How a pastor is trying to revive a 150-year-old US law to ban abortion
When Amy Hagstrom Miller closed her Texas abortion clinic after Roe v Wade fell, the founder and CEO of Whole Woman’s Health wanted to reopen just across the border in New Mexico, to make care as accessible as possible to Texans who could no longer access it in their state. But anti-abortion advocates had other plans.
Hagstrom Miller was considering purchasing a building in the border town of Hobbs when, last November, the city passed an ordinance banning abortion and declaring itself “a sanctuary city for the unborn”. Earlier this year, the towns of Clovis and Eunice followed suit, as did the counties of Roosevelt and Lea. Hagstrom Miller and her team decided instead to open their new clinic in Albuquerque, a more progressive city about 200 miles from the Texas border, where they hope providers and patients will feel more welcomed. The clinic is currently awaiting approval of its licensing paperwork before officially opening.
There is no ban or gestational limit on abortion in New Mexico. These cities and counties near the Texas border are writing their own rules, joining a sanctuary movement that began in Texas – forcing New Mexicans and out-of-state patients visiting the state for care to travel to larger cities like Albuquerque and Las Cruces.
The New Mexico state legislature is on the cusp of passing a law that would strike down these ordinances. But pastor Mark Lee Dickson of Right To Life of East Texas says anti-abortion advocates would challenge the law in court, arguing that the federal anti-obscenity law at the heart of the ordinances should be enforced across the US. He hopes that the fight over local ordinances turns into a court battle that culminates in a national ban on abortion.
Similar fights between cities, states and the federal government could soon spread across the country. “Without a national law with the right to an abortion, jurisdictions are going to fight each other,” said Greer Donley, a law professor at the University of Pittsburgh. In a paper published last year, Donley and her colleagues predicted a slew of jurisdictional battles over abortion if Roe were to fall. The ordinance strategy playing out in New Mexico might prove to be among the first.
Reviving a 150-year-old law
In 2019, Waskom, Texas, became the first “Sanctuary City for the Unborn” after Dickson convinced the town’s all-male city council to pass legislation declaring it as such. To date, according to his organization’s website, “65 US cities and two counties have passed ordinances outlawing abortion.” Most are in Texas, but others are spread as far as Ohio and Iowa.
Before the supreme court overturned Roe last June, these ordinances were unenforceable – they didn’t actually make abortion illegal because Roe superseded them – and largely irrelevant, as no abortion clinics were based in the towns that passed them.
But now, with Texans no longer able to access abortion care in their home state, New Mexico’s border cities have become appealing alternatives for providers hoping to serve Texans in need – and targets for the sanctuary city movement.
What’s unique about the ordinances in New Mexico, unlike those introduced in Texas, is that they do not use language specifically banning abortion. Instead, they require locals to abide by a federal law which was passed in 1873, and is still on the books although it hasn’t been enforced in more than a century.
Nicknamed the Comstock Act after the postal inspector and anti-vice activist Anthony Comstock who advocated for them, the law bans the mailing, importation or transportation of “obscene or crime-inciting” materials including “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion”. Dickson says this prohibits the transportation of both abortion pills and “any surgical equipment used for an elective abortion” – effectively banning both medication and procedural abortions.
In a legal opinion issued last December, the justice department wrote that the Comstock Act does not apply to prescribed abortion medications, which are often sent in the mail and can be used for a variety of purposes, including managing miscarriages and stopping a hemorrhage.
Dickson disagrees. “Everyone’s ignoring these federal statutes,” he said. “In New Mexico, these cities and counties are requiring compliance to federal statutes, and we know that these federal statutes trump state laws and state constitutions.”
He says that if New Mexico tries to overturn these ordinances, anti-abortion advocates will take the fight to the courts. And he hopes that a conservative majority supreme court will see it his way and require the enforcement of the Comstock Act nationwide.
Hoping to set up a court battle, Dickson and his fellow anti-abortion advocates are aiming to pass anti-abortion ordinances across the country where abortion clinics are located. In Bellevue, Nebraska, where CareE Clinics for Abortion & Reproductive Excellence operates a location, Dickson says anti-abortion advocates have gathered enough signatures to petition the city council to vote on an ordinance. (Care is planning to open another location in Pueblo, Colorado, where the city council narrowly rejected a sanctuary ordinance in December.) Next, they hope to pass ordinances in Bristol, Virginia, where Bristol Women’s Health relocated from Tennessee last year, and Danville, Illinois, where a new clinic is trying to open.
‘Our focus is on buying time’
State leaders have taken a strong stand against the eastern New Mexican cities and counties that have banned abortion, advancing multiple strategies to overturn the bans.
On 23 January, New Mexico attorney general Raúl Torrez filed an extraordinary writ asking the state’s supreme court to invalidate the bans, saying that they violate the state constitution. A decision has yet to be issued.
“This, ladies and gentlemen, is not Texas.” Torrez said at a press conference. “Local communities are not empowered to regulate medical services. They are not empowered to regulate access to health care.”
On 25 January, Democratic state representatives introduced HB 7, the Reproductive and Gender-Affirming Health Care Freedom Act, a bill which would prevent public entities, including ??local municipalities, from restricting or discriminating against people seeking reproductive or gender-affirming health care. The bill is likely to pass this session with a Democratic majority in the legislature.
But Dickson says that HB 7 won’t stop the local bans. “Whatever the state passes doesn’t supersede these federal statutes,” he said. The state’s “problem really isn’t with our ordinances. Their problem is with the laws that Congress passed in 1873.”
Meanwhile, in eastern New Mexico, a coalition of progressive citizens have come together as Eastern New Mexico Rising, with the aim of collecting enough petition signatures to force Roosevelt county to put its abortion ban to a referendum vote. (The coalition attempted a similar petition in Clovis, gathering 447 signatures, but the city clerk ruled that only 238 of the needed 269 signatures could be verified.) Their aim is to repeal the ordinances so that locals can access abortion care if a court battle does end up dragging out.
“Our focus is just on buying our local people more time,” said Laura Wight, cofounder of Eastern New Mexico Rising. “The more time that we can buy a safety net for our local citizens so that they can get the medication they need and get the health care access they need legally, that’s what we care about.”
Hagstrom Miller hopes that local abortion funds and Whole Woman’s Health’s Wayfinder program, which helps patients schedule out-of-town appointments and access financial and logistical support, will be able to help patients reach their Albuquerque clinic, but she acknowledges that travel just isn’t an option for many patients – such as those with children, limited financial resources or facing domestic violence. According to the US census, New Mexico ranked as the third poorest state in the country in 2022.
“So many people are being forced to carry pregnancies against their will, or navigate doing their own abortion with pills” because they cannot travel, she said. “Our work still needs to be to restore access to safe abortion in all the communities at the federal level.”
