texas law banning abortions was unconstitutional. A woman’s right to end a pregnancy is based, the Court ruled in a 7-2 vote, on a woman’s right to personal privacy, and later on her right to liberty, without excessive government restrictions. The Court said its decision was grounded in the Ninth and Fourteenth Amendments, which guarantee, respectively, that people retain rights that are not laid out in the Constitution and that women should not be, because of their gender, deprived of due process of law by a universal ban on a choice that they have a constitutional right to make.

Anti-abortion legislation comes from the segment of American society that leans toward, and is often in outright sympathy with, misogynist sentiments and philosophies. Abortion bans represent a climate of opinion that values the “potential” humanity of fetuses over the actualized humanity of fully realized human beings who happen to be women. Such laws demonstrate a categorical hatred and diminishment of women in a most undeniable form.

Roe v. Wade is an anti-misogynistic Supreme Court ruling that acknowledges a woman’s basic rights to self-determination as protected under the Constitution. It declares that a fetus is not a fully formed human being, but a “potential life” that does not have constitutional rights of its own, and whose rights do not supersede the constitutionally protected rights of the mother. Roe v. Wade is not “pro-abortion.” It is a decision that says a woman is a human being whose liberty and privacy are protected by law, just as a man’s are. But Roe v. Wade does not leave a fetus unprotected, either. During the third trimester, for instance, government may regulate or even ban abortion to protect the potential life of the fetus, except when abortion is necessary to protect the life or health of the mother.

Opposition to Roe v. Wade implies that one considers the life or health of the mother to be worth less than the potential life of the fetus. There really is no other way to read it.

New Mexico’s repealed abortion ban was considered in its day to be among the more liberal such statutes in the country. In 1969, most every state had some kind of anti-abortion law. While New Mexico’s law made “committing criminal abortion” a felony, it did permit abortion if pregnancy “is likely to result in the death of the woman or the grave impairment of the physical or mental health of the woman” requesting the procedure. It is also permitted if “the child probably will have a grave physical or mental defect;” or if the “pregnancy resulted from rape” or “incest.” A “special hospital board” of two licensed physicians “or their appointed alternates” who are “members of the medical staff at the accredited hospital where the proposed justified medical termination would be performed” would determine if the abortion fit the requirements of the statute. If the woman requesting the abortion had been raped, she would have to file a complaint with law enforcement and suffer the inevitable indignities and castigation of a public trial.

The U.S. Supreme Court has upheld Roe v. Wade against numerous attacks brought by state governments over the years. But in Maher v. Roe, the court held in 1979 that the state “has the authority to make a value judgment favoring childbirth over abortion and to implement that judgment by the allocation of public funds. It may, therefore, refuse to pay an indigent’s nontherapeutic abortion even though it subsidizes medical expenses related to pregnancy and childbirth under the State’s Medicaid program.”

In 1980 and 1994, the court upheld the federal “Hyde Amendment,” according to the United States Conference of Catholic Bishops, which at first restricted funding for abortions “to only those sought because the mother’s life was endangered.” Later it included funding for abortions sought because a “pregnancy was the result of rape or incest.”

What ending the ban on abortion in New Mexico implies is that should the U.S. Supreme Court overrule Roe v. Wade or weaken parts of it, states like New Mexico would have to create abortion bans that resonate at least in part with the feminist tone and moral tenor of the times, if they hope to become law. Even in wars of attrition, a step forward is, after all, a step forward.

*Nullius in verba: take nobody’s word for it