The U.S. Supreme Court ruled Tuesday to reinstate restrictions on the a medication abortion pill that allowed patients to receive it through the mail during the pandemic. The justices ruled 7 to 2 on the decision in favor of the U.S. Federal Drug Administration. The FDA has maintained a rule that a patient must travel to a clinic to pick up the abortion pill mifepristone for the past 20 years when the drug first came onto the market. Reproductive advocates and experts have said that is politically motivated. The patient can take the pill in a place of their own choosing.
See our entire countdown of top stories, to date, here. The COVID-19 pandemic impacted the lives of almost every New Mexican, including those locked up in jail or prison.
In April, just a month after New Mexico saw its initial cases of COVID-19, Gov. Michelle Lujan Grisham’s office faced a legal challenge over how the state was handling COVID-19 in detention centers across the state. A petition filed by the American Civil Liberties Union of New Mexico, the New Mexico Law Offices of the Public Defender and the New Mexico Criminal Defense Lawyers Association asked the state Supreme Court to intervene and compel the state to broaden its scope of how to lower inmate populations. The stance of the governor’s office was, and still is, that an executive order allowing a specific class of inmates to be released 30 days early was enough.
The coalition that filed the petition argued that the governor’s office and the New Mexico Corrections Department were subjecting inmates to cruel and unusual punishment by sticking with the 30-day early release order instead of pushing for expanded and expedited parole or house arrest for inmates. During oral arguments in the Supreme Court case, both the governor’s lawyer and some justices expressed concern over where inmates would go after being released.
As the number of COVID-19 cases and related deaths in New Mexico continue to increase throughout the state and the state is halfway through a two week stay-at-home order, criminal justice advocates continue to push Gov. Michelle Lujan Grisham to do more to reduce prison populations.
There have been two attempts to get the courts involved, but the latest legal challenge, a class-action lawsuit, was dismissed last month. The judge in that case ruled that the court did not have jurisdiction to weigh-in because the inmate plaintiffs did not show that they had exhausted other remedies like an appeal through the New Mexico Department of Corrections.
Now, the plaintiffs—two advocacy groups and nearly a dozen inmates—are taking the issue to the Supreme Court for a second time, albeit with a different ask of the justices.
In the early months of the COVID-19 pandemic, the New Mexico Law Offices of the Public Defender, the American Civil Liberties Union and the New Mexico Criminal Defense Lawyers Association asked the state Supreme Court to intervene and compel Lujan Grisham and her corrections department to broaden their scope of how to limit prison populations in light of COVID-19. Those two groups ultimately failed to convince the New Mexico Supreme Court that inmates were subjected to cruel and unusual punishment, a violation of the U.S. Constitution, and to compel Lujan Grisham and the Department of Corrections to do more than release inmates 30 days early.
For her part, Lujan Grisham signed an executive order that essentially expanded an already existing provision and allowed some inmates out 30 days before their scheduled release date. The qualifications for early release under Lujan Grisham’s executive order are narrow and prompted groups like the public defender’s office, the New Mexico Criminal Defense Lawyers Association and the ACLU to call for things like expedited parole for certain inmates and allowing some inmates to finish their sentence at home.
‘Getting really tricky to figure out where people can go’
Faegre Drinker, an international law firm, joined with Albuquerque-based attorney Ryan Villa to represent the plaintiffs in the class action suit that may be heard by the state’s high court.
The question before the court will not be whether or not the inmates are subjected to cruel and unusual punishment or even if the state has done enough to limit prison populations. Instead, justices would decide whether a district court judge can hear a case before all other options have been exhausted.
In a statement, Faegre Drinker attorney Chris Casolaro said time is running out for inmates facing the risk of COVID-19 as infection rates in prisons are rising, nearly every day.
“Coronavirus cases continue to surge in New Mexico, putting incarcerated people in far greater danger than they already were,” Casolaro said.
A District Court in Maryland has 40 days to lift, modify or continue the order it previously made to allow the abortion medication mifepristone to be available through telehealth during the pandemic. The U.S. Supreme Court asked the lower court on Thursday to reconsider a case the American College of Obstetrics and Gynecologists (ACOG) brought against the Food and Drug Administration (FDA) over the summer. ACOG wants the FDA to allow mifepristone to be available for abortion care through telehealth during the pandemic. Although the FDA approved mifepristone 20 years ago for abortion care, the FDA continues to regulate it as if it were a dangerous drug. The FDA argued in court that people should have to continue to pick up mifepristone at a health care provider during the pandemic.
A private detention center in southern New Mexico sought to increase the numbers of detainees within its facility after the state declared a public health emergency for the COVID-19 pandemic. Management and Training Company (MTC), which operates the Otero County Processing Center (OCPC), sent a letter to Otero County Manager Pam Heltner dated March 31. The letter stated that due to an anticipated “significant decrease,” in migrant detainees, the company would terminate its agreement—but offered a solution. NM Political Report received the letter from the American Civil Liberties Union of New Mexico, which obtained it through a Freedom of Information Act request. The letter stated:
“MTC would be happy to explore with you the possibility of partnering with other state or federal agencies to co-locate detainees or inmates at the OCPC in order to increase the overall population at the facility and make MTC’s continued operation of the facility financially viable.”
MTC houses migrants held by U.S. Immigration and Customs Enforcement (ICE).
New Mexico women who need contraception are likely safe for now despite the U.S. Supreme Court’s 7-2 decision which will allow private companies to opt out of providing insurance coverage for it, according to the American Civil Liberties Union of New Mexico. A recent law passed in New Mexico enables women in the state to continue contraceptive coverage despite the court’s decision which now enables private companies to deny contraception coverage by citing moral or religious objections. But, Ellie Rushforth, reproductive rights attorney for the ACLU-NM warned, the future is uncertain. “It doesn’t mean we’re fully insulated from future issues related to this,” she said. The Supreme Court overturned a lower court’s decision on Wednesday in the case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.
The American Civil Liberties Union of New Mexico is once again calling on state officials, namely the governor and her Department of Corrections secretary, to expand their efforts to lower prison populations in light of COVID-19. The ACLU-NM sent a letter Tuesday to Gov. Michelle Lujan Grisham and her legal counsel, asking the state to revisit the issue of how to lower inmate populations as a way to increase social distancing and slow the spread of COVID-19 within prison walls.
The letter praised Lujan Grisham for the “bold measures” she has taken to protect New Mexicans in general, but went on to invoke a quote from Nelson Mandela while encouraging the governor to consider inmates’ health.
“We ask you to apply the same strong, decisive, and forward-thinking approach to protect the lives of incarcerated New Mexicans as you have for the rest of the state,” the letter read. “After all, ‘a nation should not be judged by how it treats its highest citizens, but it’s lowest ones’– a notion that could not be more glaring than during this pandemic.”
The letter asks the governor to not just release inmates about 30 days before they are scheduled to leave, but to also consider early parole for some inmates and to consider releasing inmates who are serving prison sentences as a result of technical parole or probation violations.
But ACLU-NM Staff Attorney Lalita Moskowitz, who is also a cosigner of the letter, told NM Political Report that a key ask from the organization is transparency.
State health officials and the governor’s office have consistently released information about how many people in the state have tested positive for the disease among a long list of other things. But Moskowitz said the ACLU would like to see specific breakdowns regarding how many tests were performed within prisons and how many staff members tested positive.
“[Inmates’] families and the communities that are surrounding these facilities really deserve to know what’s going on there and deserve to be kept aware and not have to be wondering if there’s an outbreak we don’t know about, or if they’re testing anyone after a positive case,” Moskowitz said.
In April, Lujan Grisham signed an executive order to release inmates, who meet certain qualifications, 30 days before their scheduled release date. By May, the ACLU-NM and the New Mexico Law Offices of the Public Defender asked the state supreme court to intervene and compel the governor’s office to broaden the scope of who can be released and when.
The U.S. Supreme Court is expected to make major reproductive health care decisions early next week. Monday and Tuesday will be the final two days this term that the justices will issue opinions, according to the Supreme Court’s blog. Historically, the court has handed down decisions on abortion on the last day of the session, Nancy Northup, executive director of the Center for Reproductive Rights said last month. But in this case, the court has two reproductive health care decisions to rule upon in the final days of the session. The two cases are June Medical Services LLC v. Russo and Trump v. Pennsylvania.
This year’s special session wrapped up on Monday and the state now has a balanced budget. But as with many special sessions, legislators were tasked with considering other law changes, including those aimed at holding law enforcement officers more accountable. Those bills included issues like mandatory body cameras for police officers, new processes for reporting police use of force and creating a civil rights commission. It was a mixed bag on what types of reform proposals passed and there were mixed feelings from civil rights advocates.
One of the bills that made it to Gov. Michelle Lujan Grisham’s desk is SB 8, sponsored by Sen. Joseph Cervantes, D-Las Cruces. The bill would require all police in the state, regardless of jurisdiction, to wear body cameras.
With delays in reproductive health care already taking place, officials with American Civil Liberties Union of New Mexico said it could get worse as the global pandemic of COVID-19 continues. Ellie Rushforth, a reproductive rights attorney for ACLU-NM, sent letters to elected officials Monday urging them to ensure reproductive health care will remain accessible during the public health emergency. The letters, to Governor Michelle Lujan Grisham, congressional officials and the mayors of Albuquerque, Santa Fe and Las Cruces, ask that they consider abortion care, all forms of birth control; STI screening, testing, and treatment; vaginal health and treatment; prenatal, delivery, and postnatal care as essential reproductive services that need to remain accessible. The letters outline immediate steps, including that reproductive health care clinics and outpatient abortion providers be considered, “essential business.”
Lujan Grisham announced a stay-at-home order Monday in an attempt to slow down the spread of COVID-19, a type of coronavirus. As of Monday, March 23, the state has 83 test positive cases, with 18 new ones.