Commission to hold public hearing on late-term abortion ban ordinance

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On a 3-2 vote, Valencia County commissioners pushed a proposed late term abortion ordinance forward for public hearing Wednesday evening.


The vote does not approve the ordinance, which would ban abortions after 20 weeks in the unincorporated areas of the county, but rather publishes the legal title and begins the countdown to a public hearing.
The public will be able to present arguments, both for and against the proposed ordinance, at a hearing at 5 p.m., Wednesday, Dec. 11, at the county commission chambers, 444 Luna Ave., in Los Lunas.
A vote on the ordinance will most likely be scheduled for the commissioners’ Dec. 20 meeting.
The ordinance was sponsored by Commissioner Lawrence Romero, and his motion to publish was seconded by Commissioner Jhonathan Aragon.
The discussion amongst the commissioners didn’t debate the contents of the ordinance, but instead focused on the possible legal repercussions for the county if it is approved.
Commissioner Alicia Aguilar asked if the attorneys could clarify what the cost of the ordinance would be.
“I’m just asking questions,” Aguilar said. “I’m not addressing the issue, whether I’m for or against.”
County Attorney Adren Nance said unlike the city of Albuquerque, the county would not hold and pay for a special election on the ordinance.
“You had also asked about the cost for enforcement,” Nance said. “There’s really no way to quantify the cost of enforcement of an ordinance. We have code enforcement department but there’s really no way to calculate that.”
The real potential cost to the ordinance is in litigation, Nance said.
“We have groups that say they will litigate this whether it’s passed here or Albuquerque or elsewhere,” he said.
Best case scenario is the county’s insurance would cover the cost of a lawsuit, leaving it on the hook for a $10,000 deductible, Nance said.
“But insurance probably won’t cover it,” the attorney said. “There’s a real potential this could cost up to tens of thousands of dollars if litigated.”
Aguilar asked if the ordinance was unconstitutional.
“As a local board, can we go there?” she asked.
County attorney Dave Pato said the commission had the legal right to impose ordinances that addressed the health, safety and welfare of residents.
“There certainly differences in legal opinion. We reviewed a number of cases and articles to prepare for this very discussion,” Pato said. “Some take the position that it is unconstitutional and unenforceable, while others have taken the stand that the court hasn’t taken a position on the issue.”
Pato said laws and court opinions have changed at the federal level since the original Roe v. Wade.
“There are arguments on both sides but it has not been decided by a court in New Mexico or the 10th Circuit Court,” he said.
Aguilar asked if New Mexico Attorney General Gary King had issued an opinion. Pato said King has taken the position that it is not enforceable and is unconstitutional.
The commissioner asked who drafted the ordinance. Nance said he was asked by Commissioner Romero to work with Jackie Farnsworth, the person who requested the ordinance.
“This is a draft proposed by the citizenry that we have massaged and molded into the county’s ordinance form,” he said.
After the meeting, Nance said the language in the Valencia County ordinance is identical in some ways to the Albuquerque ordinance that failed on Tuesday.
Holding up a copy of petitions said to contain 1,100 signatures of residents supporting the ban, Aguilar said she believed the people had a right to be heard.
“They are saying listen to us. I’m not saying I’m for or against but I am willing to hear and listen and make a decision in the end,” she said. “Let everyone come forward and talk to us.”
Aguilar noted that since the ordinance was drafted by someone who supports the ordinance, it was important for those in opposition to come to the public hearing to testify.
After some discussion between Aguilar and Commissioner Mary Andersen over whether to table the item — something that could not be done because of Romero’s motion and Aragon’s second — Andersen said if the vote was only to publish the title of the ordinance, then she didn’t have a problem with it.
“I need more time to study this. If there are 1,100 people that show up then we’ll know,” Andersen said. “I fully expected it to pass in Albuquerque yesterday. More people voted in that than the mayoral election. This is a hot button issue.”
She continued, saying her concern was the legal ramifications for the county.
“What position does this put us in legally. No one wants this thing, but we are here to protect the county,” Andersen said.
Romero said all the commissioners could do was listen to both sides and made a decision.
“It’s not that complicated,” Romero said.
Aguilar said she received calls about the proposed ordinance. During the discussions, she told people that it would only apply to the unicorporated area of Valencia County — not the city of Belen, village of Los Lunas, town of Peralta, village of Bosque Farms or even the new town of Rio Communities.
“They asked, ‘How many clinics are there in the county?’” Aguilar said. She held up her hand, forefinger and thumb forming a circle to indicate zero.
Commission Chairman Charles Eaton said he had studied the issue from many angles since it have been brought forward.
“We have just been briefed by our attorney that this will probably immediately be challenged,” Eaton said. “I looked at issues the city of Albuquerque was facing on their referendum and they were quite expensive. This is a constitutional issue. We don’t have a demand at this time for these kinds of services in the county, especially with the defeat in Albuquerque.
“My position — after we’ve just heard of the many, many financial shortfalls we are facing — is this will put the county in a position to litigate an unconstitutional issue that will be expensive defend. I am not prepared to move forward with publication.”
Aguilar asked if he thought it would be better to table the matter, but Eaton pointed out that there was already a motion on the floor unless Romero was willing to withdraw. Romero said he wanted to continue with his motion and Aragon indicated he would not withdraw his second.
When Eaton called for the vote, Romero and Aragon immediately voted yes, and Eaton and Andersen voted no.
There was a very long pause as they waited for Aguilar to vote.
“As difficult as this can be, abstaining would not be right and I think we need to hear from the public,” she said. “I go along with commissioners Romero and Aragon.”


-- Email the author at jdendinger@news-bulletin.com.