New Mexico Supreme Court to Hear Oral Arguments in Case Involving Prosecution of Woman Struggling with Addiction During Pregnancy

May 04, 2007

Leading Physicians, Scientific Researchers, and Medical, Public Health, and Child Welfare Organizations Oppose Treating Pregnant Women Who Give Birth in Spite of a Drug Problem as Felony Child Abusers

On May 7 at 9 a.m., the Supreme Court of the State of New Mexico will hear oral arguments in the case of State of New Mexico v. Martinez, which concerns the state's attempt to expand the criminal child abuse laws to reach pregnant women and fetuses. In this case the state argues that a pregnant woman who cannot overcome an addiction problem before she gives birth should be sent to jail as a felony child abuser.

The Drug Policy Alliance (“DPA”) and the National Advocates for Pregnant Women (“NAPW”) filed a friend-of-the-court brief http://www.drugpolicy.org/docUploads/NMvMartinezAmicusBrief.pdf on behalf of the New Mexico Public Health Association, the New Mexico Nurses Association, and nearly three dozen other leading medical and public health organizations, physicians, and scientific researchers. It informs the Court that the state’s prosecution of Ms. Martinez lacks foundation in law and medical science, interferes with the provider-patient relationship, undermines both maternal and fetal health, and ignores the fact that pregnant women, mothers, and families lack access to family drug treatment in New Mexico.

Dr. Eve Espey, an associate professor of obstetrics and gynecology at the University of New Mexico, joined the amicus brief, stating, "Addiction is recognized as a treatable disease by all medical authorities, and pregnant women and parents with addictions can and do recover. New Mexico should be focusing on increasing access to family drug treatment programs and supportive health care, not costly, ineffective, and punitive prison sentences."

Ms. Cynthia Martinez was charged with felony child abuse "for permitting a child under 18 years of age to be placed in a situation that may endanger the child's life or health. . ." Amicus argued in part that virtually everything a pregnant woman does or does not do "may endanger" the fetus, and that treating pregnancy as a crime will deter women from seeking care that advances both maternal and fetal health interests. Ms. Martinez pleaded guilty, but retained the right to appeal. A state appeals court overturned the conviction and held that the state’s child abuse statutes do not apply in the context of pregnancy. The prosecutor appealed the decision and the case is now before the New Mexico Supreme Court.

Dr. Dona Upson, an associate professor of medicine at the University of New Mexico who also signed the amicus brief, said, "Behavioral health problems need to be dealt with as public health issues, not addressed through the criminal justice system.”

Ms. Martinez is represented by Jane Wishner of the Southwest Women's Law Center and the law firm of Freedman Boyd Daniels Hollander Goldberg & Ives, P.A.

A complete list of the Amici appears below:

New Mexico Section of the American College of Obstetricians and Gynecologists

New Mexico Public Health Association

New Mexico Nurses Association

American College of Physicians, New Mexico

National Association of Social Workers

National Association of Social Workers, New Mexico

National Coalition for Child Protection Reform

Child Welfare Organizing Project

American Academy of Addiction Psychiatry

The Association for Medical Education and Research in Substance Abuse

American Public Health Association

Citizens for Midwifery

Doctors of the World-USA

Family Justice

The Hygeia Foundation, Inc.

National Perinatal Association

National Asian Pacific American Women's Forum

National Council on Alcoholism and Drug Dependence

National Latina Institute for Reproductive Health

National Women's Health Network

Our Bodies Ourselves

Pegasus Legal Services for Children

Physicians and Lawyers for National Drug Policy

Center for Gender and Justice

Yolanda Briscoe, M.D.

Bette Fleishman

Norton Kalishman, M.D.

Eve Espey, M.D.

Gavriela DeBoer

Dona Upson, M.D., M.A.

Elizabeth M. Armstrong, Ph.D.

Wendy Chavkin, M.D., M.P.H.

Ellen Wright Clayton, M.D., J.D.

Nancy Day, M.P.H.

Leslie Hartley Gise, M.D.

Stephanie S. Covington, Ph.D., L.C.S.W.