Two Court Challenges to Abortion Rights in New Mexico – FRIDAY 3 PM; Lawsuits by Estates of Fetuses, and by Fetuses, Don’t Require New Laws
Abortion Rights In New Mexico
WASHINGTON, D.C. (October 21, 2022) – Although New Mexico is being described as an “oasis” or “safe harbor” for abortion rights in the Southwest.
Since it is largely surrounded by states imposing bans, that could suddenly change because of two different types of lawsuits which can be brought under the state’s current law, regardless of who wins the race for governor, and even if there is no new legislation.
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These new threats, frightening to those favoring abortion rights, will be explained and discussed at a conference on body autonomy and abortion rights hosted on Zoom by the University of New Mexico today, from 1:00 - 5:00 PM MT, by public interest law professor John Banzhaf.
Prof. Banzhaf is known as "The Man Behind the Ban on Cigarette Commercials," "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," the "Dean of Public Interest Lawyers," "One of America's Premier Legal Activists," a "King of Class Action Law Suits," and an "Entrepreneur of Litigation, [and] a Trial Lawyer's Trial Lawyer."
He will explain how one basis for court challenges to existing abortion rights - the legal assertion that a developing fetus has legal standing to sue to protect its own rights, sometimes called "fetal personhood" or "prenatal rights" - is now before the U,S, Supreme Court.
The Washington Post notes that fetal personhood would "grant a fetus the same legal rights (including to life) as a person." The Boston Globe warns that the legal concept could “upend the meaning of equality under the law,” and deny states “the authority to allow abortions in cases of rape or incest.”
The New York Times was equally forceful, reporting that "fetal personhood, which confers legal rights from conception, is an effort to push beyond abortion bans and classify the procedure as murder. . . . anti-abortion activists are pushing for a long-held and more absolute goal: laws that grant fetuses the same legal rights and protections as any person."
The New York Times further notes that the concept could "make abortion murder, ruling out all or most of the exceptions for abortion allowed in states that already ban it. . . . They have the potential to criminalize common health care procedures and limit the rights of a pregnant woman in making health care decisions."
The second type of legal challenge - lawsuits on behalf of a fetus which had been aborted, i.e., a legal action on behalf of the estate of a never-born fetus - is already being tested in at least two states, and has been upheld by one judge.
In Arizona, a father was allowed to establish a legal estate for the fetus in order to sue the doctors who had provided abortion pills to his then wife some 4 years earlier.
In Alabama, a man filed a wrongful death lawsuit on behalf of an aborted fetus against all those responsible for its being aborted. Although the Alabama lawsuit was eventually dismissed, it still caused the malpractice insurance premiums of the doctor, who had simply provided the pills for the chemical abortion, to more than double for the future.
In short, even if not ultimately successful, both types of legal actions can have serious consequences, and deter medical professionals and others who might be directly or indirectly involved, argues Banzhaf.
Those lawyers, doctors, and others - including students of law, medicine, and public health - attending the Zoom conference will be challenged to bring legal actions to protect important rights and to advance the public health, says Prof Banzhaf, only one of many doctors, lawyers, and other professionals scheduled to speak on Friday.
