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.
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.
The U.S. Supreme Court’s decision on Fulton v. the City of Philadelphia is not likely to a impact the New Mexico LGBTQ community, legal experts and advocates have said. Fulton v. the City of Philadelphia asked the Supreme Court to decide if Catholic Social Services (CSS) could continue its contract with that city to help find foster families even though the city said it couldn’t because CSS discriminates against same sex couples in its fostering application. The Supreme Court heard the case last fall and when the U.S. Congress was considering Justice Amy Coney Barrett for nomination to the bench, members of the LGBTQ community in New Mexico worried that a more conservative bench could overturn precedent and allow discrimination, which in turn could have a ripple effect in New Mexico. Related: U.S. Supreme Court could roll back LGBTQ equality
But, Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico, said the court’s decision in June was so narrow it would only apply to this particular case wouldn’t likely have an impact in New Mexico. “I disagree with the finding but what the court said is, because the city contract contained a mechanism for offering individual discretion to the agencies, the court held the city could not refuse to extend the contract to Catholic Social Services,” she said.
If the U.S. Supreme Court overturns or guts Roe v. Wade next year when it hears the case involving a Mississippi law that would ban abortion after 15 weeks, New Mexico could face a fight and increased harassment at clinics, according to reproductive rights experts. The U.S. Supreme Court announced earlier this week it will hear Dobbs v. Jackson Women’s Health Organization, regarding the Mississippi law that prohibits abortion after 15 weeks with few exceptions. The state of Mississippi asked the court to decide on whether all pre-viability bans on abortion violate the Constitution. The court’s decision is expected to come down in 2022 before the mid-term general election. New Mexico, which was one of very few states to pass pro-abortion rights legislation this year, will feel the effects of the Supreme Court’s decision regardless of how the court decides the Mississippi case, according to reproductive health advocates.
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.
This week, the Joe Biden administration proposed to reverse a Donald Trump administration gag rule that affects how some family planning clinics provide abortion care information. Title X is a federal grant program that enables clinics to offer family planning services and preventive reproductive health care, primarily to low-income families who are uninsured or underinsured. New Mexico Department of Health family planning clinics, which receive Title X funding, provide contraception methods and related preventive health services including pre-conception health, sexually transmitted disease prevention education, screening, treatment and breast and cervical cancer screening, NMDOH spokesperson Jim Walton told NM Political Report by email. There are DOH family planning clinics in every county except Catron and Harding counties. Bernalillo County has 16 such clinics, Santa Fe County has seven, Doña Ana County has four and Rio Arriba County has three.
There are 20 clinic sites that contract with DOH to provide family planning services, including nine school-based health centers.
With six openly queer legislators participating in the 2021 New Mexico legislative session, many in the LGBTQ community said this past session was important in the advancement of equal rights. But also, legislation that would repeal the state’s ban on abortion, remove qualified immunity as a legal defense and enable individuals whose civil rights have been violated to seek financial remedy through the courts and require employers to provide paid sick leave to employees are major highlights for the LGBTQ community as well as the reproductive justice community because the two intersect. The New Mexico Civil Rights Act, which made the changes on qualified immunity, and the Healthy Workplaces Act, which imposes the paid sick leave requirement, passed both chambers but await Gov. Michelle Lujan Grisham’s signature. Lujan Grisham has already signed the Respect New Mexico Women and Families Act, on abortion, into law after it passed both chambers in February. Related: Governor signs bill repealing abortion ban into law: ‘a woman has the right to make decisions about her own body’
But there were other moments, such as an informal “gay pride night” in the state Senate, when two bills sponsored by openly queer Senators passed in mid-March, that were noted by members of the LGBTQ community.
With the passage of legislation to repeal the state’s outdated abortion ban and the New Mexico Civil Rights Act, many in the reproductive justice community called the 2021 Legislative session “extraordinary.”
All reproductive rights groups NM Political Report spoke with cited the passage of the Respect New Mexico Women and Families Act, or SB 10, as one of the biggest victories and a major piece of legislation to come out of the 2021 session. Legislators fast tracked the bill through committee hearings and it passed both chambers before the session’s end. Gov. Michelle Lujan Grisham signed the bill into law in February. Related: Governor signs bill repealing abortion ban into law: ‘a woman has the right to make decisions about her own body’
The bill repeals the 1969 statute that criminalized abortion and made it a fourth-degree felony for a medical practitioner to perform one. Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico, called the 2021 Legislative session “historic.”
Rushforth said it was in contrast to other states, where in the first few months of 2021, state legislatures have introduced close to 400 pieces of anti-abortion legislation.
The House voted 41 to 26 to agree with Senate changes to the paid sick leave bill on the final morning of the Legislature on Saturday.
HB 20, whose lead sponsor was Rep. Christine Chandler, a Democrat from Los Alamos, would mandate that all private employers provide up to 64 hours of paid sick leave per year for employees. Private sector employees would accrue one hour of paid time off for every 30 hours worked. Gov. Michelle Lujan Grisham is expected to sign the bill. Getting HB 20 to final passage was called “one of the most difficult lifts this session,” by Rep. Susan Herrara, D-Embudo. The debate around HB 20, mostly entailed concerns about the business community’s, particularly small businesses, ability to absorb the cost.