Abstract
Anti-abortion activists are using different strategies in different states. Some focus on restricting zoning for abortion clinics. Others address the licensure of abortion providers. Some purport to create a cause of action for private individuals to sue neighbors and others in their municipality who get an abortion. Still, others seek to enforce the federal Comstock Act, alleging that it prohibits the mailing of abortifacients and preempts state abortion law to the contrary.
This Article evaluates the likely success of each of these strategies in two states in which they are currently being tried: Nebraska and New Mexico. Part I will provide an overview of relevant municipal law, emphasizing the power of different kinds of municipalities to regulate issues addressed in the abortion ordinances this article will consider. Part II will examine several different types of ordinances some municipalities have adopted in the wake of the Dobbs decision and their likely legality in the settings in which they were passed. Part III will draw several conclusions about the legal ability of municipalities to adopt ordinances that alter the availability of abortion within their jurisdictions or the prosecution of its provision in comparison with relevant state law.