For Jessica Brown, whose husband Michael is an inmate at Northeast New Mexico Correctional Facility in Clayton, sending letters to her spouse is one of the primary ways she communicates with him. But starting Feb. 1, Jessica will have to send letters to her husband to a private corporation in Florida called Securus Technologies. There, Jessica’s letters will be opened and photocopied. Her husband, Michael, will be able to receive only the photocopied version.
New Mexico Department of Corrections notified inmates and their families of the change late last month.
The Federal Drug Administration ruled on Thursday that it would permanently lift restrictions around abortion patients receiving medication abortion by mail. This means, for instance, that abortion patients who live in places such as rural New Mexico can receive mifepristone, the first of the two-drug abortion regime, by mail. The FDA has maintained a restriction on in-person pickup of mifepristone at a clinic since the agency approved the drug for abortion 21 years ago. Reproductive experts have said that was a political move as, after 21 years, there were clear indications that taking medication abortion up to 10 weeks of gestation is safe. Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico, said by text message that the FDA’s decision is “good news” for patients but some restrictions for clinics still apply.
The Texas law, SB 8, that bans abortion after six weeks in that state, is called “the Texas Heartbeat Act.”
But there is no heart within the pregnant person’s womb at six weeks after conception, according to health experts. At roughly six weeks, a current of electrical activity begins in a cellular cluster. Abortion rights proponents argue that that is just one way that anti-abortion rhetoric supplies misinformation and disinformation. Anti-abortion groups also coopt the language of social justice movements, including the reproductive rights movement, reproductive rights advocates have said. Adriann Barboa, policy director for the nonprofit organization Forward Together, said some who oppose coronavirus vaccinations and mask mandates use phrases such as, “my body, my choice,” when arguing against getting vaccinated or wearing masks to protect against COVID-19.
The U.S. Supreme Court heard oral arguments Monday morning for two cases related to the Texas law that bans abortion at six-weeks of gestation. The arguments presented procedural questions about whether or not a group of providers and advocates called Whole Women’s Health Coalition and the U.S. Department of Justice can bring separate lawsuits because the only state actors involved in SB 8 are state court judges and clerks. Texas lawmakers wrote the law in such a way as to abrogate responsibility for the law, leaving Whole Women’s Health Coalition in the position of needing to sue each state trial court judge and an injunction against every county clerk in the state of Texas. The DOJ is suing the state of Texas. If the court rules in either case in favor of either Whole Women’s Health Coalition or the DOJ, the case would go back to the lower court and allow the plaintiff’s legal challenge to the law proceed.
On Monday, the U.S. Supreme Court ruled in favor of qualified immunity in two separate, but similar, federal cases that involved police officers who, the plaintiffs alleged, used excessive force in the two separate incidents.
But, those rulings will not impact the New Mexico Civil Rights Act, which prohibits the use of qualified immunity as a legal defense in state civil cases, said Leon Howard, legal director with the American Civil Liberties Union of New Mexico. Howard said that states are allowed to provide more protection for the individuals who live in the state than the federal constitution does but not less.
“When the Supreme Court rules on a constitutional issue, they’re interpreting the federal constitution and the body of law that makes up interpretation of the federal constitution,” Howard said. The Supreme Court does not get involved in a case unless there is a federal question, Howard said.
A plaintiff in New Mexico can still sue a government entity for constitutional violation in federal court, Howard said. But in federal court, the government entity can still rely on the qualified immunity defense. Qualified immunity is a judicial rule established decades ago that has become an obstacle almost impossible to surpass in court.
Related: What ‘qualified immunity’ means for New Mexico
The government entity in a case would have to argue that the New Mexico Civil Rights Act, passed in the 2021 Legislature and signed shortly thereafter by the governor, was violating its federal constitutional rights, Howard said.
Dobbs v. Jackson Women’s Health, the U.S. Supreme Court case on Mississippi’s 15-week gestational ban, is not the only reproductive healthcare case that the high court could hear this year, according to Supreme Court watchers. The date for Dobbs v. Jackson Women’s Health has not been set yet but Ellie Rushforth, an attorney for the American Civil Liberties Union of New Mexico, said the court usually doesn’t deliver its opinion on abortion cases until June or July. “Then begins an election,” Rushforth said, indicating the 2022 mid-term races between Republicans and Democrats will begin in earnest. Rushforth said the court will not likely hear oral arguments on Dobbs v. Jackson Women’s Health until December at the earliest. Dobbs v. Jackson Women’s Health has the potential to upend Roe v. Wade.
Abortion care providers in New Mexico expect an increase in patients if a court allows Texas’ six-week gestational ban to take effect in September. A group of Texas abortion fund and clinic providers filed suit in a Texas state court last week to stop the state’s new law from going into effect. But because the law is new territory, providers, abortion fund organizations and legal experts in New Mexico are watching to see if the court blocks the law with an injunction and, if not, how large the ripple effect could be felt in this neighboring state. Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico called the Texas law not just unconstitutional but “sinister.”
“The point of this [Texas] law is to instill fear and place a bounty on the head of anyone who is providing abortion care or helping people get the care they need. It’s inviting and encouraging complete strangers to stake out and continue to harass abortion providers and networks of care,” she said.
Hundreds of available shelter beds in New Mexico are empty while families, including a Honduran mother and her child, seek asylum in the U.S. are forced to wait across the border with Mexico in Ciudad Juárez. Advocates have said there is a humanitarian crisis happening along the border. The Donald Trump administration’s border policies, which many describe as racist, inflammatory and discriminatory, were implemented early in the COVID-19 pandemic to stop migrants along the southern border from crossing. The administration said the policies were in place to stop the spread of the disease, though the federal government implemented very few restrictions on international flights for international travelers and none for U.S. travelers.
While President Joe Biden has reversed most of Trump’s COVID-19 border policies, he has not ended Title 42, which has kept the border closed for people like Ana Judyth Ayala Delcid, 24, and her two-year-old daughter, who journeyed through perilous conditions from Honduras through Mexico this past spring to seek asylum in the U.S.
Ayala Delcid told NM Political Report, through an interpreter provided by El Calvario Methodist Church shelter in Las Cruces, that she left her home with her young daughter and began the journey across Mexico, despite her fears of how hard it might be, because in two separate incidents, gang members killed her aunt and invaded her house at night. She said she is afraid to return.
An incarcerated woman in New Mexico filed suit last month against the state Department of Corrections after officials allegedly discontinued her prescription for methadone. The American Civil Liberties Union of New Mexico filed an emergency injunctive relief on Monday in federal court for a plaintiff known as “S.B.” who suffers from opioid use disorder. She relies on doctor-prescribed methadone as part of her active recovery from heroin addiction, according to the complaint. The NMDC bans the use of methadone and other Federal Drug Administration approved medications for addiction treatment (MAT) for most prisoners, according to the complaint. Eric Harrison, public information officer for NMDC, said the department could not comment on active litigation and said that S.B. is not in NMDC custody.
The U.S. Health and Human Services Department and the American Civil Liberties Union agreed to put a lawsuit on hold late last week that could have longer term implications for the abortion medication mifepristone. On Friday the HHS, which oversees the Food and Drug Administration, filed in Hawaii district court a request to stay a lawsuit that has been ongoing around mifepristone since 2017. The ACLU, which also filed for the stay, is suing the U.S. Health and Human Services on behalf of a Hawaii clinician. The ACLU and the Hawaii clinician are suing because the FDA’s in-person pickup requirement for mifepristone requires patients in Hawaii to have to fly between islands to receive a single pill. Once a patient has picked up mifepristone at a clinic, they can go home to take it. The FDA requires abortion patients to travel to a clinic to pick up mifepristone because the abortion medication is under the FDA’s Risk Evaluation and Mitigation Strategies (REMS), drug safety program intended for medications with serious safety concerns.
Mifepristone has been in the FDA’s REMS program since the FDA approved the prescription drug in 2000.