Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance

committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports

if they are used for other purposes.

Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (legis.state.nm.us).

Adobe PDF versions include all attachments, whereas HTML versions may not. Previously issued FIRs and

attachments may be obtained from the LFC in Suite 101 of the State Capitol Building North.

F I S C A L I M P A C T R E P O R T

SPONSOR Chasey

ORIGINAL DATE

LAST UPDATED

01/24/08

HB 244

SHORT TITLE Freedom of Choice Act

SB

ANALYST Weber

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General Office (AGO)

Human Services Department (HSD)

Department of Health (DOH)

Health Policy Commission (HPC)

Medical Board

Responses Received From

Administrative Office of the Court

SUMMARY

Synopsis of Bill

House Bill 244 enacts the “Freedom of Choice Act" which generally prohibits the state from

denying or interfering with a person’s right to obtain and use contraceptives, or a female’s right

to have an abortion prior to viability of the “conceptus". The bill would also confer the right to

provide reproductive services on health care providers unimpeded by state action.

The bill also repeals state laws (NMSA 30-5-1 to 30-5-3 (1978) which generally impose fourth

degree felony penalties on persons performing abortions if the pregnancy termination is not a

“justified medical termination".

The bill appears to exempt from its provisions the general ban on “partial-birth abortions"

provided in NMSA Sections 30-5A-3 (1978).

SIGNIFICANT ISSUES

The Office of the Attorney General offers the following analysis along with the disclaimer.

This analysis is neither a formal Attorney General’s Opinion nor an Attorney General’s Advisory Opinion letter.

This is a staff analysis in response to the agency’s, committee’s or legislator’s request.

The New Mexico state law sections prohibiting an abortion other than as a “justified medical

House Bill 244 – Page

2

termination" were held unconstitutional by the New Mexico Court of Appeals in State v. Strance,

84 N.M. 670, 506 P.2d 1217 (Ct.App. 1973) relying on the United States Supreme Court

holdings in Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973). This bill

would therefore repeal ineffective and unconstitutional state law provisions which have remained

in the statutory compilation in spite of their invalidity.

Furthermore, the New Mexico Supreme Court held in New Mexico Right to Choose/NARAL v.

Johnson, 126 N.M. 788, 975 P.2d 841

(1998),cert. denied sub nom. Klecan v. New Mexico

Rights to Choose/NARAL, 526 U.S. 1020, 119 S.Ct. 1256, 143 L.Ed.2d 352 (1999) that a rule

adopted by the New Mexico Human Services Department prohibiting the use of state funds to

pay for abortions for Medicaid-eligible women except when necessary to save the life of the

mother, to end an ectopic pregnancy, or when the pregnancy resulted from rape or incest was

unconstitutional under New Mexico’s Equal Rights Amendment to Article II, Section 18 of the

State Constitution. The Court ruled:

“Rule 766 undoubtedly singles out for less favorable treatment a gender-linked condition

that is unique to women. [citations omitted]. “Since only women become pregnant,

discrimination against pregnancy by not funding abortion when it is medically necessary

and when all other medical[ly necessary] expenses are paid by the state for both men and

women is sex oriented discrimination". [citations omitted]. “We determine that Rule 766

employs a gender-based classification that operates to the disadvantage of women and is

therefore presumptively unconstitutional."

However, The New Mexico Supreme Court did not decide the issue of whether a woman's right

to reproductive choice is among the inherent rights guaranteed by Article II, Section 4 of the

New Mexico Constitution.

Other provisions in state law address the issue of provision of contraceptives in certain

situations. NMSA Sections 59A-22-42 and 59A-46-44 (1978) require insurance and HMO policy

coverage for prescription contraceptive drugs and devices. The Family Planning Act, NMSA

Sections 24-8-1 et seq. (1978) requires the provision of contraceptive procedures and services in

family planning services programs operated by the state or its governmental units. The Sexual

Assault Survivors Emergency Care Act, NMSA Sections 24-10D-1 et seq. (1978) requires the

provision of emergency contraception at the hospital if requested. This bill appears to be

consistent with those provisions.

The Department of Health adds the following:

HB 244 would repeal current state law which is in inconsistent with federal jurisprudence with

regard to a person’s privacy as it relates to the choice to have an abortion and it would further

clarify that the state can only interfere with a person’s right to choose with regard to partial birth

abortion; maintaining that partial birth abortion would still be illegal, unless very specific

circumstances exist that threaten the life of the pregnant woman.

HB 244 would ensure New Mexican females’ right to choose and obtain reproductive health

services, including safe and legal abortion care. The following seven states have passed a state

law to ensure freedom of choice: California, Connecticut, Hawaii, Maine, Maryland, Nevada,

Washington (

http://www.plannedparenthood.org

).

House Bill 244 – Page

3

HB 244 supports the New Mexico Family Planning Act (§§ 24-8-1 to 24-8-8 NMSA 1978),

which ensures that comprehensive family planning services are available to any New Mexican

who needs them.

An estimated 43.6% of live births in New Mexico in 2005 were the result of an unintended

pregnancy. Unintended pregnancies were those that were wanted later or never wanted at all.

Unintended pregnancy is associated with adverse maternal health risk behaviors and adverse

outcomes such as premature delivery, low birth weight and small size for gestational age

(

http://www.health.state.nm.us/phd/prams/home.html

). Among New Mexican women with

unintended pregnancy, 52.6% were using contraception at conception; nearly half were not. The

Freedom of Choice Act would help reduce barriers for females to obtain contraception with the

potential to reduce the rate of unintended pregnancy and improve the pregnancy outcomes in

New Mexico.

MW/mt