The pre-Roe abortion statute was based on § 230.3 of the Model Penal Code.1 An abortion could be performed at any stage of pregnancy (defined as the “implantation of an embryo in the uterus”) when (1) continuation of the pregnancy was likely to result in the death of the woman or “grave impairment” of her physical or mental health,” (2) the child probably will have a “grave physical or mental defect,” or (3) the pregnancy resulted from reported rape or incest.2 Pursuant to Roe and Doe, the limitations on the circumstances under which abortions could be performed and the requirement that all abortions be performed in hospitals were declared unconstitutional by the New Mexico Court of Appeals in State v. Strance.3 Enforcement of the statute was not enjoined. The pre-Roe statute has not been repealed,4 but would not be enforceable, even if Roe v. Wade were overruled, because of a state supreme court decision striking down abortion funding restrictions on the basis of the state equal rights amendment.5
1 N.M. Stat. Ann. § 40A-5-1 et seq. (Michie 1972).
2 Id. § 40A-5-1. The law imposed other conditions. Abortions could be performed only in licensed hospitals by licensed physicians “using acceptable medical procedures.” Id. No abortion could be performed unless a “special hospital board,” composed of two physicians, reviewed the request for an abortion and certified that the request satisfied one of the grounds specified in the statute. Id. § 40A-5-1(C), -(D). If the woman requesting the abortion was a minor, the consent of her parent or guardian was required. Id. § 40A5-1(C). As the experience in California demonstrated, mental health exceptions were widely abused. See People v. Barksdale, 503 P.2d 257, 265 (Cal. 1972) (noting that more than 60,000 abortions were reported in 1970, more than 98% of which were performed for alleged reasons of mental health).
3 506 P.2d 1217 (N.M. Ct. App. 1973).
4 The statute has been renumbered and now appears at N.M. Stat. Ann. § 30-5-1 et seq. (Michie 2004).
5 See New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841, 850-57 (N.M. 1998), cert. denied, 526 U.S. 1020 (1999).
Life Legal Defense Fund. All rights reserved.
May be reprinted without permission but with attribution to Life Legal Defense Fund.