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Constitutionality of Albuquerque Antiabortion Ballot Measure Questioned

Constitutionality of Albuquerque Antiabortion Ballot Measure Questioned

October 11, 2013 — Albuquerque, N.M., City Council member Trudy Jones on Wednesday proposed a resolution that would require the city to pursue legal action to assess the constitutionality of a proposed ballot measure banning abortions after 20 weeks of pregnancy and to determine if the city is obligated to put it on the ballot, the Albuquerque Journal reports (McKay, Albuquerque Journal, 10/10).

Last month, the City Council voted 5-4 to hold a special election on Nov. 19 so that residents can vote on the ballot measure. While City Council members could have approved the ordinance outright, none of them expressed support for doing so.

A statewide version of the measure failed to pass the New Mexico Legislature, but antiabortion-rights activists were able to gather enough signatures to propose the city referendum. If approved, the proposal would make Albuquerque the first city to impose such a ban, which mirrors statewide laws in a dozen other places (Women's Health Policy Report, 9/18).

Key Arguments

Supporters of the ordinance on Wednesday filled the City Council chambers to press the council to allow the special election. They said the measure deserves voter consideration, adding that council members should not make assumptions about how courts would rule.

Jones said her proposal is not meant to assess the merits of the ordinance but to clarify its legality and the council's options. "Why would we pay over $1 million for a special election and the defense of a bill that we know is unconstitutional if it passes?" she asked.

Opponents of the ordinance have said the law violates women's constitutionally protected rights and that the City Council is not obligated to hold an election on an unconstitutional measure (Albuquerque Journal, 10/10). They have vowed to challenge the law in court if it is passed (New Mexico Telegram, 10/9).

Enforceability Questioned

Meanwhile, city attorneys have questioned whether the law could be enforced, even if it is approved by voters (Albuquerque Journal, 10/10).

In addition, state Attorney General Gary King (D) in a news release noted similar sentiments he included in a letter of advice he sent to Jones. "It is important voters know that federal and New Mexico constitutional limitations make a ban on ... legal abortion unenforceable," King wrote. He added that "recent federal court actions have struck down ordinances identical or similar to the proposed measure" (New Mexico Telegram, 10/9).

Council members did not take action on whether they would allow the election. According to the Journal, Jones' proposal is dead as a practical matter because councilors referred the bill to their finance and government committee, the chair of which will not place the measure on the committee's agenda until after the election (Albuquerque Journal, 10/10).