This 150-year-old law could save babies from abortion

Pro-life New Mexico attorney Michael Seibel just lost a case at the state Supreme Court, but he’s happy about it. “This is the best loss I’ve ever had in my life,” he said.

On Thursday, the justices ruled unanimously that state law preempts local ordinances in New Mexico cities and counties that invoke the Comstock Act, a federal law prohibiting the mailing of abortion pills and other abortion-related items. The high court decision blocks the local governments from enforcing their ordinances, which would protect babies from all abortions in the affected jurisdictions.

In that sense, the ruling is a loss for Seibel and others who defended the jurisdictions against a legal challenge from the state’s pro-abortion Attorney General Raúl Torrez. He counted the ruling a victory. But Seibel is one of a group of pro-lifers who say the court contradicted a Biden administration interpretation of the Comstock Act and gave pro-lifers a pathway to bring the issue to the U.S. Supreme Court.

“We are thrilled with the New Mexico Supreme Court’s ruling,” said Jonathan Mitchell, another pro-life lawyer in the case, in an emailed statement. “We look forward to litigating these issues in other states and bringing the meaning of the federal Comstock Act to the Supreme Court of the United States.”

Read literally, the Comstock Act prohibits using the mail to send or deliver “every article or thing designed, adapted, or intended for producing abortion.” But the Biden administration does not enforce the act, claiming in a 2022 memo that the act only applies if the sender intends for the recipient to use the items for an unlawful abortion—meaning that sending or receiving abortion pills or equipment in New Mexico, where abortion is legal, does not violate the law.

Congress passed the Comstock Act in 1873 to prohibit circulation through the mail of pornography, contraceptives, and items that could cause abortions. Lawmakers amended the law in 1971 to remove the prohibition on mailing contraceptives. The U.S. Supreme Court’s Roe v. Wade decision in 1973 rendered the remainder of the law ineffective, but it has continued to go unenforced even after the 2022 Dobbs v. Jackson Women’s Health Organization ruling overturned Roe.

Seibel and Mitchell represented the cities of Clovis and Hobbs, two of the defendants in the case. In 2021, a Texas law shut down abortion businesses in the state, making New Mexico border towns like Clovis and Hobbs likely locations for new abortion businesses to open up. They, along with the nearby counties of Roosevelt and Lea—the two other defendants in the case—passed ordinances in 2022 and 2023 requiring compliance with the Comstock Act. These ordinances made it effectively impossible for abortion facilities to open or operate legally in the jurisdictions.

Attorney General Torrez sued the two counties and cities over their ordinances in January 2023, calling on the court to declare a state constitutional right to abortion. The day he filed the suit, the city of Eunice also passed a similar ordinance. The town of Edgewood passed another in April, bringing the total count of New Mexico jurisdictions with these ordinances to four cities and two counties.

Even though Thursday’s ruling means the counties and cities can’t enforce their ordinances against abortion businesses that might want to move in, Seibel, Mitchell, and other pro-life supporters are celebrating the ruling as a crucial step toward challenging the Biden administration’s interpretation of the Comstock Act in the U.S. Supreme Court. And, despite the concerns of some pro-life groups, the court declined to take the case as an opportunity to declare a right to abortion in the state constitution.

In a May 2023 brief, Seibel and Mitchell noted that the ordinances “do nothing more than require compliance with existing federal law,” meaning that the legality of the ordinances depends on the interpretation of the Comstock Act. If the Biden administration’s explanation is correct, then Attorney General Torrez has nothing to worry about because the law allows the mailing and receiving of abortion-related items in New Mexico, where abortion is legal. But if Torrez agrees that the Comstock Act conflicts with New Mexico’s permissive abortion laws, then he’s disagreeing with the Biden administration’s interpretation of the prohibition on abortion-related mail.

The New Mexico Supreme Court justices wrote in Thursday’s opinion that they would not consider the defendants’ arguments about the Comstock Act and the question of it preempting state law. They also disagreed that the ordinances simply parrot the federal law. Rather, they said, the ordinances go beyond federal requirements by attempting to regulate licensure of abortion facilities and abortionists in violation of New Mexico’s state laws. But Seibel argues that the very fact that the ruling says the ordinances are inconsistent with state law means that the justices agree that the Comstock Act conflicts with New Mexico’s laws.

“This is the first court to hold that an ordinance requiring compliance with the federal Comstock Act prohibits the shipment and receipt of abortion-related paraphernalia in states where abortion remains legal,” Mitchell wrote in his emailed statement.

“This is what we planned,” said Seibel, who—along with Mitchell—was involved in the initial effort to bring these kinds of ordinances to New Mexico. “We knew we were going to lose from the day we drafted the ordinance.” But the ruling, he said, gives them a chance to appeal to the U.S. Supreme Court to require enforcement of the Comstock Act.

Mark Lee Dickson, a Texas pastor and founder of the Sanctuary Cities for the Unborn movement, also worked to promote these ordinances in the New Mexico cities and counties. He agreed that many of the locals in New Mexico who supported these ordinances “did see the bigger picture,” he said. “They knew that this was not just about their community. … We were leaning upon these federal statutes, which, if they were enforced, would shut down abortion as we know it in all 50 states.”

Gary Eidson, a county commissioner in Lea County, told WORLD that he and his fellow board members had discussed with their city attorney the possibility of the lawsuit making its way to the U. S. Supreme Court. When the New Mexico Supreme Court heard their case in December 2023, they were not optimistic about how the court would rule. But they knew that eventually they might receive a favorable ruling from the highest court in the nation if they had a chance to appeal it. “That’s what we were hoping,” Eidson said.

Dickson continues to lobby for similar legislation in local governments across the country. Most recently, he’s been in Missouri, working with the city of Rolla on an ordinance that also invokes the Comstock Act. He said he believes the New Mexico Supreme Court ruling leaves a path open for the New Mexico jurisdictions named in the lawsuit to amend their ordinances in a way that would make them enforceable.

Seibel said other cities will likely try passing new ordinances to work around the ruling, now that they know what parts of the ordinances the court finds unacceptable.

“This should really give hope to the communities all over the country, that if you activate your conservative base in a pro-abortion state where abortion is legal, you can do something about it,” Seibel said. “These smaller rural areas can make a big difference. … Nobody shows up like [they do] in their backyard, in their own local community.”