Nov. 19 (Bloomberg) -- Albuquerque became the first U.S. city to reject a ballot measure to ban abortions after 20 weeks, delivering a blow to opponents of the procedure who had hoped to expand their fight beyond courts and state legislatures.
Residents of New Mexico’s largest city voted 55 percent to 45 percent against setting the first municipal-level abortion restrictions on doctors, in a bid to shut down a local clinic.
“You can pretty much expect to see these kinds of direct legislative initiatives popping up on a municipal level all over the country,” Cheryl Sullenger, senior policy adviser at Operation Rescue, a Wichita, Kansas-based anti-abortion group, said before the results were known. “This could be a winning strategy for us.”
Creating a new battleground in cities would give abortion-rights opponents another tool in their efforts to close clinics performing the procedure legalized nationally in the Supreme Court’s landmark 1973 Roe v. Wade decision. The court in 1992 upheld the constitutional right to an abortion before the fetus is capable of living outside the womb, which is generally considered to begin at about 24 weeks.
The strategy to offer a municipal ballot measure in Albuquerque, a city of about 555,000, was embraced because the New Mexico legislature, which is controlled by Democrats, hasn’t acted on bills to restrict abortions, Sullenger said.
“Year after year, pro-life legislation gets introduced and it dies in committee,” she said.
The ballot-measure approach is a way to circumvent the legislature to restrict abortion access, said Elizabeth Nash, state issues manager at the Guttmacher Institute, a New York-based reproductive-health research organization.
The Albuquerque clinic, called Southwestern Women’s Options, performs abortions through 28 weeks, according to its website. Other clinics performing abortions in the third trimester are located in Boulder, Colorado, and Germantown, Maryland.
“We know there are very few providers who perform abortions at this point in gestation,” Nash said. “This is a very targeted attack on them.”
The procedure is very rare, with only 1.5 percent of abortions performed at 20 weeks or later, Nash said.
At least 10 states have passed laws since 2010 banning abortions after the 20th week of pregnancy.
The Albuquerque measure drew protesters to polling places and “brought a heightened emotional element to the election process for some people,” Amy Bailey, Albuquerque’s city clerk, said in an interview.
Almost 44,000 city residents came to the polls to weigh in on the measure during early voting from Oct. 30 through Nov. 15, compared with the roughly 26,000 who voted early in the mayoral election last month, Bailey said.
The citizen initiative is a “very rarely used part of the city charter,” Bailey said. It was used last year for the first time in seven years to approve a minimum wage increase, she said.
Even if approved, the Albuquerque measure “would not be legally enforceable,” Gary King, New Mexico’s attorney general wrote in an Oct. 9 letter to Trudy Jones, an Albuquerque city council member.
He pointed to recent cases in which federal courts struck down statutes passed by Idaho, Arizona, Arkansas and North Dakota that were similar or identical to the Albuquerque proposal. The basis for the decisions was rooted in Roe v. Wade, he said.
The cases “show that the overwhelming weight of judicial authority doesn’t support enactments, like the proposed Albuquerque ordinance, that attempt to ban otherwise legal abortions,” King wrote.
In states like California, which has a law protecting women’s access to abortion pre-viability, a locality couldn’t pass a more restrictive standard because it would conflict with the state law, said Maya Manian, a law professor at the University of San Francisco.
New Mexico doesn’t have such a law, according to Nash.
“You would still have a problem with federal constitutional law” under Roe v. Wade, Manian said. The supremacy clause of the U.S. Constitution says federal law trumps conflicting state and local law.
“If voters approve this ban, it could be challenged in court,” she said.
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