New Mexico Bill Uses Some of the Same Concerning Language as the California and Maryland Infanticide Bills

Lawmakers in New Mexico – one of the most radically pro-abortion states in the nation – have introduced HB 7 entitled “Reproductive & Gender-Affirming Health Care.” Today - March 1, 2023, the New Mexico Senate Health and Public Affairs Committee is holding a hearing on HB 7. While this bill is packaged slightly differently from many of the abortion-related bills we’ve seen in the recent months, it is entirely problematic and raises a number of red flags, including some of the use of “perinatal” language we’ve been warning about.

First, the bill broadly prohibits New Mexico state or local governments from creating or enforcing “any law, ordinance, policy or regulation that violates or conflicts” with the bill. Section 3 (D). In other words, if the citizens of New Mexico elect a majority of pro-life politicians at the state and local levels, those lawmakers will be unable to pass pro-life and life-affirming laws because this bill – if passed into law – will restrict and penalize them for doing so.

Second, this bill also broadly prohibits state or local government actors, including school districts and other entities that receive public funding, from “directly or indirectly, interfer[ing] with a person’s ability to access or provide reproductive health care . . . within the medical standard of care.” Section 3 (B).

These two sections alone are concerning. The second section most certainly could be construed as requiring government employees, such as school teachers and doctors, to support or even perform (in the case of doctors) abortions, including those for minor children without parental notification or consent.

Let me reiterate, the bill prohibits a state or local government actor from even indirectly interfering with a person’s (not defined as an adult) ability to access an abortion. While the bill has been amended to include a provision that states that health care providers cannot be forced to provide care that they do not otherwise provide, it does not exempt doctors or nurses from participating in abortions due to their religious beliefs and conscience. Section 3 (E).

Third, the language in Section 3 (C) is nearly identical to some of the language that we saw in the California law passed last year that may effectively legalize some forms of infanticide and the similar bill that was introduced in Maryland.

Section 3 (C) of HB 7 prohibits state or local governments and agents from:

directly or indirectly, depriv[ing], through prosecution, punishment or other means, a person’s ability to act or refrain from acting during the person’s pregnancy based on the potential, actual or perceived effect on the pregnancy. Section 3 (C).

The California law, AB 2223 states: “. . . a person shall not be subject to civil or criminal liability or penalty, or otherwise deprived of their rights under this article, based on their actions or omissions with respect to their pregnancy or actual, potential, or alleged pregnancy outcome, including miscarriage, stillbirth, or abortion, or perinatal death due to causes that occurred in utero.” AB 2223.

Similarly, two identical bills were proposed in Maryland last year that stated, “This section may not be construed to authorize and form of investigation or penalty for a person (a) terminating or attempting to terminate the person’s own pregnancy; or (2) experiencing a miscarriage, perinatal death related to a failure to act, or stillbirth.” SB 669.

As we pointed out in the California and Maryland bills, both contained the term “perinatal death” in relation to the actual or perceived outcome of a woman’s pregnancy referenced in each respective bill. As a reminder for our readers, the term “perinatal” refers to a period of time generally encompassing the 20th to 28th week of gestation up until 28 days after birth.

HB 7 does not contain the term “perinatal death,” but it does contain the term “perinatal” as one of the elements of “reproductive health care” with which the government cannot interfere, deny, or restrict. HB 7 defines “reproductive health care” as:

psychological, behavioral, surgical, pharmaceutical and medical care, services and supplies that related to the human reproductive system, including services related to . . . abortion . . . prenatal, birth, perinatal and postpartum health. Section 2 (C).

As a law firm that frequently dissects pro-abortion legislation, we are all too familiar with the euphemistic terms that the abortion industry pushes to hide its true agenda. This is why it is concerning, and a red flag, that a discussion of perinatal health is contained in a bill that clearly is pushing abortion on demand and without restriction or pushback of any kind. It is even more concerning that this bill wants to prevent prosecution or punishment of a person for “acting or refraining from acting” because of the effect on the pregnancy.

Let me put it this way: If a woman is 32 weeks pregnant and takes an abortion pill (also known as a pharmaceutical), and her baby is born alive due to a botched attempt at a late-term abortion, and then the woman refuses care for the born-alive baby, then she has both acted and refrained from acting and it had an effect on the pregnancy.

If this story seems unreal, let me assure you that it is already occurring in places like California, as well as other parts of the world. As we detailed in our testimony before the California legislative committees and in a letter to Governor Newsom:

[A] recent report from the U.K. detailed how a baby died four days after being born alive following a botched medical abortion. According to the report, the baby’s mother took mifepristone because she had “decided to legally abort the pregnancy on health grounds believing that she was 12 weeks [pregnant], when in fact she was more than twice that [30 weeks pregnant].” After the baby’s death, an investigation revealed that “pre-natal scans were either not carried out or were done erroneously.” While the baby in this story did receive medical attention after his birth, bills like AB 2223 would ensure that medical attention for babies born alive in these kinds of cases would not be required, and investigations would be extremely limited.

Abortion is already legal in New Mexico, essentially up to the moment of birth. It is one of the most radically pro-abortion places on earth because it has no restrictions on abortion at any stage of gestation. This bill is unnecessary unless it is pushing abortion to even more extreme lengths – which it appears it may well be doing, both by undermining religious freedom and conscience protections, or even protection for babies born alive after botched abortions.

UPDATE: On Saturday, March 4, the Senate held a hearing on H.B. 7, during which I was able to provide opposition testimony. Unfortunately, the bill passed the committee in a party-line vote of 6-3. The bill was presented on the Senate floor on March 7, and – after a three-hour debate – was passed by the Senate 23-15, with one Democrat, State Senator Pete Campos (NM-8), voting against the bill. Now H.B. 7 will go back to the House for a concurrence vote on the amendments it received from the Senate. After the House votes on it, it will head to the desk of Governor Michelle Lujan Grisham, who is expected to sign it into law. We will continue to voice our opposition to this bill and its companion bill, S.B. 13, by sending a letter to the governor to highlight the glaring issues with H.B. 7.