State ex rel. Torrez v. Bd. of Cnty. Comm'rs for Lea Cnty.

                                                                  Office of the   New Mexico
                                                                      Director    Compilation
                                                                                  Commission
                                                                   2025.08.04
                                                              '00'06- 10:55:45
             IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: January 9, 2025

No. S-1-SC-39742

STATE OF NEW MEXICO,
ex rel. RAÚL TORREZ,
New Mexico Attorney General,

       Petitioner,

v.

BOARD OF COUNTY
COMMISSIONERS FOR LEA
COUNTY, BOARD OF COUNTY
COMMISSIONERS FOR
ROOSEVELT COUNTY,
CITY OF CLOVIS, and CITY
OF HOBBS,

       Respondents.

ORIGINAL PROCEEDING

Raúl Torrez, Attorney General
James W. Grayson, Chief Deputy Attorney General
Aletheia V.P. Allen, Solicitor General
Nicholas M. Sydow, Deputy Solicitor General
Santa Fe, NM

for Petitioner

John W. Caldwell, Jr., County Attorney
Hobbs, NM

Ray Pena McChristian, P.C.
Jeffrey T. Lucky
Brian P. Brack
Albuquerque, NM

for Respondent Board of County Commissioners for Lea County
NM Local Government Law, LLC
Randy M. Autio
Michael I. Garcia
Albuquerque, NM

Alliance Defending Freedom
Daniel Tadhg Bagley
Erin M. Hawley
Washington, DC

for Respondent Board of County Commissioners for Roosevelt County

Law Offices of Michael J. Seibel
Michael J. Seibel
Albuquerque, NM

for Respondents City of Clovis and City of Hobbs

Efren A. Cortez
Hobbs, NM

for Respondent City of Hobbs

Crowley & Gribble, P.C.
Joseph J. Gribble
Albuquerque, NM

Alliance Defending Freedom
Erin M. Hawley
Washington, DC

for Amici Curiae New Mexico Family Action Movement, Right to Life Committee of New
Mexico, and New Mexico Alliance for Life

Peifer, Hanson, Mullins & Baker, P.A.
Mark T. Baker
Rebekah A. Gallegos
Albuquerque, NM

for Amici Curiae Planned Parenthood of the Rocky Mountains, American College of
Obstetricians and Gynecologists, and Bold Futures NM

Bleus & Associates, LLC
Nicholas J. Rimmer
Albuquerque, NM

Lawyering Project
Juanluis Rodriguez
Melissa Shube
Brooklyn, NY

for Amicus Curiae Eastern New Mexico Rising

Elinor J. Rushforth
María Martínez Sánchez
Albuquerque, NM

for Amicus Curiae American Civil Liberties Union

                                        OPINION

BACON, Justice.

I.     INTRODUCTION

{1}     This mandamus proceeding concerns the authority of county and municipal
officials to enact local ordinances regulating abortion, as well as clinics and providers.
Exercising our original jurisdiction, we consider whether officials in Lea and Roosevelt
counties and the cities of Clovis and Hobbs (Respondents) exceeded their authority by
enacting ordinances preempted by state law.

{2}    The ordinances at issue (collectively, the Ordinances) create blanket prohibitions
on the mailing or receipt of any abortion-related instrumentality, which purport to be in
“compliance with federal law,” namely portions of the Comstock Act, 

-
62. See Hobbs, N.M., Ordinance No. 1147, chs. 5.52.010-.090 (2022) (Hobbs
Ordinance) (amending Title 5 of the Hobbs Municipal Code); Clovis, N.M., Ordinance
No. 2184-2022, chs. 9.90.010-.070 (2023) (Clovis Ordinance) (amending Title 9 of the
Clovis City Code); Roosevelt County, N.M., Ordinance No. 2023-01, §§ 1-10 (Jan. 10,
2023) (Roosevelt Cnty. Ordinance); Lea County, N.M., Ordinance No. 99, §§ 1-8 (Dec.
8, 2022) (Lea Cnty. Ordinance). Additionally, three of the Ordinances create licensing
schemes (collectively, licensing Ordinances) exclusive to abortion clinics and providers
that mandate clinic compliance with the Comstock Act and vest city commissioners and
county managers with sole discretion for licensure approval. See Hobbs Ordinance No.
1147, chs. 5.52.030-.060; Clovis Ordinance No. 2184-2022, chs. 9.90.020-.050;
Roosevelt Cnty. Ordinance No. 2023-01, §§ 5-8.

{3}     The State of New Mexico (the State) seeks a writ of prohibitory mandamus to
restrain Respondents from enforcing the Ordinances and to invalidate the Ordinances
as preempted by state law. In the alternative, the State argues the Ordinances violate
the Equal Rights Amendment under Article II, Section 18 of the New Mexico
Constitution. The State contends that by “singl[ing] out abortion for burdensome
regulation and civil liability,” the Ordinances contain an impermissible sex-based
classification that presumptively violates our Equal Rights Amendment. See N.M. Right
to Choose/NARAL v. Johnson, 

, 

, 

(holding that a rule prohibiting state funding for medically necessary abortions violated
the Equal Rights Amendment). Relatedly, the State asserts that the right to terminate a
pregnancy is an inherent right embraced under the trifold protections of due process,
privacy, and the inherent rights clause. N.M. Const. art. II, §§ 18, 10, 4.

{4}     Because we conclude the Ordinances, in their entirety, plainly conflict with
provisions of the Reproductive and Gender-Affirming Health Care Freedom Act (the
Health Care Freedom Act or the Act), NMSA 1978, §§ 24-34-1 to -5 (2023), we hold the
Ordinances are preempted by state law. Additionally, because the licensing Ordinances
conflict with the Medical Practice Act (MPA), NMSA 1978, §§ 61-6-1 to -34 (1978, as
amended through 2023); the Medical Malpractice Act (MMA), NMSA 1978, §§ 41-5-1 to
-29 (1978, as amended through 2023); the Health Care Code (HCC), NMSA 1978, §§
24A-1-1 to -20 (1978, as amended through 2024); and the due process provisions of the
Uniform Licensing Act (ULA), NMSA 1978, §§ 61-1-1 to -37 (1957, as amended through
2024), we hold the licensing Ordinances are also preempted by those state laws. We
therefore decline to reach the State’s additional arguments under the New Mexico
Constitution. See Allen v. LeMaster, 

, 

 (“It is an
enduring principle of constitutional jurisprudence that courts will avoid deciding
constitutional questions unless required to do so.” (internal quotation marks and citation
omitted)). Our forbearance of the constitutional questions, however, should not be
construed as commentary on their merit. Rather, we heed the canon of constitutional
avoidance and refrain from deciding constitutional issues unnecessary to the disposition
of this case. Id.; see also State v. Radosevich, 

, 

(“[W]e must be guided by the well-established principle of statutory construction that
statutes should be construed, if possible, to avoid constitutional questions.” (internal
quotation marks and citation omitted)).

{5}    We similarly decline to address Respondents’ arguments with respect to the
Comstock Act and federal preemption, which we deem unnecessary to the resolution of
the issues before this Court. We therefore emphasize that our decision to grant the writ
of prohibitory mandamus and invalidate the Ordinances on the basis of state law
preemption rests solely on state law grounds. See Michigan v. Long, 

 (1983) (“If the state court decision indicates clearly and expressly that it is
alternatively based on bona fide separate, adequate, and independent grounds, we, of
course, will not undertake to review the decision.”).

II.     BACKGROUND

{6}    We first review the factual and legal developments that led to the State’s petition
for a writ of prohibitory mandamus. The Ordinances did not arise in a vacuum. Indeed,
these local laws are precisely the result presaged by the dissent in Dobbs v. Jackson
Women’s Health Organization, 

 (2022) (Breyer, Sotomayor, and
Kagan, JJ., dissenting). 1 By overturning Roe v. Wade, 

 (1973), and

1“And because, as the Court has often stated, protecting fetal life is rational, [s]tates will feel free to enact
all manner of restrictions. The Mississippi law at issue here bars abortions after the 15th week of
pregnancy. Under the majority’s ruling, though, another [s]tate’s law could do so after ten weeks, or five
or three or one—or, again, from the moment of fertilization. States have already passed such laws, in
declaring the authority to regulate abortions a state issue, Dobbs invited the kind of
intrastate conflicts created by the Ordinances, which must be resolved under state law.
See Dobbs, 

. Ultimately, the issues before this Court reduce to whether
mandamus lies in the action brought by the State and whether state law preempts the
Ordinances.

A.      The Repeal of New Mexico’s Abortion Ban and Enactment of Laws
        Protecting Access to Abortion

{7}    For fifty-seven years, New Mexico classified abortion as a fourth-degree felony
offense. See NMSA 1953, §§ 40A-5-1 to -3 (1963) (repealed as amended and
renumbered 2021). Our criminal code during that period reflected a near-total abortion
ban which, while unenforceable under Roe v. Wade, imposed criminal liability for
providing abortions unless deemed necessary “to preserve the life of the woman or to
prevent serious and permanent bodily injury.” Sections 40A-5-1 to -3; see also Roe v.
Wade, 

. In 2021, our Legislature repealed the state’s criminal
abortion ban thereby removing significant barriers to abortion access, including
abolishing criminal penalties for abortion, eliminating consent requirements for minors
seeking an abortion, and abandoning prohibitions on the prescription and dispensing of
medication abortions by non-physician medical professionals, such as nurses. See
NMSA 1978, §§ 30-5-1, -3 (1969), (repealed 2021); State v. Strance, 

,
¶ 8, 

, 

 (discussing a “justified medical termination”).

{8}      The repeal of criminal abortion ushered in subsequent legislative and executive
actions that broadened access to abortion. See, e.g., §§ 24-34-1 to -5; State of N.M.,
Exec. Ord. 2022-107 (June 27, 2022) (clarifying executive policy protecting access to
reproductive health care services including abortion); State of N.M., Exec. Ord. 2022-
123 (Aug. 31, 2022) (providing funding for a comprehensive reproductive health care
clinic in Doña Ana County on the state’s southern border). Of central importance to this
proceeding, the Health Care Freedom Act, the first substantive enactment affirmatively
addressing the right to access reproductive health care in New Mexico, went into effect
June 16, 2023. See §§ 24-34-1 to -5. The Act prohibits any public body, 2 entity, or
individual from interfering with access to reproductive or gender-affirming health care
and imposes penalties for violations of the Act’s provisions. Sections 24-34-3 to -4. As
public bodies, all cities and counties within the state—including Hobbs, Clovis, Lea
County, and Roosevelt County—are subject to the language of the Act. Further, the Act
creates a private right of action to bring suit against any public body or entity for




anticipation of today’s ruling. More will follow. Some [s]tates have enacted laws extending to all forms of
abortion procedure, including taking medication in one’s own home.” Dobbs, 

 (Breyer,
Sotomayor, and Kagan, JJ., dissenting).
2Under Section 24-34-2(B), a “public body” is defined as “a state or local government, an advisory board,
a commission, an agency or an entity created by the constitution of New Mexico or any branch of
government that receives public funding, including political subdivisions, special tax districts, school
districts and institutions of higher education.”
violating the Act. 3 Section 24-34-5. Notably, the Ordinances emerged amidst these
significant legislative and executive actions protecting access to abortion. 4

B.      The Ordinances Purport to Require Compliance with Federal Law and to
        Impose Licensing Requirements on Abortion Clinics

{9}     From our reading of the Ordinances, we distill the following: the Ordinances
contain nearly identical language and seek to restrict local access to abortion services
by purportedly requiring compliance with the federal Comstock Act. See Hobbs
Ordinance No. 1147, ch. 5.52.070; Clovis Ordinance No. 2184-2022, ch. 9.90.060;
Roosevelt Cnty. Ordinance No. 2023-01, §§ 2, 9; Lea Cnty. Ordinance No. 99, § 6. The
Comstock Act, in part, imposes felony liability for the mailing of “[e]very article or thing
designed, adapted, or intended for producing abortion, or for any indecent or immoral
use; . . . Every article, instrument, substance, drug, medicine, or thing which is
advertised or described in a manner calculated to lead another to use or apply it for
producing abortion, or for any indecent or immoral purpose.” 5 

.

{10} The Hobbs, Clovis, and Roosevelt County Ordinances also create unique
licensing schemes for the operation of abortion clinics and for the provision of abortions
generally. See Hobbs Ordinance No. 1147, chs. 5.52.030-.060; Clovis Ordinance No.
2184-2022, chs. 9.90.020-.050; Roosevelt Cnty. Ordinance No. 2023-01, §§ 5-8.
Significantly, two of the ordinances broadly define abortion clinics as “any building or
facility, other than a hospital, where an abortion of any type is performed, or where
abortion-inducing drugs are dispensed, distributed, or ingested.” Hobbs Ordinance No.
1147, ch. 5.52.020; Roosevelt Cnty. Ordinance No. 2023-01, § 1(B). Under these
definitions, any location where an abortion is performed—other than a hospital—is an
abortion clinic subject to the Ordinances’ licensure requirements.

{11} Additionally, the two county ordinances authorize penalties and statutory
damages for violation of the ordinances. The Lea County ordinance provides for

3Pursuant to Section 24-34-5(A), “[a] person claiming to be aggrieved by a violation of the Reproductive
and Gender-Affirming Health Care Freedom Act may maintain an action in district court for appropriate
relief, including temporary, preliminary or permanent injunctive relief, compensatory damages or punitive
damages, or the sum of five thousand dollars ($5,000) for each violation of the Reproductive and Gender-
Affirming Health Care Freedom Act, whichever is greater.”
4The Ordinances were adopted in late 2022 and early 2023: the city of Hobbs ordinance No. 1147 was
adopted on November 7, 2022; Lea County ordinance No. 99 was adopted on December 8, 2022; the city
of Clovis ordinance No. 2184-2022 was adopted on January 5, 2023; and Roosevelt County ordinance
No. 2023-01 was adopted on January 10, 2023.
5In 2022, the Office of Legal Counsel for the United States Department of Justice issued commentary
clarifying the application of the Comstock Act. See Application of the Comstock Act to the Mailing of
Prescription Drugs That Can Be Used for Abortions, 

 (2022),
https://www.justice.gov/olc/opinion/application-comstock-act-mailing-prescription-drugs-can-be-used-
abortions (last visited Dec. 20, 2024) (“Section 1461 of title 18 of the U.S. Code does not prohibit the
mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the
recipient of the drugs will use them unlawfully. Because there are manifold ways in which recipients in
every state may lawfully use such drugs, including to produce an abortion, the mere mailing of such drugs
to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used
unlawfully.”).
penalties amounting to $300 per violation of the Comstock Act, which includes aiding
and abetting a violation of the Comstock Act. Lea Cnty. Ordinance No. 99, §§ 6-7.
Similarly, Roosevelt County’s ordinance creates a private cause of action providing that
any person can “bring a civil action against any person or entity” that violates the
Comstock Act and upon prevailing may claim statutory damages of “not less than
$100,000 for each violation.” Roosevelt Cnty. Ordinance No. 2023-01, § 3(A), (B)(3).

{12} In response to the passage of the Ordinances, the State filed a petition for a writ
of mandamus and stay of Respondents’ enforcement of the Ordinances. The Court
granted the stay, ordered briefing, and held oral argument. For the reasons that follow,
we now grant the petition for a writ of mandamus.

III.   DISCUSSION

A.     The Exercise of Mandamus Jurisdiction Is Appropriate and Expeditious
       Resolution of This Issue Is Required

{13} We first consider whether mandamus is the proper remedy for the State’s action.
We exercise original jurisdiction in mandamus under Article VI, Section 3 of the New
Mexico Constitution. See N.M. Const. art. VI, § 3 (“The supreme court shall have
original jurisdiction in . . . mandamus against all state officers, boards and commissions
. . . ; it shall also have power to issue writs of mandamus . . . and to hear and determine
the same.”); see also State ex rel. Sandel v. N.M. Pub. Util. Comm’n, 

, 

, 

 (discussing the Court’s original jurisdiction in
mandamus). We reserve our exercise of mandamus for extraordinary circumstances.
See State ex rel. Richardson v. Fifth Jud. Dist. Nominating Comm’n, 

, 

, 

. When appropriate, mandamus has both compulsory
and prohibitory effects. See State ex rel. Sugg v. Oliver, 

, 

 (“[M]andamus is most often applied to compel the performance of an affirmative
act . . . [or] to prohibit unconstitutional official action.” (internal quotation marks and
citations omitted)). Therefore, mandamus “will lie only to force a clear legal right against
one having a clear legal duty to perform an act” or “to prohibit unconstitutional official
action.” State ex rel. Riddle v. Oliver, 

, 

 (internal
quotation marks and citations omitted). “‘In considering whether to issue a prohibitory
mandamus, we do not assess the wisdom of the public official’s act; we determine
whether that act goes beyond the bounds established by the New Mexico Constitution.’”
Adobe Whitewater Club of N.M. v. State Game Comm’n, 

, ¶ 9, 

 (quoting Am. Fed’n of State, Cnty. & Mun. Emps. v. Martinez, 

, 

, 

).

{14} Respondents dispute the propriety of mandamus in this case. We have
previously held that mandamus will lie when “a petitioner [seeks] to restrain one branch
of government from unduly encroaching or interfering with the authority of another
branch” and the question concerns “a purely legal issue concerning the non-
discretionary duty of a government official.” Sandel, 

. Under such
circumstances, Sandel guides our inquiry through application of a three-part test that
queries whether the issue:
       (1) implicates fundamental constitutional questions of great public
       importance, (2) can be answered on the basis of virtually undisputed facts,
       and (3) calls for an expeditious resolution that cannot be obtained through
       other channels such as a direct appeal.

{15} Although this case does not implicate the separation of powers in a strict sense,
it is well established that “mandamus is a discretionary writ and flexible by nature.”
Riddle, 

. Indeed, “[t]his Court has never insisted upon a technical
approach to the application of mandamus where there is involved a question of great
public import and where other remedies might be inadequate to address that question.”

 (internal quotation marks and citation omitted). The question here readily meets that
standard, where we are called upon to decide whether multiple inferior political
subdivisions have unduly encroached on or interfered with the plenary authority of the
Legislature. In addition, this question presents a purely legal issue concerning whether
Respondents exceeded their authority by enacting the Ordinances in conflict with
general laws of the state thereby interfering with the Legislature’s plenary authority to
make laws regulating abortion clinics and providers. See Sandel, 

(discussing the Court’s jurisdiction in mandamus where one branch of government has
encroached on another); N.M. Const. art. III, § 1 (establishing separation of powers);
NMSA 1978, § 3-17-1 (1993) (establishing municipalities’ power to adopt ordinances);
NMSA 1978, § 4-37-1 (1975) (establishing counties’ power to adopt ordinances).

{16} Of the three Sandel factors, only the third requires consideration. We have
already determined that the issue implicates great public importance, and we are
persuaded that the validity of the Ordinances can be decided on the basis of virtually
undisputed facts. We therefore address the parties’ arguments about whether the issue
“calls for an expeditious resolution that cannot be obtained through other channels such
as a direct appeal.” Sandel, 

.

{17} Expeditious resolution is required here, the State argues, because the
Ordinances “severely restrict access to reproductive health care in those cities and
counties.” The State urges that if we decline to issue prohibitory mandamus, local
governments “will continue to pass laws that attempt to regulate and prohibit abortion”
and that such laws have a chilling effect on the exercise of New Mexicans’ constitutional
rights, and on the provision of care by medical professionals. Conceding this matter
could have first been brought in district court, the State nonetheless submits that
mandamus provides an appropriate means of bringing about definitive resolution.

{18} Quoting State ex rel. Bird v. Apodaca, Respondent Roosevelt County counters
that, in general, this Court “defer[s] to the district court so that we may have the benefit
of a complete record and so the issues may be more clearly defined.” 

,
¶ 5, 

, 

. While that may be true in general, our consideration of
the purely legal question in this case does not suffer for lack of a complete record or
clarity. Irrespective of whether relief from the district court may be available, mandamus
may still be proper “when issues of sufficient public importance are presented which
involve a legal and not a factual determination.” State ex rel. King v. Lyons, 2011-
NMSC-004, ¶ 23, 

, 

 (internal quotation marks and citation
omitted). This is particularly true when the boundaries of legislative, judicial, or
executive power are implicated.

{19} Alternatively, Respondents argue that an expeditious determination is
unnecessary because enforcement of the Ordinances is unlikely. They contend the
Ordinances do nothing to restrict access to abortion “because no abortion providers are
operating in any of those four jurisdictions.” In essence, Respondents claim that the
dearth of reproductive health care in their jurisdictions renders the law ineffective to
restrict access to abortion. In their view, “[t]here is no need for immediate relief when
there is no evidence or reason to believe that the ordinances are affecting abortion
access on the ground.” 6

{20} The State argues that the Ordinances are having a chilling effect on abortion
access, contrary to the clearly articulated policy of favoring abortion access established
by the Executive and Legislative branches of government. We agree with the State. We
cannot countenance Respondents’ argument that, because the sought-after care is
available 200 miles away and the State has not identified an individual who has been
affected, the Ordinances impose no restrictions on access to abortion and an
expeditious resolution is unwarranted. To the contrary, we consider the fact that no
abortion clinics or providers currently operate in any of the four jurisdictions lends
support to the State’s claim of the Ordinances’ chilling effect and the need for
expeditious resolution.

{21} Moreover, it does not follow that a lack of abortion providers and clinics in these
jurisdictions renders the Ordinances ineffective to restrict access to abortion. Indeed,
the proscribed conduct of “shipping or receiving abortion pills or abortion-related
paraphernalia” imbues the Ordinances with extraterritorial effect, thereby erecting a
dragnet of considerable reach that threatens to ensnare patient and provider alike.
Thus, the potential impacts of the Ordinances, including the likelihood that they will have
a chilling effect, convince us this issue warrants expeditious resolution.

{22} Yet another factor favors our expeditious resolution of this issue. Additional
county and municipal ordinances—nearly identical to those at issue here—are in effect
across the state. Consequently, potential conflicts with legislative authority continue
unabated. Thus, our resolution of this issue will answer whether these conflicts with
state law may continue. Accordingly, because “[t]his Court on several occasions has
recognized that mandamus is an appropriate means to prohibit unlawful or


6Amicus, Eastern New Mexico Rising (ENMR), raises countervailing considerations in explaining why this
is not so. Specifically, ENMR argues that the Ordinances’ adoption of the Comstock Act’s prohibition on
the mailing or receipt of any “abortion pills or abortion-related paraphernalia” has a disproportionate
impact on pregnant people living in rural communities for whom telemedicine abortion care is the
preferred option. The alternative, ENMR points out, is a 200-mile trek to obtain care, a hardship
disproportionately borne by low-income people, people of color, and undocumented people. Accord
Dobbs, 

 (Breyer, Sotomayor, and Kagan, JJ., dissenting) (“Above all others, women
lacking financial resources will suffer from today’s decision.”).
unconstitutional official action,” and this case implicates encroachment on the
Legislature’s authority, we determine this issue warrants expeditious resolution. Sandel,

 (internal quotation marks and citation omitted). We therefore turn
to the merits of the State’s petition.

B.      County and Municipal Ordinances May Be Preempted by State Law

{23} Having determined the exercise of our mandamus jurisdiction is proper, we next
examine state law preemption of the Ordinances. The State argues that Respondents’
enactment of the Ordinances constitutes an invasion of the Legislature’s authority by
conflicting with four general state laws: the Health Care Freedom Act, the MPA, the
MMA, and the Public Health Act (PHA), NMSA 1978, §§ 24-1-1 to -44 (1973, as
amended through 2024). While the State cites Sections 24-1-3 and 24-1-5 of the PHA
for purposes of licensure of all health facilities, we note here and incorporate hereafter
in its place the HCC, the enactment of which during the pendency of this case
transferred the “health facility licensing and certification bureau” to the Health Care
Authority (the Authority). 7 See § 24A-1-5 annot. (July 1, 2024).

{24} While federal preemption is a constitutional doctrine “rooted in the Supremacy
Clause of the United States Constitution,” no such analog to the Supremacy Clause
exists in the Constitution of New Mexico. Schmidt v. Tavenner’s Towing & Recovery,
LLC, 

, ¶ 7, 

; U.S. Const. art. VI. Notwithstanding this
federal distinction, state preemption analysis flows from our interpretation of our state
constitution as granting the Legislature “plenary . . . authority limited only by the state
and federal constitutions.” Daniels v. Watson, 

, ¶ 16, 

, 

 (internal quotation marks and citation omitted). Thus, “[l]egislation may be
validly enacted if not inhibited by one or the other of these documents.” 

 Hence,
because only the state and federal constitutions abridge the legislative authority, no
other branch or subsidiary of state government, including political subdivisions, may
curtail the Legislature’s plenary authority to legislate. See N.M. Const. art. IV, § 1 (“The
legislative power shall be vested in a senate and house of representatives which shall
be designated the legislature of the state of New Mexico.”).

{25} Preemption doctrine protects the Legislature’s plenary authority. See N.M. Const.
art. X, §§ 5-6 (providing legislative requirements for incorporated counties and home
rule municipalities). Sections 3-17-1 (municipal ordinances) and 4-37-1 (county
ordinances) govern municipal and county authority to enact laws and, therefore, guide
our analysis of preemption. See Stennis v. City of Santa Fe, 

, 

, 

 (“Under New Mexico law, ‘a municipality may adopt ordinances
or resolutions not inconsistent with’ state law.” (quoting § 3-17-1)).

{26} Because Respondent cities of Hobbs and Clovis are home rule municipalities,
and Lea and Roosevelt are counties, our application of preemption doctrine requires

7We note the PHA remains a general law despite the relevant role over licensure of health facilities being
transferred to the Health Care Authority. See § 24-1-3(K) (“The department has authority to . . . ensure
the quality and accessibility of health care services and the provision of health care when health care is
otherwise unavailable.”).
consideration of the distinct lawmaking authority possessed by both home rule
municipalities and counties. 8 Therefore, we begin by delineating the scope of municipal
and county authority before analyzing the State’s specific preemption challenges. The
interpretation of municipal and county ordinances is a question of law reviewed de novo.
See Stennis, 

 (“Interpretation of municipal ordinances and
statutes is a question of law that we review de novo.”).

{27} County and municipal power flows exclusively from the state. See N.M. Const.
art. X, §§ 5-6. Counties and municipalities are “instrumentalities acting under the
sovereignty of the state” to whom power has been granted to facilitate a more
convenient exercise of local governance. State v. Rodriguez, 

,

, 

; see also NMSA 1978, § 3-15-7 (1965) (authorizing municipal
charters to “provide for any system or form of government that may be deemed
expedient and beneficial to the people of the municipality”).

{28} Municipal power is granted by and derives from the Legislature through “the
process of incorporation under the Municipal [Charter] Act.” New Mexicans for Free
Enter. v. City of Santa Fe, 

, 

, 

;
NMSA 1978, §§ 3-15-1 to -16 (1965, as amended through 2018). As such,
municipalities are “an auxiliary of the state government” and subordinate to the state.
City of Albuquerque v. N.M. Pub. Regul. Comm’n, 

, 

,

 (internal quotation marks and citation omitted); Temple Baptist Church, Inc.
v. City of Albuquerque, 

, ¶ 10, 

, 

 (“It is well
settled that municipalities have no inherent right to exercise police power; their right
must derive from authority granted by the [s]tate.”).

{29} Home rule municipalities are distinct in one significant regard in that they enjoy “a
limited form of autonomy from state interference in matters of local concern.” New
Mexicans for Free Enter., 

; see also N.M. Const. art. X, § 6(D).
Therefore, municipalities chartered as home rule have greater latitude to “exercise all
legislative powers and perform all functions not expressly denied by general law or
charter.” N.M. Const. art. X, § 6(D) (emphasis added).

{30} We have “construed the meaning of ‘not expressly denied’ . . . to mean that some
express statement of the power denied must be contained in the general law in order to
effectively limit a municipality’s home-rule power.” Casuse v. City of Gallup, 1987-
NMSC-112, ¶ 5, 

, 

 (citation omitted). Therefore, home rule
municipalities need not “look to the [L]egislature for a grant of power to act, but only
look[] to legislative enactments to see if any express limitations have been placed on
their power to act.” New Mexicans for Free Enter., 

 (internal
quotation marks and citation omitted).



8Respondents Clovis and Hobbs chartered as home rule municipalities in 1971 and 2001, respectively.
See NM Legislative Handbook, Home Rule Municipalities,
https://www.nmlegis.gov/Publications/handbook/home_rule_municipalities_24.pdf (last visited Dec. 23,
2024).
{31} By contrast, “[a] county is but a political subdivision of the [s]tate, and it
possesses only such powers as are expressly granted to it by the Legislature, together
with those necessarily implied to implement those express powers.” El Dorado at Santa
Fe, Inc. v. Bd. of Cnty. Comm’rs, 

, ¶ 6, 

, 

.
Thus, home rule municipalities’ authority is positive in nature and retained unless the
Legislature has expressly abrogated it, while counties, like non-home rule
municipalities, must look to the Legislature for express grants of authority to act. See
N.M. Const. art. X, § 5(C) (“An incorporated county may exercise all powers and shall
be subject to all limitations granted to municipalities by Article 9, Section 12 of the
constitution of New Mexico and all powers granted to municipalities by statute.”); see
also § 4-37-1 (“All counties are granted the same powers that are granted municipalities
except for those powers that are inconsistent with statutory or constitutional limitations
placed on counties.”); State ex rel. Haynes v. Bonem, 

, ¶ 10, 

, 

 (noting that non-home rule municipalities incorporated before 1970
“looked to state statutes for express or implied grants of authority, and if they did not
find such authority, they could not act”).

{32} As these authorities demonstrate, the power of home rule municipalities and
counties is subject to the supremacy of state law. See § 3-17-1 (“The governing body of
a municipality may adopt ordinances or resolutions not inconsistent with the laws of
New Mexico.”); § 4-37-1 (“The board of county commissioners may make and publish
any ordinance to discharge these powers not inconsistent with statutory or constitutional
limitations placed on counties.”). Therefore, when a conflict arises between state and
local law, local authority must yield.

{33} Whether a local law is inconsistent with state law and is therefore preempted
requires analysis under our governing test for preemption. We examine whether “the
ordinance permits an act the general law prohibits, or vice versa.” Stennis, 2008-NMSC-
008, ¶ 21 (internal quotation marks and citation omitted). We also inquire whether the
regulated activity “is of such a character that local prohibitions on those activities would
be inconsistent with or antagonistic to that state law or policy.” New Mexicans for Free
Enter., 

. Additionally, a municipality’s “ability to regulate in an
area may be preempted either expressly, by the language of a statute, or impliedly, due
to a conflict between the local body’s ordinances and the contents, purposes, or
pervasive scheme of the statute.” San Pedro Mining Corp. v. Bd. of Cnty. Comm’rs,

, ¶ 9, 

, 

. Because municipalities are
“presumed to retain the power to exercise [their] normal authority over an activity,”
express preemption is found where the Legislature has clearly stated its intent to
preempt local control. 

 Alternatively, implied preemption is found where the ordinance
presents a “conflict[] with a state statute or regulation, or if the statute demonstrates an
intent to occupy the entire field.” Id. ¶ 11.

{34} Therefore, our analysis of preemption encompasses three questions: 1) whether
there is a general law at issue, 2) whether the exercise of municipal or county power is
expressly denied by general law, and 3) whether the municipal or county power is
implicitly denied by general law.
C.      The Ordinances Are Expressly and Implicitly Preempted by State Law

1.      The Health Care Freedom Act, MPA, MMA, ULA and HCC are general laws

{35} A general law is one which “applies generally throughout the state.” Haynes,

, ¶ 15 (internal quotation marks and citation omitted). In determining
whether a law is general, we focus “on the impact of the law and whether it implicates
matters of statewide concern, as opposed to matters of purely local concern.” Id. ¶ 18.

{36} “[F]or a general law to supersede a home rule municipality’s charter or ordinance,
the subject matter of the general legislative enactment must pertain to those things of
general concern to the people of the state.” Id. (internal quotation marks and citation
omitted). Accordingly, the test is “whether it affects all, most, or many of the inhabitants
of the state . . . or whether it affects only the inhabitants of the municipality and is
therefore of only local concern.” Id. ¶ 19.

{37} The statutes invoked by the State—the Health Care Freedom Act, MPA, MMA,
and HCC—as well as the ULA, implicate “matters of statewide concern, as opposed to
matters of purely local concern,” and are therefore general laws. Id. ¶ 18.

{38} We begin with the Health Care Freedom Act, which comprehensively addresses
access to reproductive and gender-affirming health care in the state. See §§ 24-34-1 to
-5. The Act’s general applicability arises from its purpose to protect access to
reproductive and gender-affirming health care. See id. These are issues “of general
concern to the people of the state” that, by virtue of their relationship to constitutional
rights, 9 necessarily “implicate[] matters of statewide concern.” Haynes, 1992-NMSC-
062, ¶ 18; see also N.M. Const. art. II, § 18. Thus, Respondents’ view that reproductive
and gender-affirming health care “affects only the inhabitants of [a] municipality” does
not abide with the Act’s purpose. Haynes, 

, ¶ 19.

{39} The Act’s general applicability is further demonstrated by its broad proscription of
any actions by public bodies and entities that discriminate, restrict, or interfere with “a
person’s ability to access or provide reproductive health care or gender-affirming health
care within the medical standard of care.” Section 24-34-3(A)-(B). That proscription
would be wholly undermined if it could be evaded or ignored by a local government or
other public body. Accordingly, the Health Care Freedom Act is a general law.

{40} The MPA’s applicability is similarly comprehensive, as demonstrated by its
pervasive regulatory scheme governing physician licensure and practice in the state.
Sections 61-6-1 to -34. The MPA’s plain language makes its general applicability
abundantly clear. Enacted “to protect the public from the improper, unprofessional,
incompetent and unlawful practice of medicine,” the MPA vests the medical board with

9In N.M. Right to Choose/NARAL, this Court held the Equal Rights Amendment precluded the Human
Services Department from restricting funding for medically necessary abortions under the state’s
Medicaid program. Pursuant to the Equal Rights Amendment, we determined that there was “no
compelling justification for treating men and women differently with respect to their medical needs.” 1999-
NMSC-005, ¶¶ 1-2.
exclusive licensing and disciplinary authority for a physician’s practice of medicine.
Section 61-6-1(B)-(C). Creating the medical board and vesting it with exclusive authority
to license and discipline physicians shows a clear legislative intent for the MPA to apply
equally to all practitioners within the state. See §§ 6-6-2, -5. Indeed, the medical board’s
authority under the MPA is subject only to the broader scheme under the ULA. As the
name implies, the ULA imposes uniformity in the licensure of professionals in the state
of New Mexico and “promote[s] uniformity with respect to the conduct of board hearings
and judicial review.” Section 61-1-28.

{41} The ULA outlines the procedural due process afforded its licensees—such as an
opportunity for a hearing, notice, and method of service—and imposes consistency on
professional licensure and disciplinary actions regardless of the requirements unique to
each professional licensing board. See §§ 61-1-3, -4, -8, -28. Thus, “because the
people of the state have an interest in maintaining a uniform system of conditions,” the
MPA and ULA apply generally throughout the state. Haynes, 

, ¶ 18
(internal quotation marks and citation omitted).

{42} The MMA is a similarly comprehensive statute, setting malpractice insurance
requirements and limitations on liability for all health care providers in the state. See §§
41-5-5 to -6. Through the MMA, we have recognized that “[t]he Legislature has clearly
demonstrated a concern for the health of the citizens of New Mexico as it is affected by
the availability of practicing physicians and assured by the availability of malpractice
insurance.” Lester v. Hall, 

, 

, 

.

{43} The fourth and final statute at issue, the HCC, encompasses broad public health
laws for New Mexico and delineates the powers of the Authority to oversee, in pertinent
part, licensure of health facilities throughout the state. Sections 24A-1-3, -5. Indeed, the
express statutory purpose of the Health Care Authority Act is “to establish a single,
unified department to administer laws and exercise functions relating to health facility
licensure.” NMSA 1978, § 9-8-3 (2023, as amended through 2024). Further, the HCC
directs the Authority to

       (1)    promulgate and enforce rules for the licensure of health facilities
       under its jurisdiction;

       (2)    license and inspect health facility premises to ensure compliance
       with laws, rules and public safety; and

       (3)    carry out such other duties as provided by law.

Section 24A-1-3(B). Like the MPA, the HCC imposes uniformity in access and quality of
health care throughout the state. See § 24A-1-3. Thus, because the HCC affects all
inhabitants of the state, we conclude it is a general law. See Haynes, 

,
¶ 19.
{44} Having concluded that the Health Care Freedom Act, the MPA, the MMA, the
ULA, and the HCC are general laws, we turn to whether the Ordinances are expressly
or implicitly preempted by these state laws.

2.      The Health Care Freedom Act expressly preempts the Ordinances

{45} Under our analysis for express preemption, we must determine whether a
general law permits acts prohibited by a local ordinance. See Stennis, 

. Under the Health Care Freedom Act, the Legislature explicitly preempted
conflicting laws or policies implemented by other public bodies: “[a] public body shall not
impose or continue in effect any law, ordinance, policy or regulation that violates or
conflicts with the provisions of [the Health Care Freedom Act].” Section 24-34-3(D). The
Ordinances are antagonistic to this legislative statement of express preemption. Cf.
New Mexicans for Free Enter., 

 (“[A]n ordinance will conflict with
state law when state law specifically allows certain activities or is of such a character
that local prohibitions on those activities would be inconsistent with or antagonistic to
that state law or policy.”). Therefore, even under the broad grant of authority to home
rule municipalities, the Ordinances fail because the Legislature expressly revoked the
authority to enact local laws in conflict with the Act.

{46} Further, the Ordinances plainly prohibit what the Health Care Freedom Act
permits. Specifically, the Ordinances interfere with access to reproductive health care,
in direct contravention of the Act. Section 24-34-3(A)-(D). The non-exhaustive list of
reproductive and gender-affirming services protected by the Act includes abortion. 10
Therefore, the Ordinances’ prohibitions on mailing abortion medication and the licensing
Ordinances’ requirements for abortion providers and expansive definitions of “abortion
clinic,” Hobbs Ordinance No. 1147, ch. 5.52.020; Roosevelt Cnty. Ordinance No. 2023-
01, § 1(B), work in tandem to deny, restrict, and interfere “with a person’s ability to
access or provide reproductive health care.” Section 24-34-3(B).

{47} Respondents dispute preemption by the Act, arguing the Ordinances merely
enforce compliance with, and are duplicative of, federal law. We disagree. While the
Ordinances restate the Comstock Act’s prohibitions, they do not, as Respondents claim,
“simply parrot” federal law. The Ordinances go significantly beyond federal
requirements by, among other things, purporting to regulate access to and licensure of
so-called abortion clinics and physicians in a manner that prohibits or interferes with
access to reproductive health care. Our Legislature’s adoption of the Health Care
Freedom Act is an express rebuke of Respondents’ actions. Indeed, the Legislature
seemingly contemplated local dissent and ensured that any conflicting law would be
expressly preempted by the Act. See § 24-34-3(D). By invalidating any existing law and
prohibiting any prospective law in conflict, the Act supplied the “express limitations . . .



10Section 24-34-2(C) lists the following services: “(1) preventing a pregnancy; (2) abortion; (3) managing
a pregnancy loss; (4) prenatal, birth, perinatal and postpartum health; (5) managing perimenopause and
menopause; (6) managing fertility; (7) treating cancers of the reproductive system; or (8) preventing or
treating sexually transmitted infections.”
on [Respondents’] power to act.” New Mexicans for Free Enter., 

;
see § 24-34-3(D).

{48} Therefore, because the Legislature stated its intent to abrogate any current or
prospective law in conflict with its provisions, we hold the Ordinances are expressly
preempted by the Act. Section 24-34-3(D).

3.    The MPA, the MMA, and the ULA implicitly preempt the licensing
      Ordinances

{49} While the foregoing analysis is sufficient to grant the relief sought by the State,
we also hold that the licensing Ordinances are implicitly preempted by the MPA and
ULA because of the Legislature’s “intent to occupy the entire field” of licensure for
medical professionals. San Pedro Mining Corp., 

, ¶ 11. The purpose of
the MPA is to “provide laws and rules controlling the granting and use of the privilege to
practice medicine and to establish a medical board to implement and enforce the laws
and rules.” Section 61-6-1(B). The pervasive regulatory scheme under both the MPA
and ULA demonstrates the Legislature’s intent to occupy the field of medical licensure
specifically, and state professional licensure generally. See Casuse, 

, ¶
6 (“[A]ny New Mexico law that clearly intends to preempt a governmental area should
be sufficient without necessarily stating that affected municipalities must comply and
cannot operate to the contrary.” (citation omitted)). The MMA affects the same
pervasive regulatory scheme by effecting “adequate access to health care services” and
a process for recovery “for any malpractice claims.” Baker v. Hedstrom, 2013-NMSC-
043, ¶ 20, 

.

{50} The Ordinances prohibit any person from violating the Comstock Act’s provisions
under 

(c) (mailing or receipt of any abortion pills or abortion-related
paraphernalia). See Hobbs Ordinance No. 1147, ch. 5.52.070; Clovis Ordinance No.
2184-2022, ch. 9.90.060; Roosevelt Cnty. Ordinance No. 2023-01, §§ 2, 9; Lea Cnty.
Ordinance No. 99, § 6. As previously noted, the Hobbs and Roosevelt ordinances
define abortion clinics in exceedingly broad terms, the effect of which potentially
subjects any provider operating outside a hospital to the Ordinances’ licensing
schemes. See Hobbs Ordinance No. 1147, ch. 5.52.020; Roosevelt Cnty. Ordinance
No. 2023-01, § 1(B). This is because a provider who performs an abortion in “any
building or facility, other than a hospital” must first apply for what the Ordinances term
an “abortion license.” See Hobbs Ordinance No. 1147, chs. 5.52.020-.030; Roosevelt
Cnty. Ordinance No. 2023-01, §§ 1(B), 5; see also Clovis Ordinance No. 2184-2022, ch.
9.90.020 (creating a licensure requirement for abortion clinics). Failure to secure an
abortion license and any activity that purportedly violates the Comstock Act results in a
violation of the ordinance. See Hobbs Ordinance No. 1147, chs. 5.52.030-.070;
Roosevelt Cnty. Ordinance No. 2023-01, §§ 5-9; Clovis Ordinance No. 2184-2022, chs.
9.90.020-.060.

{51} The Ordinances’ requirements for a separate license to perform an individual
medical procedure is incongruous with the purpose of uniformity in licensing under the
ULA. See § 61-1-28. Further, the manner of piecemeal licensure imposed by the
licensing Ordinances and potential liability for practitioners who provide abortion-related
care would defeat the MPA’s purpose to ensure the practice of medicine within the
standard of care that applies equally to all procedures, as well as the legislative intent of
the MMA to ensure availability of health care. See § 61-6-1; Baker, 

.

{52} Moreover, by placing the authority to issue and revoke licenses with county
managers and city commissioners, the licensing Ordinances disregard the due process
protections enshrined in the ULA to ensure professionals seeking a license have
adequate notice and opportunity to respond to violations. See §§ 61-1-3, -4, -8, -28;
Hobbs Ordinance No. 1147, ch. 5.52.060; Clovis Ordinance No. 2184-2022, ch.
9.90.050; Roosevelt Cnty. Ordinance No. 2023-01, § 8. More directly, the licensing
Ordinances conflict with the ULA’s express prohibition of actions by boards against
licensees or license applicants related to protected health care activity as defined in the
Health Care Freedom Act. See § 61-1-10.1. Again, it would be incongruous to allow
Respondents to discipline licensed professionals for activities that are exempt from
discipline by their own licensing boards. Therefore, we are unpersuaded by
Respondents’ claims that the ordinances are “not a ‘medical licensing regime’” and that
the ordinances “do nothing to restrict physicians or anyone else from performing
abortions in New Mexico.”

{53} If permitted to stand, the licensing Ordinances would subvert the state’s
regulatory regime for the practice of medicine. The purpose of the MPA is to “provide
laws and rules controlling the granting and use of the privilege to practice medicine.”
Section 61-6-1(B). The Ordinances disrupt this purpose by creating a parallel system
under which pregnant people would be disproportionately exposed to the very risks the
MPA seeks to eliminate—“the improper, unprofessional, incompetent and unlawful
practice of medicine.” Id. Additionally, the Ordinances’ requirements implicate the
availability of health care services and providers in the state, thus conflicting with the
legislative goals of the MMA. See Baker, 

 (noting the MMA
“provid[ed] incentives to persons to furnish health care services” to ensure their
availability (citation omitted)). Our test is unequivocal: “when two statutes that are
governmental or regulatory in nature conflict, the law of the sovereign controls.” Casuse,

, ¶ 6. Accordingly, we hold the licensing Ordinances are implicitly
preempted by the MPA, MMA, and ULA.

4.     The HCC implicitly preempts the licensing Ordinances

{54} Lastly, we conclude the licensing Ordinances are implicitly preempted by the
HCC for two reasons. First, the Legislature has demonstrated an intent to preempt
under the HCC by creating a comprehensive licensing scheme addressing the
requirements for operating a health facility. See § 24A-1-5; 8.370.18.2 NMAC. Pertinent
here, the Authority’s power pursuant to the HCC extends to definition and licensure of
health facilities throughout the state, the scope of which encompasses “abortion clinics”
as defined in the Hobbs and Roosevelt ordinances and discussed above. 11 See § 24A-
1-5; Hobbs Ordinance No. 1147, ch. 5.52.020; Roosevelt Cnty. Ordinance No. 2023-01,
§ 1(B). Additionally, to ensure uniformity across the state, health facility regulations
governing licensure requirements for all manner of health facilities have been
promulgated under the Authority’s purview. See 8.370.18 NMAC. Specifically, the HCC
mandates that “a health facility shall not be operated without a license issued by the
authority,” and the regulations identify the Authority as the exclusive licensing entity for
health facilities. Section 24A-1-5(A) (emphasis added); 8.370.18.7(J) NMAC.

{55} The Authority’s rules also include licensure procedures to which various kinds of
health facilities are subject. 8.370.18.9-.18 NMAC. Under these rules, “[a] one-year
nontransferable license shall be issued to any health facility complying with all rules of
the authority.” Section 24A-1-5(E). Thus, the license is conditioned solely on compliance
with the rules of the Authority.

{56} The licensing Ordinances usurp the Authority’s licensing authority, principally by
imposing separate licensing requirements for the operation of a health facility and
secondarily by creating new requirements beyond that which is mandated by state law.
For example, under the licensing Ordinances, an abortion clinic or health facility
providing abortions must provide a statement of compliance with the Comstock Act. See
Hobbs Ordinance No. 1147, ch. 5.52.040(F); Clovis Ordinance No. 2184-2022, ch.
9.90.030(F); Roosevelt Cnty. Ordinance No. 2023-01, § 6(F). The licensing Ordinances
thus eschew the Authority’s facility licensing requirements in favor of their own and
contravene the HCC by attempting to “control the manner” in which licenses are issued.
See ACLU v. City of Albuquerque, 

, 

, 

 (holding an Albuquerque curfew ordinance was implicitly preempted by state law).

{57} Second, the Legislature has implicitly preempted the licensing Ordinances by
virtue of the HCC’s “statutory grant of authority to another governmental body”—the
Authority—and piecemeal local action would be inconsistent with the Authority’s
delegated role. New Mexicans for Free Enter., 

. In New Mexicans
for Free Enterprise, the Court of Appeals held the Minimum Wage Act did not preempt a
municipal wage ordinance, in part, because the act did “not grant comprehensive
authority to set minimum wages to the state.” 

 Conversely, here, the HCC grants
comprehensive authority as the sole licensing entity for health facilities to the Authority.
See § 24A-1-5(A) (“A health facility shall not be operated without a license issued by the
authority.”); 8.370.18.7(J) NMAC.

{58} By placing the power to approve or deny licenses with city commissions and
county managers, the Ordinances impermissibly intrude upon the Authority’s exclusive
licensing purview. See Hobbs Ordinance No. 1147, ch. 5.52.050 and Clovis Ordinance

11The HCC defines a “health facility” as “a public hospital; profit or nonprofit private hospital; general or
special hospital; outpatient facility; crisis triage center; freestanding birth center; adult daycare facility;
nursing home; intermediate care facility; assisted living facility; boarding home not under the control of an
institution of higher learning; shelter care home; diagnostic and treatment center; rehabilitation center;
infirmary; community mental health center that serves both children and adults or adults only; or a health
service organization operating as a freestanding hospice or a home health agency.” Section 24A-1-2(D).
No. 2184-2022, ch. 9.90.040 (placing authority to issue a license with the city
commissions); Roosevelt Cnty. Ordinance No. 2023-01, § 7 (placing authority to issue a
license with the County Manager). In short, because the HCC creates a comprehensive
licensing scheme for operating a health facility throughout the state and specifically
governs health facility licensure, we conclude the licensing Ordinances are preempted.
See § 24A-1-5; 8.370.18.2 NMAC.

D.     Respondents Exceeded Their Constitutional and Statutory Authority

{59} In addition to being explicitly and implicitly preempted by multiple state laws, the
Ordinances purportedly create individual rights that affect matters beyond Respondents’
authority under the New Mexico Constitution and statutes. Local governments may not
enact “private or civil laws governing civil relationships except as incident to the
exercise of an independent municipal power.” N.M. Const. art. X, § 6(D). Roosevelt
County’s ordinance authorizes a private right of action providing that any person other
than a government employee may bring civil action and seek statutory damages of “not
less than $100,000 for each violation” of the section of the ordinance requiring
individuals to comply with the Comstock Act. Roosevelt Cnty. Ordinance No. 2023-01,
§§ 3, 2(A)-(C). The Lea County ordinance imposes a $300 fine for violations, including
for “conduct that aids or abets . . . violations” of the Comstock Act. Lea Cnty. Ordinance
No. 99, §§ 6.3, 7.

{60} Respondents argue the Ordinances constitute a lawful exercise of their police
powers to license business and legislate for the health and safety of county and
municipal inhabitants. However, “[a] municipality has no inherent right to exercise police
power. Its powers are derived solely from the state.” City of Santa Fe v. Gamble-
Skogmo, Inc., 

, ¶ 7, 

, 

. Because Respondents’
authority to regulate health care access and physician licensure is entirely preempted,
Respondents’ police powers in these areas are extremely limited. To the extent
Respondents have any residual authority, they certainly have no power to supplant the
will of the statewide electorate in favor of their own. While we decide this case under the
preemption doctrine, we strongly admonish Respondents for exceeding their authority
under Article X, Section 6(D) of the New Mexico Constitution. Creating a private right of
action and damages award that is clearly intended to punish protected conduct far
exceeds any interest that is “incident[al] to the exercise of an independent municipal
power.” N.M. Const. art. X, § 6(D).

IV.    CONCLUSION

{61} Our Legislature granted to counties and municipalities all powers and duties not
inconsistent with the laws of New Mexico. The Ordinances violate this core precept and
invade the Legislature’s authority to regulate access to and provision of reproductive
health care. Therefore, based on the independent and adequate state law grounds
provided in the Reproductive and Gender-Affirming Health Care Freedom Act, the
Medical Practice Act, the Medical Malpractice Act, and the Health Care Code, as well as
the Uniform Licensing Act, we hold the Ordinances are preempted in their entirety.
Accordingly, we grant the writ of mandamus prohibiting Respondents from enforcing the
Ordinances.

{62}   IT IS SO ORDERED.

C. SHANNON BACON, Justice

WE CONCUR:

DAVID K. THOMSON, Chief Justice

MICHAEL E. VIGIL, Justice

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice