2020 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 5 - Abortion
Section 30-5-1 - Definitions.
As used in this article [30-5-1 to 30-5-3 NMSA 1978];
A. "pregnancy" means the implantation of an embryo in the uterus;
B. "accredited hospital" means one licensed by the health and social services department [public health division of the department of health];
C. "justified medical termination" means the intentional ending of the pregnancy of a woman at the request of said woman or if said woman is under the age of eighteen years, then at the request of said woman and her then living parent or guardian, by a physician licensed by the state of New Mexico using acceptable medical procedures in an accredited hospital upon written certification by the members of a special hospital board that:
(1) the continuation of the pregnancy, in their opinion, is likely to result in the death of the woman or the grave impairment of the physical or mental health of the woman; or
(2) the child probably will have a grave physical or mental defect; or
(3) the pregnancy resulted from rape, as defined in Sections 40A-9-2 through 40A-9-4 NMSA 1953 [repealed]. Under this paragraph, to justify a medical termination of the pregnancy, the woman must present to the special hospital board an affidavit that she has been raped and that the rape has been or will be reported to an appropriated [appropriate] law enforcement official; or
(4) the pregnancy resulted from incest;
D. "special hospital board" means a committee of two licensed physicians or their appointed alternates who are members of the medical staff at the accredited hospital where the proposed justified medical termination would be performed, and who meet for the purpose of determining the question of medical justification in an individual case, and maintain a written record of the proceedings and deliberations of such board.
History: 1953 Comp., § 40A-5-1, enacted by Laws 1969, ch. 67, § 1.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Laws 1991, ch. 25, § 16 provided that all references to the "health service division" shall be construed to be references to the "public health division".
Sections 40A-9-2 through 40A-9-4, 1953 Comp., which are referred to in Paragraph (3) Subsection C, were repealed by Laws 1975, ch. 109, § 8. The crime of rape has been replaced by the crime of criminal sexual penetration. See 30-9-11 NMSA 1978.
Repeals and reenactments. — Laws 1969, ch. 67, § 1, repealed former 40A-5-1, 1953 Comp., relating to criminal abortion, and enacted a new section.
Section partially unconstitutional. — Portions of this section which define those "justified medical terminations" not proscribed by Section 30-5-3 NMSA 1978 as only those where physician used acceptable medical procedures in accredited hospitals after approval by special hospital board, and either where continuation of pregnancy would result in death or grave injury to mother, where child was likely to have grave physical or mental defects or where pregnancy resulted from rape or incest, held unconstitutional by virtue of 1973 holdings in Doe v. Bolton (410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201) and Roe v. Wade (410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147). State v. Strance, 1973-NMCA-024, 84 N.M. 670, 506 P.2d 1217.
Enforceability of section. — Under current law, Section 30-5-2 NMSA 1978 is entirely enforceable, and this section and Section 30-5-3 NMSA 1978 are enforceable only to the extent that they criminalize and punish the act of performing an abortion on an unconsenting woman, or the performance of an abortion by a person who is not a physician licensed by the state of New Mexico. 1990 Op. Att'y Gen. No. 90-19.
Parental consent provision. — New Mexico's parental consent provision may become enforceable either through legislative enactment of amendments to existing law or, under certain circumstances, through modification of current federal abortion jurisprudence. 1990 Op. Att'y Gen. No. 90-19.
Consent of husband not required. — Consent of the husband of a woman over the age of 18 is not required when she requests a justified medical termination of her pregnancy. 1970 Op. Att'y Gen. No. 70-91.
Married woman under eighteen. — A woman under eighteen, but lawfully married, can request a justified medical termination of her pregnancy without the consent of her parent or guardian, or of her husband. 1970 Op. Att'y Gen. No. 70-91.
Divorced or separated woman. — A married woman who subsequently is divorced or separated, regardless of age, is an emancipated person who is entitled to determine herself, without the consent of any other person, whether she will request medical termination of her pregnancy hereunder. 1970 Op. Att'y Gen. No. 70-91.
Law reviews. — For article, "New Mexico's 1969 Criminal Abortion Law," see 10 Nat. Resources J. 591 (1970).
For article, "Rape Law: The Need for Reform," see 5 N.M.L. Rev. 279 (1975).
For symposium, "The Impact of the Equal Rights Amendment on the New Mexico Criminal Code," see 3 N.M.L. Rev. 106 (1973).
For comment, "Perspectives on the Abortion Decision," see 9 N.M.L. Rev. 175 (1978-79).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Constitutional right of prisoners to abortion services and facilities - federal cases, 90 A.L.R. Fed. 683.
Validity, construction, and application of statutes requiring parental notification of or consent to minor's abortion, 77 A.L.R.5th 1.
