The Washington PostDemocracy Dies in Darkness

In blue New Mexico, antiabortion activists use small towns to push national ban

Activists recently organized an abortion rights rally in Clovis, N.M. (Adria Malcolm for The Washington Post)
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CLOVIS, N.M. — When the U.S. Supreme Court overturned Roe v. Wade last summer, Laura Wight, a liberal here in conservative eastern New Mexico, saw one small silver lining. Although abortion was illegal 10 miles away in Texas, she figured it remained safe in this blue state.

It hasn’t felt that way to her lately. On a recent afternoon, Wight was at a small rally in a strip mall parking lot, waving a giant pink flag that read “PRO-WOMEN, PRO-CHOICE” at passing pickups. Other participants were collecting signatures in hopes of overturning an ordinance passed last month by the city commission aimed at keeping abortion — in pill or surgical form — out of Clovis.

The measure is one of several adopted by New Mexico cities and counties near the Texas border in recent months, which vary in wording but are unified in intent: They aim to erect an invisible wall against abortion providers and medications, even though the state’s attorney general — who recently sued Clovis and three other jurisdictions — says they run afoul of New Mexico law.

“It is important to me that we never become a destination for abortion,” Michael Morris, the mayor of Clovis — a city of 38,000 nearly four hours from the nearest abortion clinic — said at a commission meeting in November.

Seven months after the Supreme Court ruling, the abortion debate has in some places gone hyperlocal, and nowhere do stakes feel higher than in border areas like this one. With abortions outlawed in Texas, New Mexico has become a nearby haven. The Mississippi clinic at issue in Dobbs v. Jackson Women’s Health Organization relocated to Las Cruces, just over the border from El Paso. Gov. Michelle Lujan Grisham (D) has pledged $10 million to build another clinic in that area.

But antiabortion activists see in New Mexico’s small-town rebellions a large-scale opportunity. Mark Lee Dickson, a Texas antiabortion activist who has instigated the ordinances in dozens of cities nationwide, says this part of the state — where flat ranchlands and oil fields are often likened to an extension of West Texas — is a launchpad for a legal argument that a 150-year-old federal statute bars abortion nationwide.

“We can see this in New Mexico, we can see this in Michigan, we can see this in California. This is possible everywhere,” Dickson said. “I do believe that this fight could end up changing the landscape of abortion in America.”

That argument is roundly rejected by New Mexico, not to mention the Justice Department. The department said in a recent legal opinion that the statute in question — the 1873 Comstock Act — does not prohibit most mailing of abortion medications or supplies, the claim on which the New Mexico ordinances rest.

The Mississippi clinic at the center of the fight to end abortion in America

In a lawsuit filed Jan. 23, New Mexico Attorney General Raúl Torrez asked the state Supreme Court to nullify ordinances in Clovis and three other jurisdictions and rule that abortion is protected under the state constitution’s Equal Rights Amendment, as well as its due process and inherent rights guarantees. Torrez, who made abortion rights a centerpiece of his 2022 campaign, also says the state alone has the power to regulate medical matters.

“This is fundamentally about state law and state constitutional rights, and those are questions that should remain in the hands of state supreme courts,” Torrez said in an interview, though he added that the post-Roe landscape is hardly so simple.

“What you’re seeing in New Mexico is something that’s going to be playing out all over the country, where rather than settling the question, what Dobbs has done is unsettle the entire country,” he said.

On the day Torrez sued, another New Mexico town, Eunice, passed its own antiabortion ordinance.

In Clovis, abortion suddenly became the subject of packed and emotional city commission meetings in the fall, when the idea of an ordinance was raised at the urging of Dickson and a coalition of local pastors.

The ordinance, like those in the city of Hobbs and Roosevelt and Lea counties, doesn’t outright ban abortion or clinics, though Dickson refers to it as a “de facto abortion ban.” Instead, it says licensed businesses — such as abortion clinics or pharmacies — must comply with federal law, including the Comstock Act.

That act banned the mailing of “obscene” materials, including birth control and abortion drugs or supplies. Courts have since said it does not prohibit the mailing of contraceptives sent with lawful intent, and the Justice Department contends this means it also does not apply to abortion medications, which can be used for other medical purposes. This week, 20 Republican state attorneys general said they disagreed.

The ordinances were penned with the help of Jonathan F. Mitchell, a former Texas solicitor general who wrote that state’s abortion ban and has offered to represent the New Mexico cities and counties pro bono. And they may already have had a chilling effect: Whole Woman’s Health, a national abortion provider that was forced to shut its Texas clinics, told Reuters that it was reconsidering the possibility of opening a facility in Clovis or Hobbs. Whole Woman’s Health did not respond to a request for comment.

Mark Lee Dickson paved the way for the Texas abortion ban, one small town at a time

Mary Ziegler, a law professor at the University of California at Davis, said the point of the measures is clear: to invite a confrontation that can end up in federal court, and ideally the Supreme Court, allowing conservative judges to weigh in.

“The antiabortion people are saying the reason no one really took seriously this argument about Comstock before was because of Roe, that it was kind of dead in the water,” Ziegler said. But, she added: “We live in a world now where I think if there’s a plausible reading of the Comstock Act that helps the antiabortion movement, you have to take seriously the possibility that that will be the reading the Supreme Court gives it.”

That is distressing to Wight and other abortion rights advocates in Clovis, who have argued at city commission meetings that in an area with no abortion clinics, a scarcity of women’s health providers and significant poverty, this was not a battle that needed to be waged.

“The real issue is that we just don’t have enough health care, period,” said Wight, a university library director. “Micro-focusing on something like this is just offensive.”

Wight formed a liberal group last summer, Eastern New Mexico Rising, that she said has brought other like-minded residents out of the woodwork. It spearheaded the effort to let voters weigh in on the ordinance via a mail-in ballot this spring. Kansas’s rejection of a ballot measure that would have removed abortion rights gives her hope that Clovis voters might do the same from the privacy of their homes, Wight said.

The group turned in the required signatures to the city clerk late last month, and a vote could come by March, Wight said, but she hopes the state legislature will deliver stronger abortion protections before then.

Lawmakers in 2021 repealed an old law that banned abortion, and Grisham last year signed an executive order that protects abortion providers and out-of-state residents who seek abortions in New Mexico. This year, Democrats have introduced bills that would codify abortion rights and prohibit localities from restricting the procedure.

Although the Clovis City Commission passed the ordinance, it was not a shoo-in.

It was first floated in early October after an antiabortion rally outside the library where the city commission meets. In public comments, proponents framed Clovis as a “front line” in the abortion wars, a conservative David up against the liberal Goliath of Santa Fe. A city councilman from Odessa, Tex., warned of a coming “invasion” of abortion-seekers from Texas.

But when one commissioner introduced the ordinance later in the month, Morris — who leads a prayer before each meeting and has emphasized his opposition to abortion — said he was “extremely upset” that it was being rushed. Another commissioner said seven lawyers she had consulted with urged caution. Morris read a letter from a prominent antiabortion state legislator, Rep. Rod Montoya (R), who warned of the potential for “hundreds of thousands, if not millions of dollars” in legal fees and judgments. The commission tabled the ordinance.

But the commission reintroduced the ordinance again in early January, at a meeting at which Morris suggested the body had been bullied into reviving it.

Waiting, Morris said at the meeting, “is not visible enough activity or tangible enough activity for many, and as a result we’ve all had to weather a fair amount of hateful criticism,” he said. “This has become a major distraction.”

The ordinance passed 7 to 0, with one abstention from Commissioner Lauren Rowley. In a phone interview, Rowley described herself as pro-life but said she thought it wiser to craft an ordinance after seeing what abortion-related bills are passed by the legislature.

Morris declined to be interviewed, citing litigation. In an email, he said: “New Mexicans that value life at all stages want their values to be represented by their city as well as the state we all love.”

Clovis resident Erick Welsh, who helped organize the pastors who pushed for the ordinance, said what happens in the capital is irrelevant. His city, he believes, wants an abortion ban.

“If our stance is that this thing is immoral and, even more important than that, it’s against God’s word, well then we have to take a stance that we are not going to budge,” he said. “We are Texas light. We’re more Texas than we are New Mexico. By and large, we are a pro-life community.”

Wight and her allies are not so sure. As about 40 of them demonstrated on the 50th anniversary of the Roe decision last month, passing trucks offered several supportive beeps and just a few aggressive honks. One man drove a black Audi through the parking lot and shouted, “You want to kill unborn babies? You are evil!”

But another man felt compelled to pull over, take the mic and deliver an impassioned case for abortion rights.

“This is part of a huge issue. And that is: One group of people trying to enforce their beliefs on everybody!” Dean Hardage, a 64-year-old electronics technician in a Dairy Farmers of America T-shirt, told the crowd.

Eastern New Mexico Rising had been collecting signatures in support of putting the ordinance on a ballot for days. At the rally, volunteers gathered about 250 more, Wight said.

“Is there anything to stop them from doing this stuff? Because I heard the governor was going to stop it. I’m sick and tired of it,” said Michelle Lafreniere, pulling up in a blue SUV to sign the petition. “I don’t think anybody should tell us what to do with our bodies.”

Andrew Brown, a 30-year-old small-business owner who described himself as a political independent, said he was signing for his 18-month-old daughter and his sister, who he said became pregnant after being raped.

“As my daughter gets older, I want her to have those options,” Brown said. “You don’t always get pregnant for the right reasons.”