20-Week Abortion Bans: Coming to a City Near You?

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AP Images/ALBUQUERQUE JOURNAL/GREG SORBER

If you want to take a plunge into the roiling id of the anti-choice movement, go to Albuquerque, New Mexico. Tomorrow, the half-million residents of the state's most populous city will vote on a ballot measure that would ban abortion after 20 weeks. Although 13 states have enacted similar laws, if Albuquerque's measure passes, it will become the first municipality to impose a 20-week abortion ban.

Anti-choice activists are gleefully proclaiming the launch of a local rebellion against abortion. A woman made the Albuquerque evening news after handing out anti-abortion propaganda to trick-or-treaters on Halloween. Teenagers protested outside the New Mexico Holocaust and Intolerance Museum, holding signs calling abortion a modern-day genocide. Hundreds of thousands of dollars from national groups on both sides of the issue have blanketed the city with television and radio ads. Some local residents seem more befuddled than galvanized. "I don't even know what we're voting on," one man told a local newspaper. But confusion hasn't stopped people from heading to the ballot box. By the end of the day on Friday, when early voting closed, 40,000 Albuquerque residents-nearly ten percent of the town's population-had cast ballots. "This is an early-voting record for a city municipal election," says Amy Bailey, the Albuquerque city clerk.

There's a reason that the national abortion fight descended on a sleepy southwestern city that was, until recently, best known as the landscape for the meth-soaked escapades on Breaking Bad. It's home to one of the three clinics in the country where women can come for a third-trimester abortion. Pro-choice advocates are anxious to bat back the ballot measure, not only because of the impact that the law would have on the city's late-term abortion provider, but to end speculation about a grassroots anti-abortion surge. "It is a new strategy. There is more than one way to close an abortion clinic," Troy Newman, the president of the radical anti-choice organization Operation Rescue, told Reuters in September. "If you can't get anything done in a state legislature … you look at what is going on in a city. They say all politics is local. This is a great example of that."

A win in Albuquerque wouldn't trigger a national domino effect, though. Apart from the fact that there are few other cities in the country where a 20-week ban could have such a widespread, immediate impact, in most states, municipalities don't have the power to enact such sweeping laws. New Mexico is an outlier in this regard. Gerald Frug, a professor of local government law at Harvard Law School, explains that in most places, state law supersedes local law; if a state permits abortion before a certain point in pregnancy, cities can't meddle with that standard. "Cities generally need specific statutory authority to do something like this," Frug says. "And they're completely unlikely to have it. Most states agree that this is not a local issue, and that's the end of it."

But the quirks of New Mexico law make it harder to argue that Albuquerque lacks the authority to prohibit abortion after 20 weeks. That's bad news for the women of New Mexico, not to mention the future of late-term abortion, because it means the law would be less likely to be thrown out on a technicality. And if the ban fails at the ballot box tomorrow, opponents can just try again. If the measure does pass, New Mexico's legal oddities don't guarantee the ban will survive a court battle. There will be plenty of legal grounds on which to challenge Albuqerque's 20-week abortion ban-federal constitutional precedent protects a woman's right to abortion from state interference until the fetus is viable, around 24 weeks into pregnancy. But the outcome in Tuesday's election won't be a bellwether in the national abortion debate-New Mexico is just too weird.

Pro-choice advocates in New Mexico braced themselves for an influx of opposition in 2010, when Stacey Sella and Susan Robinson, two late-term abortion providers who had worked in George Tiller's Wichita clinic before his murder in 2009, began offering third-trimester abortions at Southwestern Women's Options, an Albuquerque clinic. Late-term abortion providers are increasingly rare, in part because of state laws restricting the procedure after 24 weeks, but also because of violence and intimidation from anti-choice activists and organizations. Only about 1 percent of abortions are performed after 21 weeks, and most are performed because of severe fetal abnormalities that can't be detected until the fifth or sixth month of pregnancy, or threats to the mother's health. Because of the dearth of late-term providers, women were soon coming to Albuquerque from all over the country-and even the world-for abortion procedures. New Mexico has, historically, had a hands-off attitude toward abortion. But with a Republican governor and a large Catholic population, the state was a riper target for anti-choice activism than Colorado or Maryland, where the country's two late-term abortion clinics are located.

The incursion came the following summer in the form of a young couple named Bud and Tara Shaver, fresh off a yearlong internship with Operation Rescue. Known for its theatrics and extreme rhetoric, Operation Rescue is on shaky ground when it comes to legal strategy. While other groups like Americans United for Life chip away at four decades of legal abortion with increasingly sophisticated legal strategies, Operation Rescue has never used such subtle tactics. Its tagline is "If you believe abortion is murder, act like it." Cheryl Sullenger, the group's senior policy advisor, who came to Albuquerque this weekend to fan support for the 20-week ban, served two years in federal prison in the late 1980s for conspiring to blow up an abortion clinic. The organization moved to Kansas to target "Tiller the Killer," staging 24-hour protests outside his clinic and petitioning the state to shut it down. There were even some ties between Operation Rescue and the man who shot and killed Tiller in 2009, although the organization denies it.

It was only because of a quirk in Albuquerque's city charter that the issue went before the voters at all. When they arrived in Albuquerque with Operation Rescue's firepower behind them, the Shavers had no idea that a municipal ban was possible. Instead, they went to the logical place to introduce abortion restrictions: the statehouse. But in Santa Fe, the Shavers and their allies-other state right-to-life, family values, and Catholic advocacy groups-met repeatedly with failure. Anti-abortion bills, once introduced, were promptly killed by the legislature's Democratic majority. The Republican governor, Susana Martinez, showed little interest in supporting restrictive abortion laws.

It was at this point that the Shavers noticed a new city trend. In November 2012, activists had successfully gotten an ordinance to raise the Albuquerque minimum wage onto the ballot by exploiting a long-neglected provision of the city charter that allows residents to force a special election on a particular issue as long as they can raise the requisite number of signatures. The following March, Albuquerque residents voted on another citizen-sponsored measure. The Shavers realized that as long as they could get enough signatures supporting a 20-week abortion ban, they could require the city to put it to a vote. If the measure passed, it would effectively ban abortion after 20 weeks in the state, since the only clinics that offer abortion after that point in pregnancy are located in Albuquerque.

Most states wouldn't have allowed municipalities this kind of leeway in the first place. But New Mexico has a provision in its state constitution that allows for "home rule," giving populous cities like Albuquerque and Santa Fe an unusual level of self-governance. "The only other limitation-apart from geography-is that cities cannot pass an ordinance where the state has exclusively claimed jurisdiction and they are not allowed to enact ordinances that are inconsistent with state law," says Dave Pederson, general counsel for the New Mexico Attorney General. The state legislature has not claimed exclusive jurisdiction over abortion; in fact, according to Pederson, it only has one limitation on abortion on the books, a law banning a particular procedure called partial-birth abortion.

Until a few months ago, the New Mexico legislature's laissez-faire attitude toward abortion was a good thing for pro-choice advocates. But now the state's obvious lack of interest in legislating abortion policy could undercut the argument that its cities can't legislate on a subject as broad as abortion. It's hard to contend that an Albuquerque ordinance is stepping on the state of New Mexico's toes when state law on the subject is almost completely nonexistent.

If the ballot measure passes on Tuesday, it could go into effect as soon as early December. But it will almost certainly face a legal challenge. Caitlin Borgmann, a professor of law at the City University of New York, says there are a couple of tacks the measure's opponents, who will likely be led by the ACLU of New Mexico, could take. In addition to arguing that the 20-week ban violates the precedent set by Roe v. Wade, they could contend that the restriction runs afoul of New Mexico's Equal Rights Amendment. But, she adds, any court would be wading into unchartered waters. "It's a clever new tactic," Borgmann says. "It's a sign that [anti-choice activists] have realized that they may be able to achieve locally what they can't do statewide, particularly when you're talking about something like later abortions when you have so few providers."

The best hope for the city's pro-choice advocates is, of course, for voters to defeat the ballot measure. But even then, Pederson says, there's nothing to stop the Shavers from coming back with a new petition, as long as they can get the signatures. "Until they run out of resources or enthusiasm, they can keep coming back to the well as many times as they want, he says"

But as far as a national campaign goes, Frug says not to expect a wave of city-level abortion bans-even in places that have wide local authority, like Albuquerque. "You can argue that something like the minimum wage is a local issue, especially in cities, where the cost of living is higher," he says. "But abortion? Why would the women of Albuquerque need a different abortion law than women in rural New Mexico? I don't think anyone could successfully make that argument."