The House Judiciary Committee tabled two pieces of legislation related to terminating states of emergency on Wednesday. Both HB 80 and HJR 3 sought to terminate states of emergency after 90 days unless the legislature is called into special session to address the circumstances of the state of emergency. “They are two pieces of legislation that I have worked on since about May of 2020 and have worked on in the language that’s before you and both pieces of legislation are the words that former Rep. Daymon Ely, D-Corrales, and I negotiated,” bill co-sponsor Rep. Greg Nibert, R-Roswell, said. “I bring before you these pieces of legislation because I feel strongly about the separation of powers.”
Committee member Rep. Matthew McQueen, D-Galisteo, asked about the legislature’s current constitutional power to call itself into extraordinary session by a three-fifth supermajority. “What I don’t understand is why we need this.
The state issued an emergency public health order Thursday in response to a surge of pediatric cases and hospitalizations of respiratory viruses. The New Mexico Department of Health issued the public health emergency order Thursday, urging parents to visit hospital emergency rooms with sick children only if the child shows signs of severe illness, such as significant trouble breathing. New Mexico and a few other states are experiencing some of the highest rates of influenza in the U.S., according to the NMDOH. The DOH said in a news release that the order is necessary as hospitals and emergency rooms are operating above their licensed capacity due to the surge in respiratory viruses. The surge is causing an unsustainable strain on health care providers, according to the release.
A federal judge ruled earlier this week that two women who filed a lawsuit against Gov. Michelle Lujan Grisham did not adequately show how a state emergency public health order requiring vaccines for certain activities violated their rights.
U.S District Court Judge Martha Vásquez denied a motion filed by the two women, which asked the court to issue a temporary restraining order and a preliminary injunction to stop one of the state’s public health orders that require New Mexico State Fair attendees and public health workers to get a COVID-19 vaccine.
Vásquez wrote that the two plaintiffs failed to show how they would face irreparable harm if the court did not issue an injunction.
“To obtain preliminary injunctive relief, Plaintiffs are required to prove that they are substantially likely to succeed on the merits of their claims, that they will suffer irreparable injury if the Court denies the requested injunction, that the balance of harms weighs in their favor, and that the injunction would not be adverse to the public interest,” Vásquez wrote. “Plaintiffs fail to satisfy their burden as to any, let alone all, of these factors.”
One plaintiff works as a nurse for Presbyterian Hospital in Albuquerque and the other is a mother of children who were set to show livestock at the New Mexico State Fair. Both women claimed that the public health order violated their state and federal constitutional rights. Both women also maintained that they should not be forced to get a COVID-19 vaccine that is approved under an emergency use authorization by the Food and Drug Administration. Shortly after the suit was filed, the FDA fully authorized the Pfizer vaccine for COVID-19.
“Accordingly, the provisions of the [Federal Food, Drug, and Cosmetic Act] quoted by Plaintiff, which are applicable only to medical products under an [Emergency Use Authorization], are not applicable to the administration of the Pfizer vaccine to individuals 16 years of age and older,” Vásquez wrote.
The New Mexico Supreme Court on Monday issued a written opinion that explained its reasoning behind a bench ruling regarding state emergency public health orders. The high court ruled last summer that the state and the governor are legally allowed to issue emergency health orders without a formal rulemaking process.
The court unanimously ruled that the state Department of Health and Gov. Michelle Lujan Grisham are granted, by the Legislature, the ability to issue orders limiting certain business activities. In this case, businesses were ordered to cease indoor dining during the COVID-19 pandemic.
Last year a group of business owners challenged those orders, arguing that they were arbitrary and capricious and that the normal rulemaking process should be followed to implement such emergency orders.
In her, likely final, written opinion, former Chief Justice Judith Nakamura said the emergency public health orders like the ones that were issued last year and have been updated since, provide the state with the ability to respond to “the swiftly changing dynamics of a novel, dangerous, and highly communicable disease.”
Justice David Thomson issued a special concurring opinion with a caveat to the unanimous decision. Thomson said he agreed that the state’s executive branch should have the flexibility to issue emergency orders, but that the governor’s office is not above scrutiny and questions regarding those decisions.
“The majority’s holding should not communicate that executive or legislative responses to the pandemic will always receive the same level of judicial deference as when the crisis first emerged,” Thomson wrote. “In addition, I believe we must be wary of the precedent we set beyond the scope of the COVID-19 crisis.”
Monday’s written opinion is the latest in a series of decisions from the court that validated Lujan Grisham’s response to the COVID-19 pandemic.
The state Supreme Court has yet to issue an opinion on whether ordering businesses close to the public is the same as the state taking property, which would require the state to compensate those businesses.
