Supreme Court of New Mexico Strikes Down State

On May 11, the Supreme Court of the State of New Mexico turned back the state’s attempt to expand the criminal child abuse laws to apply to pregnant women and fetuses. In 2003, Ms. Cynthia Martinez was charged with felony child abuse “for permitting a child under 18 years of age to be placed in a situation that may endanger the child’s life or health. . .” In bringing this prosecution, the state argued that a pregnant woman who cannot overcome a drug addiction before she gives birth should be sent to jail as a felony child abuser.

Today the Supreme Court summarily affirmed the Court of Appeals decision, which overturned Ms. Martinez’s conviction. New Mexico joins more than 20 other states that have ruled on this issue and that have refused to judicially expand state criminal child abuse and related laws to reach the issues of pregnancy and addiction.

The Drug Policy Alliance (“DPA”) and the National Advocates for Pregnant Women (“NAPW”) filed a friend-of-the-court brief on behalf of the New Mexico Public Health Association, the New Mexico Nurses Association, and nearly three dozen other leading medical and public health organizations, physicians, and scientific researchers. During oral argument, the Justices referenced the amicus brief filed by these organizations and expressed grave concerns about the deterrent effect such prosecutions would have on women seeking prenatal care.

Tiloma Jayasinghe, NAPW staff attorney, explained, “Making child abuse laws applicable to pregnant women and fetuses would, by definition, make every woman who is low-income, uninsured, has health problems, and/or is battered who becomes pregnant a felony child abuser. In oral argument, the state’s attorney conceded that the law could potentially be applied to pregnant women who smoked.”

Reena Szczepanski, Director of Drug Policy Alliance New Mexico, said, “I hope that this case serves as a reminder that pregnant women who are struggling with drug use should be offered prenatal care and drug treatment, not prosecution. There are better ways to protect our children in New Mexico, and ensure that future generations will be safe and healthy.”

A complete list of the Amici appears below:

• New Mexico Section of the American College of Obstetricians and Gynecologists
• New Mexico Public Health Association
• New Mexico Nurses Association
• American College of Physicians, New Mexico
• National Association of Social Workers
• National Association of Social Workers, New Mexico
• National Coalition for Child Protection Reform
• Child Welfare Organizing Project
• American Academy of Addiction Psychiatry
• The Association for Medical Education and Research in Substance Abuse
• American Public Health Association
• Citizens for Midwifery
• Doctors of the World-USA
• Family Justice
• The Hygeia Foundation, Inc.
• National Perinatal Association
• National Asian Pacific American Women’s Forum
• National Council on Alcoholism and Drug Dependence
• National Latina Institute for Reproductive Health
• National Women’s Health Network
• Our Bodies Ourselves
• Pegasus Legal Services for Children
• Physicians and Lawyers for National Drug Policy
• Center for Gender and Justice
• Yolanda Briscoe, M.D.
• Bette Fleishman
• Norton Kalishman, M.D.
• Eve Espey, M.D.
• Gavriela DeBoer
• Dona Upson, M.D., M.A.
• Elizabeth M. Armstrong, Ph.D.
• Wendy Chavkin, M.D., M.P.H.
• Ellen Wright Clayton, M.D., J.D.
• Nancy Day, M.P.H.
• Leslie Hartley Gise, M.D.
• Stephanie S. Covington, Ph.D., L.C.S.W.

Ms. Martinez was represented by Jane Wishner of the outhwest Women’s Law Center and Joseph Goldberg of the law firm of Freedman Boyd Daniels Hollander Goldberg & Ives, P.A.