In theatrical magic, misdirection is a form of deception in which the performer draws the audience's attention to one thing to distract it from another. Performer and writer, Nevil Maskelyne explained that misdirection “consists admittedly in misleading the spectator's senses, in order to screen from detection certain details for which secrecy is required.”

 

Unfortunately, we have realized too late that pro-lifers in New Mexico and beyond are being misdirected by ill-intentioned legislators. The repeal of New Mexico’s 1969 Abortion ban is not about protecting abortion in the event of Roe v Wade being overturned. The repeal’s true intention is to allow increased abortion access and ensure pregnancy centers participate in abortions. 

 

The New Mexico Abortion repeal bill is often inappropriately seen by pro-life people as legalizing abortion up to the date of birth, allowing infanticide, stripping protections of women, and allowing abortions without parental consent.  However, no matter if the repeal is passed or not, abortion in New Mexico will still be available up to the date of birth, infanticide can still happen as a consequence of later-term abortions, the same protections will be in place for women, and underage abortions without parental consent will continue.  

 

The pro-abortion advocates argue that the repeal is necessary in case Roe v. Wade is overturned. They falsely market it as necessary to maintain access to abortion in case the Supreme Court sends the legality of abortion back to the States. However, nothing could be further from the truth.  On February 8, 1973, the New Mexico Court of Appeals decided a case entitled State Of New Mexico v Strance, 506 P.2d 1217 (1973).(1) In that case, the Court held that “the decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available."

 

By this ruling,  the State decided that it is primarily a medical decision and not to be criminalized.  If a doctor abuses patients their only remedy is civil litigation and disciplinary actions.  Even if Roe v. Wade is overturned, the New Mexico State Supreme Court would have to overturn the 1973 decision as well. 

 

This leads us to ask ourselves why would abortion advocates desperately want to repeal this law if the State Court of Appeals decision has already protected abortion in New Mexico in the event of Roe being overturned?  We would argue that there are two major reasons for this need for repeal.  First, it allows for the possibility of expanded abortion access into rural areas, by stripping away conscience protections.  Second, it gives abortion advocates an avenue to attack pregnancy centers and sidewalk advocates.

 

The repeal of the abortion statutes also repeals the conscience protections that exist within New Mexico law.  Specifically, the bill repeals the section protecting healthcare workers “who objects to the justified medical termination on moral or religious grounds shall not be required to participate in medical procedures which will result in the termination of pregnancy, and the refusal of any such person to participate shall not form the basis of any disciplinary or other recriminatory action against such person.”

 

In reading the websites, journals, and articles for abortion advocates, it couldn’t be clearer that their intent to repeal the statute expands abortion by eliminating religious refusals.  NARAL Pro-Choice America claims refusal laws disproportionately affect low-income and rural women as “women who live far away from large cities may face challenges if the provider or institution closest to them refuses to provide care”. (2)   The Committee on Ethics of the American College of Obstetricians and Gynecologists (ACOG) has opined that physicians have a duty to either refer for abortion and other related procedures or, in the alternative, when such referral is not feasible ACOG states healthcare workers  “provide medically indicated and requested care regardless of the provider’s personal moral objections,” up to and including abortion.(3)  The Center for Reproductive rights has stated, “if states allow medical professionals to refuse to provide abortion care on grounds of conscience or religion, they must establish and implement effective systems to monitor the number and location of refusing medical professionals and to oversee compliance with laws and policies regulating the practice of refusals. They must also establish and implement meaningful enforcement procedures to address, sanction, and prevent noncompliance.” (4)

 

The repeal of the conscience clause protection accomplishes the stated objective of abortion advocates.  With the repeal, the only conscience protections for health care professionals are defined in the Uniform Health-Care Decisions, 24-7A-1 through 24-7A-18 NMSA (2020).(5) This provides pro-abortion advocates with the exact enforcement provisions they desire.  24-7a-7 (g) provides that healthcare workers who object on the basis of conscience must “provide continuing care to abortion-minded until the transfer can be effected” and immediately make all reasonable efforts to assist in the transfer of the patient that is willing to comply with an abortion decision.  This would make those workers an active participant in the abortion process.  If they fail to comply by refusing continued care or transferring the patient to a willing provider, 24-7-10 provides for a $5000.00 fine plus attorney’s fees and possible criminal, civil, or disciplinary sanctions.  In short, the repeal gives the abortion industry all the tools to expand abortion access to rural communities. 

 

In addition, the ACLU has publicly stated “through litigation, advocacy and public education, the ACLU works to defend religious liberty and to ensure that no one is either discriminated against or denied services because of someone else’s religious beliefs.”(6)  The repeal will give them access to litigate against pregnancy centers and sidewalk advocates.  The Uniform Healthcare Decisions Act broadly defines a healthcare provider as an individual licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession.  Many of the pregnancy centers and sidewalk advocates in New Mexico have medical directors, licensed nurses, and other medical providers.  The repeal will allow abortion-minded women who request abortions to sue if the pregnancy center does not transfer them to the abortion clinic.  Furthermore section 10 of the act states, “a person who coerces or fraudulently induces an individual to give, revoke or not give or revoke an advance health-care directive is subject to liability to that individual for damages”. Pro-abortion forces are eager to claim pregnancy center advice is fraudulent. Will this result in pro-abortion advocates and the ACLU attempting to litigate these claims? 

 

New Mexico, and nationwide, pro-lifers have been the victim of a “pocket trick”. They have been deceived by the abortion industry to think that a possible overturning of Roe v Wade will make a difference in New Mexico abortion law when it simply will not.  While they were getting the public to focus on late-term abortion, the repealed the conscience clause would allow for the biggest expansion of abortion access in New Mexico history and giving the pro-abortion advocates a tool to attack pregnancy centers and sidewalk advocates.  By the time this article prints, the repeal will pass and it will be up to organizations like Abortion on Trial, Thomas More Society and Americans United for Life to litigate protections under the First Amendment. 

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1. State Of New Mexico v Strance, 506 P.2d 1217 (1973)

 https://law.justia.com/cases/new-mexico/court-of-appeals/1973/961-1.html

2. NARAL Pro Choice America

 https://www.prochoiceamerica.org/issue/abortion-refusal-laws/

3. American College of Obstetricians and Gynecologists

https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2007/11/the-limits-of-conscientious-refusal-in-reproductive-medicine

4. The Center for Reproductive Rights

https://reproductiverights.org/document/medical-professional-refusal-to-provide-abortion-care-on-grounds-of-conscience-or-religion

5.  Uniform Health-Care Decisions, 24-7A-1 through 24-7A-18 NMSA (2020)

https://hscethics.unm.edu/common/pdf/uniform-healthcare-decisions-act.pdf

6. ACLU

https://www.aclu.org/issues/religious-liberty/using-religion-discriminate/end-use-religion-discriminate