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State Laws

New Mexico


Political Information

Executive (Governor)

Pro-choice

Senate

Pro-choice

House

Pro-choice

Abortion-Care Policies

Abortion Providers

Abortion Providers: Restrictions

Restrictions on Who May Provide Abortion Services

New Mexico prohibits certain qualified health-care professionals from providing abortion services.

Only a physician licensed by the state using acceptable medical procedures may provide abortion care. N.M. Stat. Ann. § 30-5-1(C) (Enacted 1969).

The New Mexico attorney general issued an opinion stating that this physician-only requirement is enforceable. N.M. Op. Att’y Gen. No. 90-19 (Oct. 3, 1990).


Abortion Rights

Protections: State Consitutional Protection

The New Mexico Constitution protects the right to choose to a greater extent than the U.S.  Constitution.  The New Mexico Supreme Court held that a regulation limiting state medical assistance for abortion to cases of life endangerment, rape, or incest was unconstitutional under the Equal Rights Amendment of the New Mexico Constitution because it prohibited reimbursement for medically necessary abortion services while providing reimbursement for all medically necessary health services unique to men.  New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998), cert. denied, 526 U.S. 1020 (1999).  A similar restriction has been upheld by the U.S. Supreme Court under the U.S. Constitution.  Williams v. Zbaraz, 448 U.S. 358 (1980).


Near-Total Abortion Ban

New Mexico has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable.

The ban provides that a woman may not obtain an abortion unless a special hospital board certifies in writing that:  (1) continuation of the pregnancy is likely to result in the woman’s death or "grave impairment" of her physical or mental health; (2) if the woman gives birth, the child probably will have a grave physical or mental defect; (3) the pregnancy resulted from rape, which has been or will be reported to an appropriate law-enforcement official; or (4) the pregnancy resulted from incest.  Any person who administers a substance or uses any other means to cause an uncertified abortion is guilty of a felony.  N.M. Stat. Ann. §§ 30-5-1 (Enacted 1969), 30-5-3 (Enacted 1969).

A court held that these provisions are unconstitutional to the extent that they conflict with Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973).  State v. Strance, 506 P.2d 1217 (N.M. Ct. App. 1973).


Abortion Bans Throughout Pregnancy: Procedure Ban

New Mexico makes the provision of certain abortion procedures a felony, unless the procedure is necessary to preserve the life of a woman, or to prevent great bodily harm to a woman, because of physical disorder, illness, or injury, including a condition caused by or arising from the pregnancy and no other medical procedure would suffice.  N.M. Stat. Ann. §§ 30-5A-1 to 30-5A-5 (Enacted 2000).

There is also a Federal Abortion Ban, which applies nationwide regardless of state law.  The federal ban prohibits certain second-trimester abortion procedures and has no exception for a woman’s health.  In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the court has upheld a ban on a previability abortion procedure.


Biased Counseling

No state measure.

Mandatory Delays

No state measure.

Insurance Coverage & Abortion

Supports Insurance Coverage of Contraception

New Mexico law requires health-insurance plans that cover prescription medication to provide equitable coverage for contraception.

What is required?  If a health-insurance plan provides coverage for prescription medication, it must provide coverage for Food and Drug Administration-approved prescription contraception.

To which insurance plans does the law apply?  Individual and group health-insurance plans, other than certain limited benefit policies, delivered or issued on or after July 1, 2001 that provide coverage for prescription medication.

Does the law contain a refusal clause, allowing certain employers and/or insurers to refuse to provide or pay for contraceptive coverage?  Yes.

To whom does the refusal clause apply?  Religious employers.

What does the refusal clause allow?  A religious employer may exclude coverage for prescription contraception.

Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women?  Yes.  By failing to define the term "religious employer," the law’s refusal clause inappropriately includes a wide range of entities that perform non-religious functions in the public sphere.

Does the law require the refusing entity to notify the persons affected?  No.

Are there circumstances under which a refusal clause may not be exercised?  No.

Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause?  No.

N.M. Stat. Ann. §§ 59A-22-42, -23-4, -47-33 (Enacted 2001).


Low-Income Women & Abortion

Restricts Low-Income Women’s Access to Abortion

New Mexico allows women eligible for state medical assistance for general health care to obtain public funds for abortion services if:  (1) the procedure is necessary to preserve the woman’s life; (2) the pregnancy is the result of rape or incest as certified by the treating physician and/or the appropriate reporting agency; (3) the procedure is necessary to terminate an ectopic pregnancy; or (4) the procedure is medically necessary because the pregnancy aggravates a pre-existing condition, makes treatment of a condition impossible, interferes with or hampers a diagnosis, or has a profound, negative impact on the woman’s physical or mental health.  Medical Assistance Division Program Policy, § 8.325.7.12(A) (Nov. 1, 2003), at http://www.hsd.state.nm.us/mad/RPolicyManual.html.

A court held that a previous regulation that prohibited state funds from paying for abortion except in cases of life endangerment, rape, or incest was unconstitutional under the equal-rights amendment of the New Mexico constitution because it prohibited payment for some medically necessary abortion services.  N.M. Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998), cert. denied, 526 U.S. 1020 (1999) (citing to Pregnancy Termination Procedure, N.M. Human Servs. Dep’t, Med. Assistance Div. Reg. 766, 6 N.M. Reg. 684 (Apr. 29, 1995)).

Except in cases of life endangerment, rape, or incest, an unemancipated minor may not obtain publicly funded abortion care without the written consent of one parent, legal guardian, or other acting "in loco parentis" to the minor, unless the attending physician, and, if necessary, an independent counselor, certify that the minor is mature and well informed enough to make her own decision and that an abortion is in her best interest, or the minor obtains a court order to have the procedure without parental consent.  Medical Assistance Division Program Policy, § 8.325.7.15(D) (Nov. 1, 2003), at http://www.hsd.state.nm.us/mad/RPolicyManual.html.


Young Women & Abortion

Parental Consent

New Mexico law restricts young women’s access to abortion.

Is the law enforceable?  No.  The New Mexico attorney general stated that this pre-Roe v. Wade law is unconstitutional and unenforceable because it does not provide a constitutionally required judicial-bypass procedure.  N.M. Op. Att’y Gen. No. 90-19 (Oct. 3, 1990).

Who is considered a minor?  A young woman under the age of 18.

What is required – parental consent or parental notice?  Consent.

Who must provide consent?  One parent.

Are there other trusted adults who may provide consent instead?  No.

What is the process for obtaining consent?  A young woman may not obtain an abortion unless the young woman and one parent request the procedure.

May the parental mandate be waived if a young woman is a victim of rape or incest?  No.

May the parental mandate be waived if a young woman is a victim of child abuse?  No.

May the parental mandate be waived if a young woman’s health is threatened?  No.

May the parental mandate be waived under any other circumstances?  No.  The law has no judicial-bypass procedure.

If a young woman must obtain permission from a judge, what is the process?  Not applicable.

Are there other significant requirements under the law?  A young woman may not obtain an abortion unless the members of a "special hospital board" certify in writing that continuation of the pregnancy would threaten her life or cause "grave impairment of her physical or mental health," that the pregnancy resulted from rape or incest, or that birth would produce a child with a grave physical or mental defect.

Has a court considered the constitutionality of this law?  Yes.  A court held that these provisions, except the provision relating to minors, are unconstitutional to the extent that they conflict with Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973).  State v. Strance, 506 P.2d 1217 (N.M. Ct. App. 1973).  The New Mexico attorney general issued an opinion based on U.S. Supreme Court precedent stating that the law does not provide a constitutionally required bypass procedure and is therefore unenforceable.  N.M. Op. Att’y Gen. No. 90-19 (Oct. 3, 1990).

Other information about the law:  None.

N.M. Stat. Ann. § 30-5-1(C) (Enacted 1969).


Family-Planning Policies

Insurance Coverage & Contraception

No state measure.

Low-Income Women & Contraception

Supports Low-Income Women’s Access to Contraception

New Mexico provides increased access to reproductive-health-care services through a State Plan Amendment (SPA) to its Medicaid program.  The SPA allows the state to cover family-planning services for women and men with family incomes at or below 255 percent of the federal poverty level who are not currently enrolled in Medicaid and do not have any other health insurance.  Additionally, enrollees must be (1) U.S. citizens or persons who meet the state’s defined immigration requirements and (2) New Mexico residents.

Beneficiaries of family-planning coverage available through the SPA are not required to pay premiums or co-payments for covered services.  Covered services include: all FDA-approved birth-control methods, devices and supplies; a comprehensive reproductive-health history, physical examination, and pap smear; emergency services directly related to the contraceptive method and follow-up; pregnancy testing and counseling; prevention and treatment of sexually transmitted infections; HIV testing and counseling; limited diagnostic services for fertility management; male and female sterilization; reproductive-health education and counseling.

New Mexico State Plan Amendment, NM-10-12, at http://www.medicaid.gov/State-Resource-Center/Downloads/NM/NM-10-12-Ltr.pdf.  Modified income eligibility standard, at, http://www.medicaid.gov/State-resource-center/Medicaid-State-Plan-Amendments/Downloads/NM/NM-13-0022-MM2.pdf.


Emergency Contraception

EC in the ER

New Mexico law ensures that sexual-assault survivors receive access to emergency contraception (EC) in hospital emergency rooms.  As part of the minimum standards for the examination and treatment of a sexual-assault survivor, a physician or other health-care provider must provide a woman with medically and factually accurate written and oral information about EC, offer her EC, and provide EC to her upon request. N.M. Stat. Ann. §§ 24-10D-1 to -5 (Enacted 2003).


Other Important Issues

Clinic Protections

No state measure.

Fake Health Centers

State Funds Crisis Pregnancy Centers

New Mexico supports crisis pregnancy centers (CPCs) by authorizing a “New Mexico Works” program, administered by the state Department of Human Services.  This program is authorized to use federal funds made available from Title IV-A of the Social Security Act, Block Grants to States for Temporary Assistance for Needy Families.  The FY’16 funding level is not publicly available.   (NMAC 8.102.640.3); (42 U.S.C. 601 et seq.); Health and Human Serv. Dept., Temporary Assistance to Need Families (TANF) New Mexico Works (NMW) Fact Sheet (Jan. 26, 2017).


Refusals & Guarantees

Refusals of Medical Care

ABORTION REFUSAL CLAUSE

New Mexico allows certain individuals or entities to refuse to provide abortion services.

To whom does the refusal clause apply? Hospitals and individuals associated with, employed by, or on the staff of a hospital.

What does the refusal clause allow? Allows individuals associated with, employed by, or on the staff of a hospital, who object on moral or religious grounds, to refuse to participate in medical procedures that result in an abortion. The refusal of a person to participate may not be a basis for disciplinary action or other recriminatory action. Allows hospitals to refuse toadmit a woman for the purpose of providing abortion care.

Does the law require the refusing entity to notify the persons affected? No.

Are there circumstances under which a refusal clause may not be exercised? No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive-health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.

Has a court considered the constitutionality of this law? No. However, the New Mexico attorney general issued an opinion stating that this law is enforceable. N.M. Op. Att’y Gen. No. 90-19 (Oct. 3, 1990).

N.M. Stat. Ann. § 30-5-2 (Enacted 1969).

HEALTH-CARE PROVIDER AND HEALTH-CARE INSTITUTION REFUSAL CLAUSES

New Mexico allows certain individuals or entities to refuse to comply with individual health-care instructions or decisions based on conscience.

To whom does the refusal clause apply? Health-care providers and health-care institutions.

What does the refusal clause allow? A health-care provider may refuse to comply with an individual health-care instruction or decision for reasons of conscience. A health-care institution may refuse to comply with an individual health-care instruction or health-care decision if it is contrary to a policy of the institution that is expressly based on reasons of conscience.

Does the law require the refusing entity to notify the persons affected? Yes. A provider or institution that refuses to comply with an individual health-care instruction or decision must promptly inform the patient.

Are there circumstances under which a refusal clause may not be exercised? No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for the requested health services? No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive-health services, information, or referrals if an individual and/or entity exercises a refusal clause? Yes. A health-care provider or institution that refuses to comply with an instruction or decision must (1) inform the patient promptly; (2) make all reasonable efforts to assist in the transfer of the patient to another provider or institution that is willing to comply with the instruction or decision; and (3) provide continuing care to the patent until the transfer is accomplished or until it appears that a transfer cannot be accomplished.

N.M. Stat. Ann. § 24-7A-7 (Enacted 1995; Last Amended 1997).

INSURANCE COVERAGE FOR CONTRACEPTION REFUSAL CLAUSE

Although New Mexico law requires health-insurance plans that cover prescription medication to provide equitable coverage for contraception, certain employers may require that their plans exclude coverage for contraception.

To whom does the refusal clause apply? Religious employers.

What does the refusal clause allow? A religious employer may exclude coverage for prescription contraception from the health coverage purchased.

Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? Yes. By failing to define the term "religious employer," the law’s refusal clause inappropriately includes a wide range of entities that perform non-religious functions in the public sphere.

Does the law require the refusing entity to notify the persons affected? No.

Are there circumstances under which a refusal clause may not be exercised? No.

Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? No.

N.M. Stat. Ann. §§ 59A-22-42 (Enacted 2001; Last Amended 2007), -23-4 (Enacted 1984; Last Amended 2009), -47-33 (Enacted 1984; Last Amended 2009).

STERILIZATION REFUSAL CLAUSES

New Mexico allows certain entities to refuse to provide or participate in sterilizing procedures.

To whom does the refusal clause apply? Hospitals and clinics.

What does the refusal clause allow? No hospital or clinic that objects on moral or religious grounds shall be required to admit a person for the purpose of being sterilized.

Does the law require the refusing entity to notify the persons affected? No.

Are there circumstances under which a refusal clause may not be exercised? No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for sterilization services? No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive-health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.

N.M. Stat. Ann. §§ 24-8-2 (Enacted 1978; Last Amended 1978), -6 (Enacted 1978).


Counseling & Referral Bans

No state measure.

Everyone should be able to decide if, when, how, and with whom they start or grow a family.

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