If the Supreme Court’s leaked draft decision on Dobbs v. Jackson Women’s Health Organization becomes reality in late June or early July, New Mexico will remain what some have called “a beacon” of legal abortion care. The state legislature passed and the governor signed last year the Respect New Mexico Women and Families Act, which repealed old language from the criminal code banning abortion in 1969. While the antiquated language had not been enforceable since 1973, many policy makers worked to pass the repeal of the old ban before a conservative-leaning state challenged Roe v. Wade at the Supreme Court level. State Rep. Joanne Ferrary, D-Las Cruces, who was the lead sponsor on a previous version of the Respect New Mexico Women and Families Act, told NM Political Report that because of that “foresight,” to “fight forward” the state now doesn’t have to “fight backwards” on abortion rights. She said that, at this time, she is not preparing legislation for further protections on abortion in the state for the next session, beginning in 2023, because of the successful repeal of the ban in 2021.
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.
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.
Gov. Michelle Lujan Grisham signed the New Mexico Civil Rights Act, which ends qualified immunity as a legal defense, into law on Wednesday. Advocates have said the law will bring greater equity to New Mexico as it also enables individuals whose state constitutional rights have been violated to bring a civil suit seeking financial remedy. The new law caps the remedy at $2 million and no case can be brought over an incident that occurred before the start date – July 1, 2021 – of the new law. Recoverability of attorney’s fees is possible but subject to the court’s discretion. The original bill, HB 4, came out of recommendations made in a report written by the New Mexico Civil Rights Commission in late 2020.
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.
Gov. Michelle Lujan Grisham and legislators spoke about legislative successes and what they expect to happen with bills that didn’t cross the finish line, including a pending special session to pass recreational cannabis.
Lujan Grisham said she was proud of how much work was done in a session marred by a pandemic.
“It’s incredibly difficult and challenging, to debate, to draft, to engage in policy making,” she said. “It’s everything from economic relief, education and health care in an environment where you absolutely have to meet the COVID safe practices.”
Particularly, Lujan Grisham praised lawmakers for passing a liquor law reform, approving a proposed constitutional amendment to use state funds to pay for early childhood education and decriminalizing abortion.
Democratic House of Representatives leadership held a press conference a few minutes after adjourning sine die on the House chamber floor to discuss Democratic accomplishments for this session. Speaker of the House Brian Egolf, of Santa Fe, said the focus for this session was recovery.
The three-pronged approach to recovery, Egolf said, was education, health and the economy. Of the more than 170 pieces of legislation that passed this year, some of the bills highlighted during the press conference included passage of SB 10, the Respect New Mexico Women and Families Act, which repealed the 1969 statute banning abortion, as well as HB 4 the New Mexico Civil Rights Act, which ends qualified immunity as a legal defense in the state and allows for financial remedy up to $2 million and the potential to recover attorney’s fees if a person’s constitutional rights have been violated. Lujan Grisham signed SB 10 into law in February.
As retired Judge Sandra Price watched the state House of Representatives debate a bill that would allow people to sue government agencies over civil rights violations, one particular moment grabbed her attention. It was when Rep. Ryan Lane, R-Aztec, rose to ask the bill’s sponsors — House Speaker Brian Egolf, D-Santa Fe, and Rep. Georgene Louis, D-Albuquerque — to accept a substitute bill.
The amended legislation would have required any lawmakers who work as attorneys to agree not to represent clients in complaints that might fall under the proposed New Mexico Civil Rights Act. Lane, Louis and Egolf are all attorneys.
Just days before Tuesday’s debate on the House floor, Price had filed a complaint against Egolf with the State Ethics Commission, claiming he stands to benefit if the bill is passed into law. She argued he should have disclosed that at least 20 percent of his business concerns civil rights litigation. Watching Lane — an attorney who, Price said, knew nothing about her claim — argue the point on the chamber floor made her “almost fall out of my chair.”
The bill that would end qualified immunity as a defense for police officers who infringe on a victim’s civil rights passed the House of Representatives Tuesday. HB 4, the New Mexico Civil Rights Act, passed 39 to 29 after a three-hour debate on the House floor. The bill sponsor, Democrat Georgene Louis, of Albuquerque and Acoma, said the bill has been amended as it made its way through the legislative process to address some concerns of those opposed to the bill. The bill does two things. It allows individuals in the state whose civil rights have been violated to sue a governmental body, whether municipality, county or the state, in state district court for monetary damages up to $2 million.
An overhauled civil rights bill that would prohibit “qualified immunity” as a defense to legal claims filed against government agencies would cap damages at $2 million, a change intended to assuage concerns about potentially crippling financial impacts on local governments. In another major change to a revised version of House Bill 4, introduced Friday, legal claims brought under the proposed New Mexico Civil Rights Act could only be filed against a government agency, not an individual employee. “We’re working to strike a balance between the needs of New Mexicans to have access to justice in a state court with the concerns that had been raised by counties and cities and state agencies,” House Speaker Brian Egolf, one of the sponsors, said in a telephone interview. “This is a series of compromises that we’re making because we want people to feel that their voice is being heard in a legislative process and that we’re being responsive as concerns are raised,” the Santa Fe Democrat said. The measure, which has generated stiff opposition from government agencies, would allow people to file lawsuits in state courts against state and local government entities over violations of their constitutional rights.