Attorneys Respond to NM Attorney General's Request for Stay

" BRIEF IN OPPOSITION TO

EMERGENCY PETITION FOR WRIT OF MANDAMUS AND REQUEST FOR STAY:

The Attorney General’s petition is shot through with procedural obstacles that the Attorney General does not acknowledge or begin to address. Start with the most obvious problem: A writ of mandamus may issue “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” New Mexico Stat. § 44-2-4 (2019) (emphasis added); see also Wilbur v. U.S. ex rel. Kadrie, 281 U.S. 206, 218 (1930) (“Mandamus is employed to compel the perfor- mance, when refused, of a ministerial duty, this being its chief use.”); Kiddy v. Board of County Commissioners of Eddy County, 1953-NMSC-023, ¶ 7, 57 N.M. 145, 149, 255 P.2d 678, 680–81 (N.M. 1953) (“Mandamus traditionally lies to direct performance of nondiscretionary tasks”).1 Yet one will search the petition in vain for any request to “compel” the cities or counties to “perform” an act. The Attorney General wants this Court to issue “a writ of mandamus striking down these ordinances and prohibiting the local governments from engaging in unconstitutional action.” Pet. at 1. But a writ of mandamus cannot be used to formally revoke a statute or ordinance,2 and the Attorney General never explains the “unconstitutional action” that he is asking this Court to restrain. Writs of mandamus exist to compel the performance of an act or to prohibit unconstitutional official action,3 not to render opinions on the constitutionality of local ordinances that the Attorney General dislikes. 1. The full text of the mandamus statute reads as follows: “It may be issued to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station; but though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion.” New Mexico Stat. § 44-2-4 (2019). 2. See Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933 (2018); Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 Stan. L. Rev. 1209, 1221 (2010) (“Judicial review is not the review of statutes at large; judicial review is constitutional review of governmental action. Government actors violate the Constitution.”). 3. See State ex rel. Riddle v. Oliver, 2021-NMSC-018, ¶ 23, 487 P.3d 815, 825 (N.M. 2021) (“Mandamus may be used either ‘to compel the performance of The Attorney General’s request for a “stay” is equally bizarre. A party seeking an extraordinary writ may seek “a stay of some action by the respondent pending disposition of the petition.” N.M. R. App. P. 12-504(D) (emphasis added). But the Attorney General never identifies the “action” by the cities or counties that he wants this Court to “stay.” The petition repeatedly asks this Court to issue a “stay”—but it never says what it wants the Court to stay. See Pet. at 8 (“[T]his Court should issue a stay”); id. at 23 (“The State further asks this Court to issue a stay while this Petition is pending.”). Courts cannot “stay” a statutes or ordinances; they can stay only “some action” taken by the cities or counties. See N.M. R. App. P. 12-504(D); see also Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495 (2021) (“[F]ederal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.” (citing California v. Texas, 141 S. Ct. 2104, 2115–16 (2021)); Okpalobi v. Foster, 244 F.3d 405, 426 n.34 (5th Cir. 2001) (en banc) (“An injunction enjoins a defendant, not a statute.”).4 So what is the “action by the respondent[s]” that the Attorney General wants this Court to “stay”? Roosevelt County doesn’t even enforce section 2 of its ordinance, so a “stay” directed at Roosevelt County does nothing to stop private citizens from suing noncompliant abortion providers. See Roosevelt County Ordinance 2023-001 § 2(D) (“Notwithstanding any other law, the requirements of this section shall be enforced an affirmative act . . . where the duty to perform the act is clearly enjoined by law,’ or it may be used ‘in a prohibitory manner to prohibit unconstitutional official action.’ State ex rel. Sugg v. Oliver, 2020-NMSC-002, ¶ 7, 456 P.3d 1065 (internal quotation marks and citations omitted).”); State ex rel. Bird v. Apodaca, 1977-NMSC-110, ¶ 4, 91 N.M. 279, 281–82, 573 P.2d 213, 215–16 (N.M. 1977) (allowing mandamus to issue in response to a request for “negative relief, i.e., ‘to cease, desist and refrain’”). 4. But see Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2498 (2021) (Sotomayor, J., dissenting) (falsely asserting that the federal judiciary can “enjoin” a “law”); id. at 2499 (Sotomayor, J., dissenting) (claiming that the judiciary can “enjoin” a legislative “Act”). exclusively through the private civil actions described in section 3. No direct or indirect enforcement of this section may be taken or threatened by Roosevelt County or any of its employees or agents against any person or entity, by any means whatsoever . . .”). The Roosevelt County ordinance will continue to exist even if this Court issues the requested “stay” or writ of mandamus,5 and any private citizen who sues under that ordinance is not a party to this proceeding and cannot be bound by any “stay” or writ that might be directed at the respondents. See, e.g., Hansberry v. Lee, 311 U.S. 32, 40 (1940) (“[O]ne is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.”). So just how would this Court enforce the “stay” or writ of mandamus sought by the Attorney General when private citizens—who cannot be bound by anything that happens in this proceeding—invoke the Roosevelt County ordinance to sue non-compliant abortion providers, who are likewise strangers to this litigation? See, e.g., Hope Clinic v. Ryan, 249 F.3d 603, 605 (7th Cir. 2001) (en banc) (“[A]n injunction prohibiting the world from filing private suits would be a flagrant violation of . . . the due process clause (for putative private plaintiffs are entitled to be notified and heard before courts adjudicate their entitlements).”). Is this Court supposed to hold the “ordinance” in contempt if a private litigant sues under it after the Court issues its “stay”? And if that were not enough, the Attorney General never alleges that the cities and counties are currently enforcing the ordinances against anyone, as there are no abortion providers located in any of these jurisdictions. None of the respondents have denied or withheld licenses, and Lea County has not enforced or threatened to en- force its $300 fines against anyone—because (so far) everyone in those municipalities 5. See Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 64 (1993) (“[J]udicial opinions do not result in any change in the codification of enacted law.”). is complying with the law. So at the risk of sounding repetitive: Just what exactly is the “action by the respondent[s]” that this Court is supposed to “stay”? The Attorney General is living in a parallel universe where the judiciary acts as a Council of Revision rather than a court—and is somehow empowered to act directly on legislation by formally suspending or revoking it in an act akin to an executive veto. So are the attorneys representing Roosevelt County and Lea County, who went so far as concede the propriety of a stay without making any attempt to explain how this Court can “stay” an ordinance (as opposed to an “action by the respondent”). A “stay” of an ordinance is an oxymoron, and so is a “writ of mandamus striking down these ordinances.” Pet. at 1; see alsoNetChoice, L.L.C. v. Paxton, 49 F.4th 439 (5th Cir. 2022) (“‘[C]ourts have no authority to strike down statutory text’” (quoting Borden v. United States, 141 S. Ct. 1817, 1835–36 (2021) (Thomas, J., concurring in the judgment)). Each of them is channeling Justice Sotomayor’s delusional claim in Whole Woman’s Health that courts can somehow “enjoin” laws themselves, rather than the individuals or entities charged with enforcing those laws. Compare 141 S. Ct. at 2498–99 (Sotomayor, J., dissenting); with id. at 2495 (majority opinion) (“[F]ederal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.” (citing California v. Texas, 141 S. Ct. 2104, 2115–16 (2021)); Okpalobi, 244 F.3d at 426 n.34 (“An injunction enjoins a defendant, not a statute.”). I. The Court Must Determine The Meaning 18 U.S.C. §§ 1461– 1462 Before Considering The Attorney General’s Attacks On The Ordinances Matters get worse for the Attorney General when we turn to the merits of his claims. None of the ordinances ban abortion. They merely require compliance with the abortion-related provisions of 18 U.S.C. §§ 1461–1462, which (on their face) prohibit the shipment and receipt of abortion pills and abortion-related paraphernalia.6 The Attorney General never even mentions this anywhere in his petition. Yet the Biden Administration’s Office of Legal Counsel recently adopted a narrowing construction of 18 U.S.C. §§ 1461–1462, opining that the statutes apply only when the sender of the drugs or devices intends for the recipient to use them in violation of state or federal law. See Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions, 46 Op. O.L.C. ___ (Dec. 23, 2022) (attached as Exhibit 1). If the OLC opinion is correct, then the ordinances do nothing whatsoever to restrict abortion access because abortion remains legal throughout New Mexico, and it remains legal in each of the four respondent cities and counties. No abortion provider in New Mexico could possibly violate the ordinances (or 18 U.S.C. §§ 1461–1462) unless it somehow acted with the intent of violating some other state’s abortion laws—an exceedingly far-fetched scenario. The ordinances have teeth only if the OLC opinion is wrong and 18 U.S.C. §§ 1461–1462 mean what they say. See id. at 5 (admitting that the OLC interpreta- tion of 18 U.S.C. §§ 1461–1462 is “narrower than a literal reading might suggest.”). 6. The Attorney General falsely states that the Hobbs and Clovis ordinances “declare it to be unlawful to use the mail, an express service, a common carrier, or an interactive computer service for the delivery of any item designed or advertised to produce an abortion.” Pet. at 3. Each of the four ordinances makes clear that this conduct is unlawful only to the extent that it also violates 18 U.S.C. §§ 1461–1462. See Hobbs Municipal Code § 5.52.070(A) (“It shall be unlawful for any person . . . to violate 18 U.S.C. § 1461 by . . .” (emphasis added)); Clovis City Code § 9.90.060(A) (same); Roosevelt County Ordinance No. 2023-01 § 2(A) (same); id. at § 9(A) (same); Lea County Ordinance No. 99 § 6.1 (“It is prohibited for any person to violate 18 U.S.C. § 1461 by . . .” (emphasis added)); Hobbs Municipal Code § 5.52.070(B) (“It shall be unlawful for any person . . . to violate 18 U.S.C. § 1462 by . . .” (emphasis added)); Clovis City Code § 9.90.060(B) (same); Roosevelt County Ordinance No. 2023-01 § 2(B) (same); id. at § 9(B) (same); Lea County Ordinance No. 99 § 6.2 (“It is prohibited for any person to violate 18 U.S.C. § 1462 by . . .” (emphasis added)). If there is no violation of 18 U.S.C. §§ 1461–1462, then there can be no violation of any of the four ordinances. If (and only if) this Court rejects the OLC opinion and interprets 18 U.S.C. §§ 1461– 1462 in accordance with the enacted text, then the ordinances (and federal law) would make it nearly impossible for abortion providers to operate because they would be unable to ship or receive abortion-related materials. Yet that scenario it is entirely contingent upon this Court’s rejecting the interpretation of 18 U.S.C. §§ 1461–1462 that appears in the OLC opinion. If this Court interprets 18 U.S.C. §§ 1461–1462 to prohibit all shipments and receipts of abortion pills and abortion-related paraphernalia, then it cannot simultaneously hold that the Constitution of New Mexico confers a right to act in violation of a federal criminal statute. See U.S. Const. article VI, § 2. Federal statutes are “the supreme Law of the Land,” and “the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Id. That means any supposed right under the state constitution must yield to the requirements of a “supreme” federal statute. The Attorney General never bothers to explain how this Court can recognize or enforce a state constitutional right to engage in behavior that a federal statute explicitly outlaws and criminalizes. We are quite certain that the Attorney General heartily agrees with the Biden Administration’s narrowing construction of 18 U.S.C. §§ 1461–1462 and would want this Court to adopt it. But if the Attorney General (and this Court) agree with the OLC opinion, then the Attorney General’s constitutional claims become moot and his claim of “immediate harm”7 evaporates, as the ordinances would be doing nothing to limit abortion access in New Mexico. If, by contrast, the Attorney General wants this Court to reject the OLC opinion and interpret 18 U.S.C. §§ 1461–1462 in accordance with the statutory text, then he cannot simultaneously insist that New Mex- icans have a supposed state-law “right” to act in violation of a supreme federal statute. 7. Pet. at 8. A ruling from this Court that interprets 18 U.S.C. §§ 1461–1462 (and the ordinances) to restrict all shipment and receipt of abortion-related paraphernalia would effectively ban abortion as a matter of federal law, and that would preempt any statelaw right that purports to allow New Mexicans to flout these federal statutes. So the Attorney General loses coming or going—and he cannot continue to play cute by ignoring 18 U.S.C. §§ 1461–1462 and remaining agnostic on what those statutes (and the ordinances that incorporate them) actually mean. The scope of the ordinances depends entirely on the scope of 18 U.S.C. §§ 1461–1462, and the Attorney General (and this Court) must determine what those federal statutes mean before considering the Attorney General’s constitutional objections to the ordinances. II. The Attorney General’s Petition Does Not Satisfy This Court’s Test For Original Mandamus Jurisdiction The Court may not assert original jurisdiction over mandamus petitions unless three requirements are met. A petitioner must present: a purely legal issue concerning the non-discretionary duty of a government official that (1) implicates fundamental constitutional questions of great public importance, (2) can be answered on the basis of virtually undisputed facts, and (3) calls for an expeditious resolution that cannot be obtained through other channels such as a direct appeal. State v. Oliver, 2020-NMSC-002, ¶ 7, 456 P.3d 1065, 1069 (N.M. 2019). The At- torney General’s petition comes nowhere close to satisfying this test. A. The Attorney General’s Petition Does Not Present An Issue Concerning “The Non-Discretionary Duty Of A Government Official” The most glaring problem is that Attorney General has failed to present an “issue concerning the non-discretionary duty of a government official.” Oliver, 456 P.3d at 1069. No “government official” has been identified the Attorney General’s petition, and no “non-discretionary duty” of a supposed government official has been described. The only “issue” that the Attorney General presents concerns the constitutionality of the ordinances in the abstract, which is not a basis on which this Court may exercise original mandamus jurisdiction. Nor is the Attorney General asking for relief that would “compel the performance of an act,” as required by New Mexico Stat. § 44-2-4 (2019). He wants “a writ of mandamus striking down these ordinances,”8 which is not something that a writ of mandamus can do. See notes 1–2 and accompanying text, supra. The Attorney General does not allege that any of the respondent cities or counties are taking action to enforce their ordinances by denying or withholding licenses or imposing fines, because no abortion providers are operating (or attempting to operate) in any of these four jurisdictions. So there are no “acts” for this Court to compel or restrain with a writ of mandamus. Finally, the Attorney General does not even allege that 18 U.S.C. §§ 1461–1462 (and the ordinances that incorporate these statutes) restrict abortion activity in New Mexico, given the OLC opinion that construes 18 U.S.C. §§ 1461–1462 to permit the shipment and receipt of abortion paraphernalia in states where abortion remains legal. See Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions, 46 Op. O.L.C. ___ (Dec. 23, 2022) (attached as Exhibit 1). Nothing in the Attorney General’s petition could conceivably implicate a “nondiscretionary duty of a government official” unless the Attorney General is willing to reject the OLC opinion and insist that 18 U.S.C. §§ 1461–1462 (and the respondents’ ordinances) categorically prohibit the shipment and receipt of abortion paraphernalia. The Attorney General makes no such claim in his brief. 8. Pet. at 1. See also id. at 23 (requesting “a writ of mandamus declaring the ordinances null and void and their provisions unenforceable in New Mexico’s courts.”). B. The Attorney General’s Petition Does Not Implicate “Fundamental Constitutional Questions Of Great Public Importance” The Attorney General has also failed to show that his petition “implicates fundamental constitutional questions of great public importance.” Oliver, 456 P.3d at 1069. There is nothing in the New Mexico Constitution that creates a right for people to ship or receive abortion pills or abortion-related paraphernalia, and the Attorney General cites no opinion or ruling of this Court that recognizes such as right. And a writ of mandamus cannot be used to recognize or enforce rights and duties that were not previously established in law. See State ex rel. Riddle v. Oliver, 2021-NMSC-018, ¶ 34, 487 P.3d 815, 827 (“The purpose of the writ of mandamus is to enforce performance of a public duty after it has been otherwise established, and not to establish legal rights and duties.” (citation and internal quotation marks omitted)). But there is an even larger problem for the Attorney General: It is impossible for the Attorney General’s petition to implicate “fundamental constitutional questions of great public importance” because the ordinances either: (1) Do nothing to restrict abortion access (if the OLC interpretation of 18 U.S.C. §§ 1461–1462 is correct); or (2) Do nothing but repeat the requirements of a supreme federal statute, which would preempt any supposed state-law right to ship or receive abortion pills. Either way, the ordinances cannot implicate “fundamental constitutional questions of great public importance” because they simply parrot the requirements of a federal statute that must prevail over any countervailing provision in the state constitution. Whether those federal statutes are construed broadly or narrowly, they must preempt any state law right that the Attorney General wants this Court to recognize or invent. So the constitutional questions raised in the Attorney General’s petition are neither “fundamental,” nor are they “of great public importance.”

C. The Attorney General’s Petition Cannot Be “Answered On The Basis Of Virtually Undisputed Facts” Recall that a writ of mandamus may issue only “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” New Mexico Stat. § 44-2-4 (2019) (emphasis added). Yet there is nothing in the Attorney General’s petition that describes any “act” of the respondents that he wants this Court to compel or restrain. Nor does the Attorney General’s petition explain how any such “act” would be related to a “duty resulting from an office, trust of station.” Id. The cities of Clovis and Hobbs maintain that they are not engaged in any “act” that could implicate the New Mexico Constitution, because there are no abortion providers operating in their cities and no abortion providers seeking to enter those jurisdictions. So the cities have no opportunity to enforce the licensing requirements of their ordinances—and there is no prospect that they will have any opportunity to engage in an “act” of enforcement unless and until an abortion clinic tries to open in Clovis and Hobbs. The mere existence of an ordinance is not an “act” that can be compelled or enjoined by a court. See notes 2–5 and accompanying text, supra. The Attorney General apparently thinks that the cities are performing (or about to perform) an unconstitutional act, because he is asking for mandamus that would “prohibit” the cities “from engaging in unconstitutional official action”9—although he never bothers to tell the Court or the respondents what those supposedly unconstitutional actions are. But the cities deny that they are engaged in any acts of enforce- ment or any other act that could implicate the New Mexico Constitution because there are no abortion clinics in Clovis or Hobbs and no one who intends to open a clinic in either of those cities. If the Attorney General is contending otherwise, then his petition cannot be resolved “on the basis of virtually undisputed facts.” 9. Pet. at 4. D. The Issues Presented In The Attorney General’s Petition Do Not “Call For An Expeditious Resolution” There is nothing in Attorney General’s petition that calls for an “expeditious resolution.” Oliver, 456 P.3d at 1069. None of the four ordinances are doing anything to restrict abortion access because no abortion providers are operating in any of those four jurisdictions—and no providers have sought to offer abortions in any of the four respondent cities or counties. The Attorney General cannot identify anyone—real or hypothetical—who is being hindered in obtaining an abortion on account of the ordinances, or who is suffering a violation of their supposed constitutional rights. And if there were any person who was being adversely affected by these ordinances, that person could sue on their own behalf. There is no need for immediate relief when there is no evidence or reason to believe that the ordinances are affecting abortion access on the ground. The Attorney General’s claim that the four ordinances “effectively ban abortions in those cities and counties” is false. See note 6 and accompanying text. The ordinances do nothing more than require compliance with the federal abortion restrictions codified in 18 U.S.C. §§ 1461–1462. If the OLC interpretation of 18 U.S.C. §§ 1461– 1462 is correct, then the ordinances do not restrict abortion access in the slightest. See Section I, supra. And if the OLC opinion is wrong and 18 U.S.C. §§ 1461–1462 mean what they say, then abortion is effectively banned throughout the United States as a matter of federal law. See id. The ordinances themselves add nothing beyond what federal law independently requires—and if this Court chooses to reject the OLC opinion and interpret 18 U.S.C. §§ 1461–1462 to ban all shipment and receipt of abortion pills, then it is federal law, and not the redundant ordinances, that is eliminating abortion access not only in those four jurisdictions but throughout the entire nation. So there is no need for an “expeditious resolution,” unless the Attorney General wants this Court to adopt a textual construction of 18 U.S.C. §§ 1461–1462 and hold that federal law effectively bans abortion nationwide.10 E. The Attorney General Does Not Even Attempt To Explain How His Requested Resolution Cannot Be Obtained “Through Other Channels” The final jurisdictional problem is that the Attorney General has not even tried to explain how his requested resolution “cannot be obtained through other channels such as a direct appeal.” Oliver, 456 P.3d at 1069. The most obvious alternate “channel” by which relief could be sought is by suing the respondents in state district court and seeking an immediate preliminary injunction. The Attorney General never explains why that path is inadequate or why an original-jurisdiction proceeding in this Court is needed. See Pet. at 7–8. That alone requires this Court to decline original jurisdiction and deny the requested relief. III. The Ordinances Cannot Violate The New Mexico Constitution Because They Simply Require Abortion Clinics To Comply With 18 U.S.C. §§ 1461–1462, Which Is The “Supreme Law Of The Land” Under Article VI Of The Constitution The Attorney General claims that the ordinances violate rights supposedly secured by the New Mexico Constitution. See Pet. at 9–18. But the problem for the Attorney General is that these ordinances do nothing more than require compliance with existing federal law; they do not ban abortion or impose regulatory burdens that go beyond what is already required by 18 U.S.C. §§ 1461–1462. Each of the four ordinances makes clear that a person cannot violate the ordinance unless it is violating its federal-law obligations under 18 U.S.C. §§ 1461–1462. See Hobbs Municipal Code § 5.52.070(A) (“It shall be unlawful for any person . . . to violate 18 U.S.C. § 1461 by 10. The Attorney General’s claim that the respondent cities and counties “will continue to pass laws that attempt to regulate and prohibit abortion in the wake of Dobbs” is false and unsupported by any evidence. See Pet. at 7. . . .” (emphasis added)); Clovis City Code § 9.90.060(A) (same); Roosevelt County Ordinance No. 2023-01 § 2(A) (same); id. at § 9(A) (same); Lea County Ordinance No. 99 § 6.1 (“It is prohibited for any person to violate 18 U.S.C. § 1461 by . . .” (emphasis added)); Hobbs Municipal Code § 5.52.070(B) (“It shall be unlawful for any person . . . to violate 18 U.S.C. § 1462 by . . .” (emphasis added)); Clovis City Code § 9.90.060(B) (same); Roosevelt County Ordinance No. 2023-01 § 2(B) (same); id. at § 9(B) (same); Lea County Ordinance No. 99 § 6.2 (“It is prohibited for any person to violate 18 U.S.C. § 1462 by . . .” (emphasis added)). The titles of the ordinances and their statements of purpose make this clear as well.11 So the meaning of the ordinances depends entirely on the meaning of 18 U.S.C. §§ 1461–1462, a fact that the Attorney General ignores throughout his petition. But the Attorney General is pinioned on the horns of a dilemma. He can either: (a) Endorse the OLC interpretation of 18 U.S.C. §§ 1461–1462, which would render the ordinances toothless because abortion is legal in New Mexico (and legal in each of 11. See City of Hobbs Ordinance No. 1147 (“AN ORDINANCE AMENDING TITLE 5 OF THE HOBBS MUNICIPAL CODE REQUIRING ABORTION PROVIDERS IN HOBBS TO COMPLY WITH FEDERAL LAW”); Hobbs Municipal Code § 5.52.010 (“The purpose of this section is to preserve the integrity of the local medical profession by ensuring compliance with applicable law.”); id. at § 5.52.070 (“Compliance with Federal Abortion Laws Required.”); Clovis Ordinance No. 2184-2022 (“AN ORDINANCE REQUIRING ABORTION PROVIDERS IN THE CITY OF CI.OVIS TO COMPLY WITH FEDERAL LAW”); Clovis City Code § 9.90.060 (“Compliance with Federal Abortion Laws Required”); Roosevelt County Ordinance No. 2023-01 (“ORDINANCE REQUIRING ABORTION PROVIDERS IN ROOSEVELT COUNTY TO COMPLY WITH FEDERAL LAW”); id. at § 2 (“Compliance with Federal Abortion Laws Required.”); id. at § 9 (“Compliance with Federal Abortion Laws Required.”); Lea County Ordinance No. 99 (“AN ORDINANCE REQUIRING COMPLIANCE WITH FEDERAL ABORTION LAWS”); id. at § 1 (“This Ordinance will be known as the Federal Abortion Law Compliance Ordinance.”); id. at § 2 (“The purpose and intent of this ordinance is to ensure compliance with federal abortion laws, including 18 U.S.C. §§ 1461–1462, within Lea County.”). the respondent cities and counties);12 or (b) Reject the OLC opinion and endorse a textualist interpretation of 18 U.S.C. §§ 1461–1462, which will impose a federal nationwide ban on the shipment and receipt of abortion-related materials. Either way, mandamus relief is impermissible either: (a) the ordinances do nothing to limit abortion access; or (b) 18 U.S.C. §§ 1461–1462 imposes a nationwide federal ban on the shipment and receipt of abortion paraphernalia, which preempts any supposed right under the state constitution to act in violation of these federal statutes. The Attorney General is bound by oath to support and defend article VI of the Constitution, which marks federal statutes as “the supreme Law of the Land” and requires any conflicting state constitutional provision to give way. He cannot continue to ignore the fact that 18 U.S.C. §§ 1461–1462 exist, or that the local ordinances do nothing more than require compliance with these “supreme” federal statutes. Mandamus should be denied because a court cannot recognize or enforce a state-law “right” to act in violation of supreme federal law. IV. Mandamus May Be Used Only To Enforce Legal Rights That Have Already Been Established There is yet another fatal and insurmountable problem with the Attorney General’s petition: A writ of mandamus may be used only to enforce legal rights that have already been established, not to enforce or establish rights or duties that have not previously been recognized. See State ex rel. Riddle v. Oliver, 2021-NMSC-018, ¶ 34, 487 P.3d 815, 827 (“‘The purpose of the writ of mandamus is to enforce performance of a public duty after it has been otherwise established, and not to establish legal rights and duties.’” (citation and internal quotation marks omitted)). There is no decision of this Court holding that New Mexicans have a state constitutional right to ship or receive abortion pills or abortion-related paraphernalia in violation of a federal crimi- nal statute. The ordinances do not ban abortion; they merely require compliance with 12. See Section I, supra. 18 U.S.C. §§ 1461–1462.13 And there is no decision of this Court that even remotely suggests that the New Mexico Constitution protects the conduct outlawed by 18 U.S.C. §§ 1461–1462. The Attorney General even admits that this Court has not previously recognized a right to abortion under the state constitution. See Pet. at 11 (“This Court has not directly addressed whether the Equal Rights Amendment secures a right to reproductive freedom and choice that includes the right to abortion.”); id. at 16 (“In N.M. Right to Choose, the Court refrained from deciding whether Article II, Section 4 protects a right to choose to terminate a pregnancy”). He is instead asking this Court to extend existing precedent to recognize a state constitutional right that has not previously been established. See id. at 10–18. That is impermissible in a mandamus proceeding. V. Mandamus Cannot Issue Because The Attorney General Has Failed To Show That His Entitlement To Relief Is “Clear” And “Indisputable” This Court has held many times that mandamus may issue only to enforce rights and duties that are “clear” and “indisputable.” See State ex rel. Riddle v. Oliver, 2021NMSC-018, ¶ 23, 487 P.3d 815, 825 (N.M. 2021) (“[M]andamus . . . will lie only to force a clear legal right against one having a clear legal duty to perform an act” (emphasis added) (citation and internal quotation marks omitted)); State ex rel. Coll v. Johnson, 1999-NMSC-036, 128 N.M. 154, 158, 990 P.2d 1277, 1281 (N.M. 1999) (“[A] writ of mandamus is available only to one who has a clear legal right to the performance sought; it is available only in limited circumstances to achieve limited purposes.” (emphasis added) (citation and internal quotation marks omitted)); Mobile 13. The Attorney General claims that the ordinances “operate as de facto bans on abortion,” Pet. at 10, but he cannot take that stance without rejecting the OLC opinion and conceding that 18 U.S.C. §§ 1461–1462 bans the shipment and receipt of abortion pills nationwide as a matter of federal criminal law. America, Inc. v. Sandoval County Comm’n, 1974-NMSC-007, ¶ 5, 85 N.M. 794, 795, 518 P.2d 774, 775 (N.M. 1974) (“[M]andamus lies to compel the performance of a statutory duty only where it is clear and undisputable.”).14 The Attorney General does not even acknowledge this requirement or assert that the supposed rights and legal duties are “clear” and “indisputable.” The arguments in the Attorney General’s petition fall far short of the “clear” and “indisputable” showing needed for mandamus relief. His argument based on the Equal Rights Amendment cannot get off the ground because the ordinances do not ban abortion; they merely require compliance with 18 U.S.C. §§ 1461–1462. Men and women are equally prohibited from shipping or receiving abortion pills or abortion-related paraphernalia in violation of 18 U.S.C. §§ 1461–1462, and men and women are equally prohibited from violating 18 U.S.C. §§ 1461–1462 in an attempt to kill their unborn children. That is true both as a matter of federal law and as a matter of local law. None of these laws classify on account of sex or impose different rules on men and women. The Attorney General’s “due process” and “privacy” arguments are even more tenuous, as is his reliance on the “inherent rights” clause of Article II, section 4. Statelaw privacy rights do not include a right to violate federal criminal statutes, and there is no such thing as a “natural, inherent, and inalienable right” to engage in conduct that federal law has outlawed and criminalized. Any attempt to interpret the New Mexico Constitution in that manner would be preempted by 18 U.S.C. §§ 1461– 14. See also Wilbur v. U.S. ex rel. Kadrie, 281 U.S. 206, 218–19 (1930) (“Where the duty in a particular situation is so plainly prescribed as to be free from doubt and equivalent to a positive command, it is regarded as being so far ministerial that its performance may be compelled by mandamus, unless there be provision or implication to the contrary. But where the duty is not thus plainly prescribed, but depends upon a statute or statutes the construction or application of which is not free from doubt, it is regarded as involving the character of judgment or discretion which cannot be controlled by mandamus.” (footnote omitted)). 1462. The Attorney General also attempts to derive these supposed state-law rights from vague and amorphous language in previous court opinions, such as the courtdescribed rights of “personal bodily privacy” and “personal dignity.” But see generally Steven Pinker, The Stupidity of Dignity, The New Republic (May 27, 2008), available at http://bit.ly/3XHKF7Z (explaining how “dignity” is “a squishy, subjective notion, hardly up to the heavyweight moral demands assigned to it.”). That is far from a “clear” and “indisputable” showing of a state constitutional right. Finally, there is nothing in the Medical Practice Act that purports to prevent local jurisdictions from licensing or regulating abortion providers, and the Attorney General cannot point to any language in the Medical Practice Act that could possibly preempt these ordinances. Lea County’s ordinance doesn’t even require licensing of abortion providers; it simply imposes a $300 fine on every “person” who violates the abortion-related provisions of 18 U.S.C. §§ 1461–1462. How the Medical Practice Act could preempt an ordinance of that sort remains a mystery, and the Attorney General ignores this problem by falsely asserting that all four ordinances “require a license” to perform abortions. See Pet. at 20. The Attorney General is equally wrong to assert that the “purpose” of the ordinances is to “prevent physicians from being able to perform [abortions].” Pet. at 20. The purpose of the ordinances is to require compliance with federal law,15 and if this Court construes 18 U.S.C. §§ 1461–1462 in accordance with the OLC opinion then the ordinances do nothing to restrict physicians or anyone else from performing abor- 15. See Hobbs Municipal Code § 5.52.010 (“The purpose of this section is to preserve the integrity of the local medical profession by ensuring compliance with applicable law.”); Lea County Ordinance No. 99 § 2 (“The purpose and intent of this ordinance is to ensure compliance with federal abortion laws, including 18 U.S.C. §§ 1461–1462, within Lea County.”). tions in New Mexico. See Section I, supra. There is also no possibility that these ordinances will create a “patchwork of regulation”16 because they do nothing more than require compliance with rules that federal law already imposes on a nationwide basis. See 18 U.S.C. §§ 1461–1462. However this Court chooses to interpret 18 U.S.C. §§ 1461–1462, the residents of the respondent cities and counties will be under the same legal obligations as everyone else in the United States. Finally, the Attorney General fails to explain how a writ of mandamus can restrain private litigants from suing non-compliant abortion providers under section 2 of the Roosevelt County ordinance. Roosevelt County does nothing to enforce this part of the ordinance; indeed, it is explicitly prohibited from doing so, as the Attorney General acknowledges. See Pet. at 21 (complaining that “the ordinance expressly prohibits the County and its officers, employees, and agents from participating in the filing of, or seeking to influence a decision to bring, any action under the ordinance.”). But a writ of mandamus would be directed only at Roosevelt County, not the litigants who sue under the ordinance or the judges who hear those cases. The private right of action in the Roosevelt County ordinance also falls comfortably within the County’s exercise of independent power. See New Mexicans for Free Enterprise v. City of Santa Fe, 2006-NMCA-007, ¶ 28, 138 N.M. 785, 797, 126 P.3d 1149, 1161 (N.M. 2005) (“Where a municipality has been given powers by the legislature to deal with the challenges it faces, those may be sufficiently independent municipal powers to allow regulation of a civil relationship as long as (1) the regulation of the civil relationship is reasonably ‘incident to’ a public purpose that is clearly within the delegated power, and (2) the law in question does not implicate serious concerns about non-uniformity in the law.”). The private right of action is “incident 16. Pet. at 20. to” the county’s delegated powers to “provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of [the] county or its inhabitants.” N.M. Stat. 4-37-1 (“Included in this grant of powers to the counties are those powers necessary and proper to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of any county or its inhabitants.”). The Attorney General does not even acknowledge the existence of section 4-37-1 or explain why it is incapable of supporting the Roosevelt County ordinance. And the private right of action does not implicate any “concerns about non-uniformity in the law” because it does not extend beyond the requirements that 18 U.S.C. §§ 1461–1462 already impose nationwide as a matter of federal law. See note 16 and accompanying text, supra. VI. Mandamus Cannot Issue Because The Attorney General Has Not Even Attempted To Explain How “Ordinary” Proceedings Would Be “Inadequate” The last and most serious problem with the Attorney General’s request is that mandamus cannot issue unless the petitioner shows that relief is unavailable in the “ordinary” course of law. See N.M. Stat. § 44-2-5 (“The writ shall not issue in any case where there is a plain, speedy and adequate remedy in the ordinary course of law.”); State ex rel. Riddle v. Oliver, 2021-NMSC-018, ¶ 23, 487 P.3d 815, 825 (N.M. 2021) (“[M]andamus . . . will lie only . . . where there is no other plain, speedy and adequate remedy in the ordinary course of law.” (citations and internal quotation marks omitted)); State ex rel. Coll v. Johnson, 1999-NMSC-036, 128 N.M. 154, 158, 990 P.2d 1277, 1281 (N.M. 1999) (“Mandamus is a drastic remedy to be invoked only in extraordinary circumstances. The writ shall not issue in any case where there is a plain, speedy and adequate remedy in the ordinary course of law.” (citations and internal quotations marks omitted)); State ex rel. Bird v. Apodaca, 1977-NMSC-110, ¶ 6, 91 N.M. 279, 282, 573 P.2d 213, 216 (N.M. 1977) (“Mandamus will lie where ordinary proceedings would be inadequate.”). The Attorney General does not even acknowledge or address this requirement, and he does not explain why he cannot obtain a “plain, speedy and adequate remedy” by suing the respondent cities and counties in state district court and seeking a preliminary injunction. Nor does he explain why the supposed “victims” of these ordinances are incapable of vindicating their own rights by suing the respondents in state district court. It seems rather obvious that proceedings in “the ordinary course of law” are available not only to the Attorney General but also to any private citizen who is injured or adversely affected by the ordinances—and that the state district courts remain open to hear these claims and issue preliminary injunctions if warranted. Mandamus should be denied for that reason alone.17 * * * The ordinances do nothing more than incorporate the requirements of federal law. The Attorney General’s determination to ignore this fact does not allow this Court to do so. If this Court chooses to adopt OLC’s interpretation of 18 U.S.C. §§ 1461–1462, then it should deny the petition for mandamus and request for a stay because the ordinances do nothing to limit abortion access in New Mexico. If this Court chooses to reject the OLC opinion and interpret 18 U.S.C. §§ 1461–1462 according to what they say, then abortion is effectively outlawed as a matter of federal law, and a state constitution cannot confer a right to act in violation of a federal crim- inal statute. CONCLUSION The petition for writ of mandamus and request for stay should be denied. 17. For the same reason, the Attorney General cannot show that original jurisdiction is warranted, as explained in Section II.E, supra. "

Further updates to come.