Criminal abortion consists of administering to any pregnant woman any medicine, drug or other substance, or using any method or means whereby an untimely termination of her pregnancy is produced, or attempted to be produced, with the intent to destroy the fetus, and the termination is not a justified medical termination.

Whoever commits criminal abortion is guilty of a fourth degree felony. Whoever commits criminal abortion which results in the death of the woman is guilty of a second degree felony.

History: 1953 Comp., § 40A-5-3, enacted by Laws 1969, ch. 67, § 3.

Repeals and reenactments. — Laws 1969, ch. 67, § 3, repealed former 40A-5-3, 1953 Comp., relating to permissive abortion, and enacted a new section.

Severability. — Laws 1969, ch. 67, § 4, provides for the severability of the act if any part or application thereof is held invalid.

This section does not define murder, homicide or feticide, 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". — 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". — 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 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. — 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. — 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. — 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. — 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. — 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. — 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. — Under current law, Section 30-5-2 NMSA 1978 is entirely enforceable, and this section and Section 30-5-1 NMSA 1978 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.

Law reviews. — For article, "The Proposed New Mexico Criminal Code," see 1 Nat. Resources J. 122 (1961).

For article, "New Mexico's 1969 Criminal Abortion Law," see 10 Nat. Resources J. 591 (1970).

For article, "The Impact of the Equal Rights Amendment on the New Mexico Criminal Code," see 3 N.M.L. Rev. 106 (1973).

For article, "Rape Law: The Need for Reform," see 5 N.M.L. Rev. 279 (1975).

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. — 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.