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City of Albuquerque Late Term Abortion Ban Initiative (November 2013)

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A City of Albuquerque Late Term Abortion Ban Initiative ballot question was on the November 19, 2013 ballot measures in New Mexico for voters in the city of Albuquerque in Bernalillo County, which is in New Mexico. It was defeated.

Activists in the group "Project Defending Life" turned in nearly 27,000 signatures, more than twice the 12,091 required, to qualify an initiative, known by supporters as the "Pain Capable Unborn Child Protection Ordinance" initiative, for the ballot. The measure sought to ban abortions after 20 weeks in the city. There was an exception for cases in which the life of the mother is seriously endangered, with the explicit qualification that the danger must come from physical, not psychological and emotional, causes.[1]

If this measure had been approved by voters it would have made Albuquerque the first city to ban abortions after 20 weeks.[2]

Election results

Pain Capable Abortion Ban
ResultVotesPercentage
Defeatedd No48,04255.26%
Yes 38,898 44.74%
These results are from the Albuquerque City election department.

Voter turnout

While Election Day was November 19, over 43,000 Albuquerque electors had already cast their votes for the Late Term Abortion Ban Initiative in the early voting period. This was a record number of voters in the history of early voting in Albuquerque. It was more than twice the number of electors that voted early in the gubernatorial election on October 8. According to City Clerk Amy Bailey, “This election is incomparable to anything we’ve ever seen in the city early voting-wise."[3]

Text of measure

The first two section of the proposed ordinance are below:

SECTION 1. SHORT TITLE

This ordinance may be cited as the “Pain Capable Unborn Child Protection Ordinance.” SECTION 2. FINDINGS AND AUTHORITIES IN SUPPORT

The Citizens of Albuquerque declare the following:

(1) Pain receptors are present throughout the unborn child's entire body and nerves link these receptors to the brain's thalamus and subcorical plate by no later than 20 weeks after fertilization.

(2) By 8 weeks after fertilization, the unborn child reacts to touch. After 20 weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human.

(3) In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response.

(4) For the purposes of surgery on unborn children, fetal anesthesia is routinely administered and is associated with a decrease in stress hormones compared to their level when painful stimuli are applied without such anesthesia. In the United States, surgery of this type is being performed by 20 weeks after fertilization and earlier in specialized units affiliated with children's hospitals.

(5) Recent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.

(6) Substantial evidence indicates that children born missing the bulk of the cerebral cortex, those with hydranencephaly, nevertheless experience pain.

(7) In adult humans and in animals, stimulation or ablation of the cerebral cortex does not alter pain perception, while stimulation or ablation of the thalamus does.

(8) The position, asserted by some commentators, that the unborn child remains in a comalike sleep state that precludes the unborn child experiencing pain is inconsistent with the documented reaction of unborn children to painful stimuli and with the experience of fetal surgeons who had found it necessary to sedate the unborn child with anesthesia to prevent the unborn child from engaging in vigorous movement in reaction to invasive surgery.

(9) Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 20 weeks after fertilization, if not earlier.

(10) The Citizens of Albuquerque assert a compelling governmental interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that the are capable of feeling pain.

(11) The compelling governmental interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain is asserted in addition to the compelling interest in protecting the lives of unborn children from the stage of viability. Neither governmental interest is intended to replace the other.

(12) The Citizens of Albuquerque are empowered by Chapter Three of New Mexico Statutes Annotated and Article Three of the Charter of the City of Albuquerque to affirmatively act to secure health and safety within its geographical borders.[4][5]

The entirety of the full text of the city ordinance is available on the following page:

City of Albuquerque Late Term Abortion Ban Initiative, Ordinance Text

Support

ABQForBanlogo.jpg

Supporters

  • Project Defending Life
  • Voices for Family Values
  • Catholic Coalition of New Mexico
  • Operation Rescue
  • Tara Shaver, an organizer of the petition campaign[6]
  • ABQ Voters For Late Term Abortion Ban[7]
  • Mayor Richard Berry[8]

Arguments in favor

Proponenets argued that after 20 weeks fetuses can feel pain and thus it is inhumane to intentionally kill them with abortion procedures. They also argued that it is safer for a pregnant woman to carry a baby to term than to have an abortion after 18 weeks.[1][2]

Tara Shaver, a spokesperson of Project Defending Life, said, “The people of Albuquerque have let their voices be heard with this initiative. All across the nation individuals are waking up to the fact that late term abortion is a barbaric act that has no place in a civilized society. It is now time for all of Albuquerque to have their say about late term abortions that are putting women’s lives at risk. Women and their children have the most to gain by this historic effort initiated at the city level.”[2]

Troy Newman, President of Operation Rescue, said: “Late-term abortion is a barbaric and dangerous practice that has no place in a civilized society. There are better, more compassionate alternatives for women in the late stages of pregnancy than inflicting upon them and their babies the brutality of abortion.”[9]

Opposition

Opponents

  • American Civil Liberties Union of New Mexico (ACLU)
  • Southwest Women's Law Center
  • ProgressNow New Mexico
  • New Mexico Religious Coalition for Reproductive Choice[10]
  • Respect ABQ Women[11]

Arguments against

Alexandra Freedman Smith, staff attorney for the ACLU of New Mexico, said, "The extremely personal decision (of) whether to have a safe, legal abortion belongs between a woman and her doctor. This organized effort is all about ignoring the personal circumstances of women and putting the government in the exam room where it doesn’t belong.”[1]

The American Civil Liberties Union of New Mexico also denounced the proposal and said that it would undoubtedly be overturned in court even if it were approved by voters.[1]

ProgressNow New Mexico executive director Pat Davis wrote, "The extremists pushing this bill admit that Albuquerque is the testing ground for their new effort to take away a woman's right to her own body – even if she’s been the victim of rape or incest. If they are successful here they'll push these bans in cities across the country."[6]

Campaign finance

Total campaign cash Campaign Finance Ballotpedia.png
as of November 15, 2013
Category:Ballot measure endorsements Support: $183,336.71
Circle thumbs down.png Opposition: $712,459.18

As of November 20, campaign finance reports showed the campaign in opposition to the abortion ban measure with a war chest of a little over $700,000, while the initiative supporters had collected $176,911.71, only about a quarter of the money contributed to the opposition. See below for details about the finance reports on each side of the issue and the key supporters of each campaign.

Support

The following information was obtained from the City of Albuquerque campaign finance records and was current as of November 15, 2013.

PAC info:

PAC Amount raised Amount spent
ABQ Deserves Better[12] $45,050.00 $31,956.37
Albuquerque for a Late Term Abortion Ban[13] $31,087.00 $27,158.60
K of C Pain Capable Ordinance Support[14] $7,583.71 $3,913.71
Protect ABQ Women and Children[15] $99,616.00 $89,906.46
Total $183,336.71 $152,938.14

Below are the top donors to the campaign supporting the Abortion Ban Initiative.

Donor Amount
Albert Brown, New Mexico Optician $45,500
Carlsbad Caverns Trading Company $20,000
Sarah Wilson $15,100
Marcella Melendez $5,000
Debbie Serna, Albuquerque resident $5,000
Dennis Vigil, Albuquerque resident $5,000
Arcilia Litchfield, Albuquerque resident $5,000
Russell Peck, Albuquerque resident $5,130

Opposition

The following information was obtained from the City of Albuquerque campaign finance records and was current as of November 20, 2013.

PAC info:

PAC Amount raised Amount spent
Respect ABQ Women[16] $712,459.18 $474,390.28
Total $712,459.18 $474,390.28

Below are the top donors to the opposition campaign and to the group Respect ABQ Women:

Donor Amount
American Civil Liberties Union of New Mexico $245,000
Planned Parenthood Action of the Rocky Mountains $278,715
Planned Parenthood Action Fund of Los Angeles, CA $20,000
Planned Parenthood Action votes Colorado $17,610
Planned Parenthood Action of Illinois $15,000
Planned Parenthood Advocacy Project, Los Angeles County, CA $9,330
Cecelia Boone of Dallas Woman Foundation $10,000
Naral Pro-Choice America $10,000
Southwest Women's Law Center, Venice Beach, CA $5,500
Young Women United, Albuquerque, NM $5,000

Television Ads

Support

The organization Susan B. Anthony List, a national pro-life organization, paid to have the following three television ads broadcast in Albuquerque in support of the Late Term Abortion Ban Measure.[17]


Abortion Ban Support tv ad 1

Abortion Ban Support tv ad 2

Abortion Ban Support tv ad 3

Opposition

The group Respect ABQ Women along with other opponents paid for the broadcasting of the following two ads asking voters to reject the Late Term Abortion Ban on November 19.


Abortion Ban Opposition tv ad 1

Abortion Ban Opposition tv ad 2

Polls

The Albuquerque Journal released the results of a poll measuring support and opposition of the "Pain Capable Unborn Child Protection Ordinance" initiative on September 9, 2013. The poll was of 402 residents of Albuquerque who said that they planned to vote on this initiative and were active voters in 2009 and 2011. The poll had a margin of error of about 4.9%.

The poll asked "Do you support or oppose the Albuquerque ballot measure to ban most abortions after 20 weeks of pregnancy."

Albuquerque Abortion Ban Measure - Support v. Opposition
Poll Support OppositionIt dependsWould not sayMargin of ErrorSample Size
Albuquerque Journal poll
September 9, 2013
54%39%2%5%+/-4.9402
Note: The polls above may not reflect all polls that have been conducted in this race. Those displayed are a random sampling chosen by Ballotpedia staff. If you would like to nominate another poll for inclusion in the table, send an email to editor@ballotpedia.org

The Albuquerque Journal broke down the poll to show the responses of major party members and ethnic groups:

Responses by Party Affiliation
Options: Republicans Democrats
Support 80% 35%
Oppose 16% 56%
Responses by Ethnicity
Options: Anglo Voters Hispanic Voters
Support 53% 57%
Oppose 41% 33%

Reactions

Troy Newman, President of Operation Rescue, said: “This poll shows what we have been saying all along, that the proposed Pain Capable Unborn Child Protection Ordinance has wide support in Albuquerque. Putting this ordinance to a vote is the right thing to do."[9]

Big controversies

Constitutional muster

Some opponents to the abortion ban measure argued that it would have conflicted with the Roe v. Wade Supreme Court ruling, which decriminalized abortion. Proponents said that the abortion ban would have been constitutional because the previous decision of Roe v. Wade was narrowed by the court case Planned Parenthood v. Casey to allow states to regulate and even ban late-term abortions.[18][19]

When the resolution to put the abortion ban initiative on the ballot was approved by the city counsel, City Councilor Trudy Jones sent a letter to the Attorney General Gary King to see if the ordinance was compatible with state law. Attorneys of the city of Albuquerque had said that they believed the city charter required the ordinance be presented to the voters even if it may have contradicted state law. Troy Newman, President of Operation Rescue, said, “This ordinance has a high probability of success, given the popular support in the community, and we are confident it will pass constitutional muster if it is ever challenged."[1] [20]

SWO Clinic

A protester outside of the SWO clinic

Albuquerque was the battle field for the petitioners of this late-term abortion ban initiative and its opponents largely because of the Southwestern Women's Options clinic, which remains one of the few clinics in the nation that offers late term abortions during or after the sixth month of pregnancy. Activists that were part of the group Operation Rescue, which is located in Kansas, were taking a front lines role in the Albuquerque struggle over late term abortions, helping with the petition, giving legal advice and holding protests in the city. Pro-choice activists opposing the measure have complained of the out-of-state involvement in the city initiative, calling them "outsiders" and saying that they should not be trying to affect city policies. Joan Lamunyon Sanford, director of the New Mexico Religious Coalition for Reproductive Choice, said, “The fact that they call themselves missionaries is really offensive. We don’t need outsiders bringing in this kind of disruption.”[21]

Troy Newman of Operation Rescue, however, returned blow for blow, saying, "Both of the clinic’s primary abortionists, Shelley Sella and Susan Robinson, fly in to Albuquerque from California to do the abortions then fly out again. Neither hold local hospital privileges. In fact, the clinic is owned by Texas abortionist Curtis Boyd. They are the ones coming in to Albuquerque to cause issues. The Pain Capable Unborn Child Protection Ordinance is truly a grass-roots effort put forward by people who live in Albuquerque, like the Shavers. It is supported by pro-life groups around the country because women from every state are currently traveling to Albuquerque to have these dangerous abortions at the latest stages of pregnancy. The poll confirms that it is the out-of state abortionists who are out-of-step with the people of Albuquerque.”[20][21]

Jones resolution

Trudy Jones, city councilor

Abortion ban supporters were displeased by an effort of city councilor Trudy Jones to introduce a resolution, Resolution 13-250, that would have authorized an independent counsel to analyze the legality of the ordinance and seek an injunction against a public vote. The resolution would have, instead, allowed the measure to fall under a declaratory ruling from a judge concerning its compatibility with the state and federal constitution. If the judge were to rule in favor of the ordinance, voters would then get a chance to cast ballots on the issue. But if the judge ruled the ordinance unconstitutional, it would have never be seen at an election. Council President Dan Lewis released a statement in which he denied the request for the introduction of Resolution 13-250 saying:[22]

R-13-250 short circuits the democratic process. Whether you agree with them or not, the organizers of this initiative have played by the rules and have followed all of the City’s laws and requirements, and under those laws they are entitled to an election. Actions by the Council that would deny this election, that would disenfranchise voters, and that would limit voter initiative rights under the City Charter deserve more time and consideration by the Council, not less.

Opponents of the Pain Capable Unborn Child Protection Ordinance have speculated at great length about the constitutionality of the Ordinance. Unfortunately, that is just what those thoughts are – speculation. Any attorney or judge that is faced with a before the fact request for a declaratory ruling would only be speculating on what the courts, especially the Court of Appeals and Supreme Court, would ultimately decide. The question of the constitutionality of the ordinance should be decided by the courts only if the law is passed by the voters and if the law is challenged.[23][5]

Despite this statement by the council president, supporters of the initiative still expected Jones to introduce the resolution seeking an injunction and declaratory relief. Proponents of the abortion ban, eager to make the resolution for declaratory relief seem foolish, pointed out that nearly identical laws have already been approved and unforced in 11 states and that there was similar legislation being considered on the federal level.

Senior Policy Advisor for Operation Rescue, said, “This is nothing more than a blatant attack on the legal process and is meant to thwart the will of the people. Nearly 27,000 Albuquerque residents, whose signatures were gathered in just 20 days, have followed the legal process for a Direct Legislation Initiative as outlined in the City Charter. We are shocked that they would now try to take away the right of the people to a fair election that is now required by law.”[22]

A copy of the Resolution 13-250 is available here.

Response rally

Pro-life supporters and initiative proponents had a rally to protest the possible introduction of resolution 13-250.

Tara Shaver, Chair of ABQ Voters For Late Term Abortion Ban said, "As soon as we were alerted to Jones’ resolution attempt to deny the citizens of ABQ an election on the “20 week late term abortion ban” we enlisted our attorneys at Life Legal Defense Foundation to caution the city council on moving forward. The citizens of ABQ followed the rules set forth in the city charter, which guarantees an election, any attempt to circumvent the law of the city merits legal action on our part. By her actions Trudy Jones is the one who is disregarding the law."

The rally and press conference was held outside the County Government Center at One Civic Plaza on October 9, 2013.[24]

Attorney General opinion

Attorney General Gary King

The New Mexico Attorney General, Gary King, gave his opinion on the Late Term Abortion Ban Initiative in a letter to City Council member Trudy Jones in response to her inquiry. Jones had asked Gary King for a formal opinion, but King responded that he could give a formal opinion only in response to a request form state officials, but that he would give his personal opinion because he believed the "voters have the right to know and decide whether they want to bear the protracted expense of litigation over a measure that is unconstitutional and unenforceable." His opinion was that the ordinance sought by the initiative measure was not compatible with the state or federal constitution and that it would ultimately be overturned in court after expensive litigation. King also said, "Additionally, recent federal court actions have struck down ordinances identical or similar to the proposed measure in Albuquerque."[25]

Path to the ballot

See also: Laws governing local ballot measures in New Mexico

In late July, the group Project Defending Life collected nearly 27,000 signatures in only 20 days to qualify their "Pain Capable Child Protection Ordinance" for the ballot. The city clerk's office verified that the required 12,091 signatures were valid and from registered voters in the city. According to city law, when an initiative petition is certified, the city council must consider the ordinance and, if the council members do not pass it without alteration, the city must put the measure before voters within 90 days. On September 16, the city council voted 5 to 4 to put the "Pain Capable Unborn Child Protection Ordinance" on the November 19 ballot.[26]

See also

External links

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Basic information

Support

Opposition

Additional reading

References

  1. 1.0 1.1 1.2 1.3 1.4 ABQ Journal, "Abortion bill is likely to be on city’s ballot," July 26, 2013
  2. 2.0 2.1 2.2 LifeNews.com, Measure to Ban Abortions in Late-Term Abortion Capital Gets Enough Signatures," July 24, 2013
  3. RH Reality Check, "Historic Early Voter Turn-Out for Albuquerque 20-Week Abortion Ban Ordinance," November 14, 2013
  4. Text of the petition
  5. 5.0 5.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
  6. 6.0 6.1 Eyewitness News, "Petition close to adding anti-abortion measure to ABQ ballot," July 18, 2013
  7. ABQ Voters For Late Term Abortion Ban facebook page
  8. Koat7ABC, "Mayoral candidates weigh in on abortion ballot initiative," August 7, 2013
  9. 9.0 9.1 Lifenews.com, "Majority of Albuquerque Voters Back Ballot Measure to Ban Late-term Abortions," September 9, 2013
  10. New Mexico Religious Coalition for Reproductive Choice website
  11. Respect ABQ Women website
  12. ABQ Deserves Better campaign finance report
  13. Albuquerque for a Late Term Abortion Ban campaign finance report
  14. K of C Pain Capable Ordinance Support campaign finance report
  15. Protect ABQ Women and Children finance report
  16. Respect ABQ Women finance report
  17. RH Reality Check, "Historic Early Voter Turn-Out for Albuquerque 20-Week Abortion Ban Ordinance," November 14, 2013
  18. Roe V. Wade case summary
  19. Planned Parenthood v. Casey court decision information
  20. 20.0 20.1 Prolifewitness.org, "More ABQ Voters Support Abortion Ban"
  21. 21.0 21.1 The New York Times, "Albuquerque Becomes Latest Focal Point in Abortion Wars," September 4, 2013
  22. 22.0 22.1 Operation Rescue, "RED ALERT: Action Needed to Halt Effort to Derail Vote on Albuquerque Late-term Abortion Ban," October 8, 2013
  23. Statement Issued by Albuquerque City Council President Dan Lewis, October 7, 2013
  24. ABQ Voters For Late Term Abortion Ban press release, October 9, 2013
  25. Las Cruces Sun-News, "New Mexico Attorney General says proposed abortion ban is unenforceable," October 19, 2013
  26. Atlas Project, "The ABCs of ABQ’s 20-Week Abortion Ban," October 2, 2013