imageAlbuquerque voters will today decide the fate of an initiative that would ban abortions past 20 weeks in their city.

Should the ban pass, a lawsuit to block it is certain. What happens after that is anything but. New ground in the fight to stop abortion is being broken.

What sets ABQ’s 20-week abortion ban apart, of course, is it’s a local, not state ban. Thirteen states have now passed similar bans. Three are currently enjoined as they work their way through the courts.

ABQ’s ban could certainly be sued on constitutional grounds, since critics claim 20-week abortion bans violate Roe/Doe principals of unrestricted abortion access before viability and “health” exceptions after.

But as to ABQ’s legal right to enact a ban as a local municipality, the picture looks rosier, at least according to, of all places, The American Prospect, a liberal journal. The last paragraph is particularly interesting:

[I]n most states, municipalities don’t have the power to enact such sweeping laws. New Mexico is an outlier in this regard…. [I]n most places, state law supersedes local law; if a state permits abortion before a certain point in pregnancy, cities can’t meddle with that standard….

But the quirks of New Mexico law make it harder to argue that Albuquerque lacks the authority to prohibit abortion after 20 weeks. That’s bad news for the women of New Mexico, not to mention the future of late-term abortion, because it means the law would be less likely to be thrown out on a technicality….

Most states wouldn’t have allowed municipalities this kind of leeway in the first place. But New Mexico has a provision in its state constitution that allows for “home rule,” giving populous cities like Albuquerque and Santa Fe an unusual level of self-governance. “The only other limitation — apart from geography — is that cities cannot pass an ordinance where the state has exclusively claimed jurisdiction and they are not allowed to enact ordinances that are inconsistent with state law,” says Dave Pederson, general counsel for the New Mexico Attorney General. The state legislature has not claimed exclusive jurisdiction over abortion; in fact, according to Pederson, it only has one limitation on abortion on the books, a law banning a particular procedure called partial-birth abortion.

Until a few months ago, the New Mexico legislature’s laissez-faire attitude toward abortion was a good thing for pro-choice advocates. But now the state’s obvious lack of interest in legislating abortion policy could undercut the argument that its cities can’t legislate on a subject as broad as abortion. It’s hard to contend that an Albuquerque ordinance is stepping on the state of New Mexico’s toes when state law on the subject is almost completely nonexistent.

Given enough time, the plans of abortion zealots always seem to boomerang. Then again, this is guaranteed. Quoting a wiser person than me: “That’s what happens: mischief backfires; violence boomerangs.” His son agreed: “What a bad person plots against the good, boomerangs; the plotter gets it in the end.”

But I digress. agrees with The American Prospect’s assessment:

In New Mexico, courts have broadly interpreted cities’ powers and the Albuquerque initiative seems destined to stand or fall on constitutional grounds.

Meanwhile, The American Prospects rebuffs the idea that the ABQ effort might spark a wave of attempts to enact abortion restrictions in communities across the country. TAP thinks the situation in New Mexico is rare. This remains to be seen.

But already the other side’s fears of a spark are being realized. reported November 18 that a countywide 20-week abortion ban may next be attempted a little south of Albuquerque:

Jackie Farnsworth, representing the Valencia County Right to Life Chapter, presented a multipage petition she said contained more than 1,000 signatures of county residents in support of the ban.

The discussion item for the consideration of a “pain capable unborn child protection ordinance” was placed on the agenda by Valencia County Commissioner Lawrence Romero….

Assuming the Albuquerque ban will pass, Farnsworth said that “huge business” will be looking to relocate to the next closest place to the airport — Valencia County, to the south….

In theory, at least in New Mexico, citizens could city by city, county by county, enact pro-life restrictions around liberal state legislators. How cool that would be – government by the people, of the people, and for the people. Such a novel concept.

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