The pre-Roe abortion
statute was based on § 230.3 of the Model Penal Code. 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. 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. Enforcement
of the statute was not enjoined. The pre-Roe statute
has not been repealed, but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.
N.M. Stat. Ann. § 40A-5-1 et seq.
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).
1217 (N.M. Ct. App. 1973).
has been renumbered and now appears at N.M. Stat. Ann. § 30-5-1 et seq. (Michie 2004).
New Mexico Right to Choose/NARAL v. Johnson,
975 P.2d 841, 850-57 (N.M. 1998), cert. denied,
526 U.S. 1020 (1999).