Preemption of Power

In a January 9, 2025 decision, the New Mexico Supreme Court considered whether county and municipal authorities (Authorities) may enact and enforce local ordinances (Ordinances) to regulate abortion, clinics and providers. 

For context, the regulation of abortions became a state issue with the overturning of Roe v. Wade, 410 U.S. 113 (1973) by the United States Supreme Court in its consideration and issued opinion in the Dobbs v. Jackson Women’s Health Organization¸597 U.S. 215 at 302 (2022). As expected, conflicts have resulted in actions taken by various local authorities, requiring a resolution under State law.

In the matter before this Court, four (4) Authorities had enacted wide-sweeping prohibitions in 2023 “on the mailing or receipt of any abortion-related instrumentality” that may be in “compliance with federal law.” Additionally, three (3) of the Ordinances adopted by the Authorities also created a local licensing scheme for abortion clinics and providers, mandating compliance with the Comstock Act, 18 U.S.C. §§1461, 1462 and conferring sole discretion for licensure approval with the Authorities rather than the State.

The State of New Mexico (State) sought to restrain the Authorities enforcing the Ordinances and to also invalidate the Ordinances. The State argued that the Ordinances were preempted by the Equal Rights Amendment found in the State Constitution, as the “singling out abortion for burdensome regulation and civil liability” comprised a sex-based classification. The State further asserted the right to abortion was protected under State due process, privacy, and inherent rights clauses.

The Authorities argued that the access to reproductive healthcare was not hampered, given care could still be sought more than 200 miles away from the Authorities. However, no abortion clinics or providers were operating at the time, and the State argued this created a chilling effect and created a need for a prompt resolution. The Court also was made aware that similar ordinances had been enacted in other local jurisdictions in the state, making the resolution by the Court necessary to “prohibit unlawful or unconstitutional official action” and to address any “encroachment on the Legislature’s authority.”

This Court highlighted that the Reproductive and Gender-Affirming Health Care Freedom Act (Act), NMSA 1978 Section 24-34-1 to -5(2023) preempted the Ordinances, given clear conflict with the Act. The Ordinances also conflicted with the State Medical Practice Act, the State Health Care Code, and the due process provisions of the Uniform Licensing Act. The passing of the Ordinances by the Authorities overstepped on the State Legislature’s authority directly, due to the conflict with these four state laws, the general applicability of the laws across the state and all local jurisdictions, and the fact that the activities contemplated under the Ordinances “would be inconsistent with or antagonistic to that state law or policy.” Thus, the “preemption doctrine protects the Legislature’s plenary authority.” See N.M. Const. art. X section 5-6.

The Court declined to address the constitutional questions or other arguments of the local authorities, deeming such as “unnecessary to the resolution of the issues before this Court” and the decision of this Court rested solely on state grounds. See Michigan v. Long, 463 U.S. 1032, 1041 (1983).

Writ of mandamus granted to stay enforcement of the Ordinances.