American Civil Liberties Union

The Women's Rights Project, Reproductive Freedom Project, and ACLU of New Mexico joined in an amicus effort before the New Mexico Supreme Court to help challenge the arrest and prosecution of Cynthia Martinez, a mother who continued her pregnancy to term in spite of her struggle with drug addiction.

This amicus brief argues that the application of a child abuse statue to prenatal conduct profoundly burdens women by subjecting them to disproportionate and discriminatory policing, in that such application effectively criminalizes the drug use and drug addiction of pregnant women, but not others. It also argues that the New Mexico Equal Rights Amendment (ERA) guarantees of gender equality go beyond overt gender classifications to apply searching judicial scrutiny to discrimination that burdens, restricts, or punishes women for their ability to bear children. Furthermore, when the burden consists of criminal prosecution and the deprivation of the fundamental rights of liberty, the keenest judicial vigilance is required.

Planned Parenthood of New Mexico and the New Mexico Women's Justice Project joined the ACLU in filing its brief.

On May 11, 2007, the New Mexico Supreme Court quashed the writ of certiorari. In short, the Court decided they never should have taken the appeal from the State in the first place. The lower appellate court's finding, that New Mexico's child abuse statutes do not apply to the relationship between a mother and her fetus and that to interpret the statutes that way would violate Ms. Martinez's due process rights, is final and stands as good law. In finding for Ms. Martinez, the New Mexico judiciary joins with 20 other state appellate courts that have concluded that child endangerment laws do not allow states to prosecute pregnant women for behavior the state believes could harm fetuses.