2021 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 5A - Partial-Birth Abortion Ban
Section 30-5A-1 - Short title.

This act [30-5A-1 to 30-5A-5 NMSA 1978] may be cited as the "Partial-Birth Abortion Ban Act".

History: Laws 2000, ch. 55, § 1.

Effective dates. — Laws 2000, ch. 55 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective on May 17, 2000, 90 days after adjournment of the legislature.

Cross references. — For family planning, see 24-8-1 NMSA 1978.

For sterilization, see 24-9A-1 NMSA 1978

For maternal, fetal and infant experimentation, see 9A-24-1 NMSA 1978.

Section partially unconstitutional (decided prior to the repeal of the criminal abortion statutes, §§ 30-5-1 to 30-5-3 NMSA 1978). — Portions of this section which define those "justified medical terminations" not proscribed by Section 30-5-3 NMSA 1978 (repealed) as only those where physician used acceptable medical procedures in accredited hospitals after approval by special hospital board, and either where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.

This section does not define murder, homicide or feticide (decided prior to the repeal of the criminal abortion statutes, §§ 30-5-1 to 30-5-3 NMSA 1978), but is concerned with the special circumstances required for abortion to be a criminal offense. State v. Willis, 1982-NMCA-151, 98 N.M. 771, 652 P.2d 1222 (specially concurring opinion).

Meaning of "abortion" (decided prior to the repeal of the criminal abortion statutes, §§ 30-5-1 to 30-5-3 NMSA 1978). — The word "abortion" was commonly employed in law to designate the means used to procure miscarriage. State v. Grissom, 1930-NMSC-109, 35 N.M. 323, 298 P. 666.

Meaning of "justified medical termination" (decided prior to the repeal of the criminal abortion statutes, §§ 30-5-1 to 30-5-3 NMSA 1978). — When limited definition of "justified medical termination" necessitated by court's reading of Roe v. Wade (410 U.S. 113) and Doe v. Bolton (410 U.S. 179) into Section 30-5-1 NMSA 1978 (repealed) is applied to this section what emerges is a criminal statute penalizing the act of performing abortions on the unconsenting, or performing an abortion on a woman under the age of 18 years without the consent of both the woman and her then living parent or guardian, or the performance of an abortion by a person who is not a physician licensed by the state. State v. Strance, 1973-NMCA-024, 84 N.M. 670, 506 P.2d 1217.

Proof of pregnancy (decided prior to the repeal of the criminal abortion statutes, §§ 30-5-1 to 30-5-3 NMSA 1978). — Although there was no direct, positive proof that on the day of the first attempted abortion the fetus was living, there was ample evidence for the jury to reasonably arrive at such a conclusion where the physician who had originally examined the woman on whom the abortion was performed testified as to the tests he had made on her and expressed the opinion that she was about two months pregnant. State v. Gutierrez, 1965-NMSC-143, 75 N.M. 580, 408 P.2d 503.

Condition presumed to continue (decided prior to the repeal of the criminal abortion statutes, §§ 30-5-1 to 30-5-3 NMSA 1978). — Although there was proof which might be construed to the effect that it was impossible to tell whether on the day of the original abortion attempt the fetus was alive or dead, the rule in this jurisdiction is that a condition once shown to exist will be presumed to continue until the contrary is established by evidence, direct or presumptive. State v. Gutierrez, 1965-NMSC-143, 75 N.M. 580, 408 P.2d 503.

Evidence of other abortions (Decided prior to the repeal of the criminal abortion statutes, §§ 30-5-1 to 30-5-3 NMSA 1978). — The gist of offense under Laws 1919, ch. 4, § 1 (former 40-3-1, 1953 Comp.), was intent to murder a quick child by performing an abortion upon mother; in a prosecution under that section, proof of other abortions where the child had not quickened was not relevant and should be excluded. State v. Bassett, 1921-NMSC-016, 26 N.M. 476, 194 P. 867.

Instruments and drugs (decided prior to the repeal of the criminal abortion statutes, §§ 30-5-1 to 30-5-3 NMSA 1978). — Instruments and drugs were sufficiently connected with the accused and with the operation to make them admissible on his trial for abortion. State v. Grissom, 1930-NMSC-109, 35 N.M. 323, 298 P. 666.

Exhibition of instruments (decided prior to the repeal of the criminal abortion statutes, §§ 30-5-1 to 30-5-3 NMSA 1978). — In a prosecution for an attempted abortion, exhibition of dilator in cross-examination of accused was not error. State v. Lewis, 1932-NMSC-033, 36 N.M. 218, 12 P.2d 849.

Erroneous instructions on corroboration (decided prior to the repeal of the criminal abortion statutes, §§ 30-5-1 to 30-5-3 NMSA 1978). — In prosecution for abortion, defendant could be convicted by uncorroborated testimony of an accomplice, but where court gave instruction requiring corroboration, there must be some other evidence in the record tending to show that defendant took part in the commission of the crime. State v. Gutierrez, 1965-NMSC-143, 75 N.M. 580, 408 P.2d 503.

Enforceability of section (decided prior to the repeal of the criminal abortion statutes, §§ 30-5-1 to 30-5-3 NMSA 1978). — Under current law, Section 30-5-2 NMSA 1978 (repealed) is entirely enforceable, and this section and Section 30-5-1 NMSA 1978 (repealed) 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 (decided prior to the repeal of the criminal abortion statutes, §§ 30-5-1 to 30-5-3 NMSA 1978). — 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 (decided prior to the repeal of the criminal abortion statutes, §§ 30-5-1 to 30-5-3 NMSA 1978). — 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 (decided prior to the repeal of the criminal abortion statutes, §§ 30-5-1 to 30-5-3 NMSA 1978). — 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 (decided prior to the repeal of the criminal abortion statutes, §§ 30-5-1 to 30-5-3 NMSA 1978). — 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.

Validity of state statutes and regulations limiting or restricting public funding for abortions sought by indigent women, 20 A.L.R.4th 1166.

Medical malpractice in performance of legal abortion, 69 A.L.R.4th 875.

Parent's child support liability as affected by other parent's fraudulent misrepresentation regarding sterility or use of birth control, or refusal to abort pregnancy, 2 A.L.R.5th 337.

1 Am. Jur. 2d Abortion and Birth Control § 1 et seq.

Criminal responsibility of one other than subject or actual perpetrator of abortion, 4 A.L.R. 351.

Revocation of physician's or surgeon's license for performing abortion, 82 A.L.R. 1184.

Admissibility in prosecution for abortion of evidence of other abortions or attempted abortions by accused on same woman, 15 A.L.R.2d 1080.

Necessity, to warrant conviction of abortion, that fetus be living at time of commission of acts, 16 A.L.R.2d 949.

Pregnancy as element of abortion, 46 A.L.R.2d 1393.

1 C.J.S. Abortion and Birth Control; Family Planning §§ 10 to 12.