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Abortion rights opponents in Texas dictated terms and pressured officials in New Mexico municipalities to pass ordinances restricting clinics, according to public records — potentially as part of a bigger legal strategy.
This story is the first in a two-part series. Find the rest at sourcenm.com tomorrow.
Emails show former Texas Solicitor General Jonathan Mitchell and Mark Lee Dickson, founder of the “Sanctuary Cities for the Unborn” initiative, succeeded in influencing local governments in rural parts of the state — despite warnings and hesitation from local officials.
In late 2022 and early 2023, the New Mexico cities of Clovis and Hobbs passed ordinances saying people have no right to violate the Comstock Act of 1873, a previously obscure federal statute that bans the mailing of abortion pills or abortion-related materials. They were later joined by Eunice and Edgewood, and Roosevelt and Lea Counties.
There are some variations among the six ordinances: Lea County’s ordinance specifies financial penalties for violations; the Roosevelt County and Edgewood ordinances allow a private citizen to sue and win monetary damages; and the Clovis, Hobbs and Eunice ordinances impose new licensing requirements on abortion clinics.
Emails obtained via public records requests show Mitchell and Dickson approaching local New Mexico governments to pitch versions of the ordinances.
A legal nonprofit called Democracy Forward brought the emails to light, and Source New Mexico independently verified the records through interviews with local officials and our own records requests.
The emails also show influence and control: Mitchell required any changes to the Clovis ordinance be approved by him, he was providing free legal advice to Eunice about amending the ordinance, and Dickson directed the language of the Hobbs ordinance.
Hobbs Mayor Ed Cobb said in a phone interview that it’s “not unusual for us to be provided information,” adding that the city has taken input from outside attorneys on other ordinances in the past.
“That doesn’t necessarily mean that we copy and paste it, but it’s not prohibited,” Cobb said.
The ordinances now face a challenge at the New Mexico Supreme Court, because they throw up regulatory roadblocks for abortion clinics by barring them from having drugs for medication abortions shipped from other states through the mail. And a 2023 statute gives the state — not local governments — the final say on reproductive health care.
New Mexico’s Democratic Attorney General Raúl Torrez is prosecuting the case against the local governments. He’s asking the justices to nullify the ordinances, and to go even further by setting legal precedent to ensure abortion rights under the New Mexico Constitution.
As of Monday morning, the justices had yet to issue a ruling.
Mitchell is banking on federal law superseding both state law and the New Mexico Constitution, according to a court filing in the case.
Mitchell told The Nation that regardless of how the New Mexico justices rule, the legal challenge will accelerate his goal of getting Comstock in front of the conservative majority on the U.S. Supreme Court.
“That is the end game here,” said Joe Gaeta, director of oversight and engagement at Democracy Forward and one of the attorneys who originally obtained the records.
Comstock is key in the anti-abortion rights movement’s push for national restrictions, according to legal experts.
Democracy Forward tracks the far-right legal movement and has clashed with Mitchell in courts in Texas and other states. In 2023, the organization noted his efforts as part of “a city-by-city campaign to ban abortion.”
States Newsroom reports that since the decision overturning Roe v. Wade leaked in May 2022, anti-abortion rights activists have flooded state legislatures and city governments with proposals to criminalize pregnancy termination or to add burdensome regulations.
Neither Mitchell nor Dickson responded to multiple requests for comment submitted over weeks.
‘I should have been involved’
Before the ordinances were passed, Mitchell promised to represent Edgewood, Clovis, Hobbs and Eunice in court if they would adopt the measures, which could prevent abortion clinics from operating in their cities.
Some in these communities, including city and county officials, warned against getting involved in this fight over abortion at Mitchell and Dickson’s urging.
“Oh Mylanta. I hope your County Attorney is present to let them know they have no legal authority to do any of those things,” Quay County Clerk Ellen White wrote in an email to Roosevelt County on Sept. 19, 2022.
Reached via phone, White said, “I just didn’t really think it was the business of a county commission to deal with that.” She declined to comment further.
Two attorneys for Hobbs and one for Clovis, along with a Hobbs commissioner, also raised doubts about the ordinances’ legality, the records show.
Clovis does not have an in-house attorney but instead contracts with private lawyers. Jared Morris said he “generally” represents the city in “most of their matters” — but not the abortion ordinance.
Morris said in an interview that he had “zero involvement” in the ordinance.
“(Mitchell and Dixon) already had this ordinance, had it drafted, and their M.O. is to take it to these governing bodies — county or city commissions — and circumvent the in-house attorney, usually,” he said. “So that’s how it worked here.”
But the Clovis city charter requires the city attorney to prepare all ordinances.
“My interpretation is that I should have been involved in the drafting,” Morris said.
While Mitchell’s control over the ordinance’s language is strange, Morris acknowledged it doesn’t necessarily mean the ordinance itself is invalid.
For Gaeta with Democracy Forward, the most surprising revelation in the records was one Clovis official’s expression of feeling manipulated.
Morris said in an Oct. 13, 2022 email to the commissioners that Mitchell over in Texas had to approve any changes.
“Mayor was told last night that all changes to the ordinance, even the most minute, must be approved by Jonathan Mitchell to maintain our free defense,” he wrote.
Five days later, Clovis Commissioner Megan Palla raised concerns about Dickson and Mitchell’s motives in an email after noticing “extreme edits” between two different versions.
“I understand Jonathan Mitchell approved all edits, but why?” Palla wrote. “It makes me feel like there is something else up their sleeve and they don’t care what our ordinance says, they just want us to stick our neck out and pass something. Is there some other motive? I feel like a pawn in a game, but I don’t know the rules of the game and what the end result they are looking for.”
Palla did not respond to a request for comment.
And when a commissioner expressed a desire to add an exception to the ordinance for rape and incest survivors, Clovis Mayor Michael Morris — no relation to the attorney — wrote: “Please run it by Mitchell if you like. I support you.”
The Clovis mayor did not respond to multiple requests for comment for this story.
Mayor Cobb of Hobbs, on the other hand, said while Dickson did offer Mitchell’s free legal representation, the commission and the city’s legal team never entered into an attorney-client relationship with either of them.
“He offered to represent the city and has provided some information, but we’ve never had formal engagement with Mr. Mitchell,” Cobb said. “He did not come down here and tell us what to do. That’s the bottom line.”
Cobb said Mitchell commented on drafts, but the mayor never saw any draft directly from Mitchell, who “was never in any deliberations that I had with city staff.”
But the emails show Hobbs officials did defer to the Texas abortion rights opponents.
In an Oct. 2, 2022 email to Hobbs’ former city attorney, Mitchell wrote, “Attached is a revised Hobbs ordinance along the lines we discussed,” adding that Dickson “signed off on this version.”
Source NM is an affiliate of States Newsroom, the nation’s largest state-focused nonprofit news organization, supported by grants and a coalition of donors and readers. Source NM retains full editorial independence.
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