The Fight for Reproductive Rights in NM
MAUREEN SANDERS is a practicing attorney, a former professor at the UNM School of Law, and serves on the volunteer legal panel of the ACLU-NM. Ms. Sanders also successfully argued the marriage equality case in front of the NM Supreme Court in 2013. This speech was given by Ms. Sanders at the Planned Parenthood New Mexico Breakfast of Champions on JANUARY 29, 2015, in Santa Fe, NM.
Good morning! Thanks for inviting me to share a few thoughts with you this morning.
I know in these days of constant attack against the reproductive rights of women in this country, a sense of sadness and helplessness can creep into to our collective consciousness. I don’t think we need or should go there. If we do, the attackers will have won by wearing us down. I could say “I have a dream” but somebody else already used that line—and much more eloquently than I ever could.
But what I do want to do today is to give you a bit of a New Mexico history lesson. That history can give us pointers about how to go forward and some thoughts for the future of reproductive rights in New Mexico.
In 1973 the New Mexico Legislature passed the New Mexico Equal Rights Amendment after a hard fought battle and lots of women coming to Santa Fe and testifying and lobbying. There were many strong New Mexican women who were very vocal during that push for a legislative statement of the equality of women. I wasn’t involved—it was before my political awakening and my law school training—but I’m told that Anne Bingaman (and her law students, including Betty Reed who is here this morning) were a force to be reckoned with during that effort so I feel comfortable saying it was a loud and strong message being given to the legislators. I’m also told that Pam Minzner was her softer spoken ally in the effort. Although the effort wasn’t successful on a national level, it was in New Mexico and it has come in very handy.
So let’s jump to the 1990’s. By then the United States Supreme Court had recognized the constitutional right of women to an abortion. However, it had also concluded that the federal constitution and laws did not require that federal Medicaid money be available for the payment of medically necessary abortions. The Court said the Hyde Amendment, which restricted the use of Medicaid funds to abortions only in the case of rape, incest or to save the life of a mother, was allowed.
The local reproductive rights advocates and providers—folks like Nancy Ellefson, Carol Tucker Trelease, Sue Stecketee, Bruce Ferguson, Lucia Cias, Curtis Boyd, and Lewis Koplik—began banging on the doors of a few lawyers asking…isn’t there something we can do in court for the indigent women of NM. They found Ann Scales at the law school and convinced her to look at the issue in 1992 or so. That group was lucky to find the best legal mind in the country for women’s rights issues. Ann gathered together a group of national and local lawyers to take on that issue. A legal team was formed and ended up working together for 5 years with two organizations, the ACLU and The Center for Reproductive Law and Policy. It is important to tell the story of those years for the context of my thoughts for the future and the role of each of you going forward.
Bruce King was Governor. Dick Heim was Secretary of Health (or whatever the Department name was at the time—New Mexico has a propensity for changing names of committees and agencies). The agency did not provide payment for medically necessary abortions in its Medicaid program. We had a series of meetings with Sec. Heim with both sides strong in their views but respectful to one another. We talked with one another a lot. At his request we submitted our legal arguments in writing to him on why under the NM constitution the state had an obligation to pay for medically necessary abortions of indigent women. Our primary argument was that it was unconstitutional discrimination to provide all medically necessary services to men and not to women under the Medicaid program.
Ultimately he said he would not change the policy. We said we would file suit after the legislative session.
That session, several bills to limit abortions were introduced. All unsuccessful thanks to some great legislators who were not afraid to stand for the right of a woman to make her own health decisions. During the committee hearings there was quite a bit of testimony from the people of NM and health care providers. The session ended and we were about to file our complaint in state court against the State.
A day or two after the session I was asked to meet Sec. Heim and his general counsel. Dick Heim looked me in the eye and said:
Maureen, as you know I am a Catholic man with a family of many children. I have a moral and religious objection to abortions. This is very difficult for me. I have spent a lot of time thinking about this since we last met. I listened to the testimony during the various legislative committees during the session. I have come to the conclusion that as a public official I don’t have the right to impose—through the power of my office and the agency I lead—those values on others.
I was stunned and had tears in my eyes. He asked for some time to talk to the Governor about proposing regulations which would provide state Medicaid dollars for medically necessary abortions for indigent New Mexicans. Wow what a day, what a champion.
The Governor ended up agreeing with Sec. Heim’s position. New regulations were proposed. The hearings were held in the House chambers because of the need for a big space and security. Hundreds of New Mexicans were in attendance and many testified—for and against. I remember sitting there with Louise Melling from national ACLU who turned to me and said “you know Maureen I have been to these types of hearings all over the country and what strikes me most in New Mexico is how everyone on all sides of the issue respect one another and see each other as human beings.” She said that right after I had had a very pleasant conversation with two Franciscan nuns who we had gotten to know at the various hearings. They were both very short and always wore full traditional garb—head covered, full length robes, long rosaries hanging from their waists. They drove a Mitsubishi. We referred to them affectionately as the itsy bitsys in the Mitsubishi.
That day lots of security was a block away and available but not evident. No need to call them in that day. Everyone was respectful of one another and no provider felt threatened. It was a good New Mexico day.
Following the hearing the King/Heim regulations were adopted and the indigent women of New Mexico who were eligible for Medicaid were able to access medically necessary abortions. Then an election was held and King lost the Governor’s race to Gary Johnson.
We all know elections have consequences, and it certainly did in 1994. Immediately the new Secretary took steps to enact regulations which would repeal the King/Heim regulations and stop the use of state Medicaid money for medically necessary abortions. Instead Medicaid would only pay for abortions in the event of rape, incest, ectopic pregnancy or to save the life of the mother. As the effective date of the Johnson regulations approached, our crack legal team filed suit to stop them. Planned Parenthood of New Mexico was one of the Plaintiffs.
The Attorney General (Tom Udall) declined to represent the State agency and ultimately had his office file an amicus brief in the New Mexico Supreme Court in support of our position. We put forth the harsh realities faced by the women in New Mexico whose medical status (both mentally or physically) put them in the position of needing an abortion. The issue before the court was really a legal one: did the New Mexico Constitution require the State to pay for medically necessary abortions for their Medicaid recipients? Remember federal law said NO not required to. But here in New Mexico we have some laws that don’t track federal law and some of them are in the New Mexico Constitution. We have all heard—well at least those of us who are old enough to have been allowed to have Civics classes when we went to public schools—these words from the 14th amendment to the FEDERAL constitution:
Nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The US Supreme Court didn’t think that the language in the federal equal protection clause required states to provide Medicaid dollars for medically necessary abortions. I knew from my law school classes with Ruth Kovnat, that federal law did not provide full protection to women’s rights.
But in New Mexico our constitution reads:
No person shall be denied life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Equality of rights under law shall not be denied on account of the sex of any person.
That last sentence—that was the ERA!!! So the crux of the argument was that it was unconstitutional to provide all medically necessary services to male Medicaid recipients but not to women.
The day for the hearing in district court came. The court had upped security that day. Each of us had to go through the electronic box and had to be wanded by a Deputy County Sheriff who was about 6 foot six and 280 pounds. I walked into the courthouse with a few of our provider clients. Somehow in the line at the box we got separated so after I passed through the box and got wanded I stepped to the side to wait for the clients. My back was to the box and I was talking to some other folks. All of a sudden behind me I hear the electronic box going off like crazy. Because I was on high alert, I immediately turned around to make sure my clients were ok. What I saw was an itsy bitsy standing inside the box with a frightened look on her face—her very long metal and wooden rosary had made the box go crazy. I started to smile and then I noticed that the deputy had turned around to see what made the box go off. He turns around, wand in hand, to see what happened. He had to look down about two feet and then he saw her—panic hit him. There he was, a proud Hispanic man born and raised in northern New Mexico wand held high looking at the itsy bitsy. The conflict was apparent on his face—flashing in his mind were the stern words of his mother, “Never confront or touch a nun. Each of them is a woman of god who must be respected and feared.” Versus the voice of the Chief Judge Steve Herrera earlier in the day sternly saying that nobody was to get into the courthouse without going through the box AND being wanded—nobody! Assessing the situation—and his employment future, correctly—the Deputy said, “I’m sorry sister but I have to check to see if you are packing your gun today!” It was perfect. I mean perfect. She looked up at him and said, “I understand and appreciate you doing this job today.”
Judge Herrera issued his ruling after the hearing to a packed Santa Fe courtroom. What I remember about his words was that he was aware that many had firmly held beliefs, religious and otherwise, about the abortion issue. And this was especially true in northern New Mexico, but his job as a Judge was to apply the law to the situation not his personal beliefs. He found that the New Mexico Constitution required that the State provide all medically necessary services to woman just as they did to men.
The State appealed the decision and ultimately the New Mexico Supreme Court ruled on November 25, 1998 that the Johnson regulations were unconstitutional under the New Mexico Equal Rights Amendment. That opinion was authored by Justice Pamela Minzner.
An historic case for two reasons: first, that indigent women in New Mexico have access to medically necessary abortions paid for by the state Medicaid program, and secondly, because of the ERA in New Mexico, the government cannot discriminate against women unless it can show a compelling state interest which can only be furthered by that differing treatment.
Later Justice Minzner authored another opinion in the case which denied our request for attorney fees. We made an argument that the judiciary should decide that fees were recoverable for claims brought under the New Mexico Constitution. The Court opined that the question was one for the legislature to address, not the courts. Thus, I have with me today the entire fee I received on the case—a very lovely coffee cup by a local potter with my name and NARAL/Right To Choose (the case name) on it. I use that cup every morning for my coffee—and have for twenty years—to remind me every day that we must continue fighting for the rights of New Mexican women. I think about it every morning.
So, over the last 20 years reproductive rights fights in New Mexico have mostly occurred in the legislature—and every year. Bills regarding forced parental consent, bans on later abortions, forced ultrasounds, and forced waiting periods. But for the most part none passed because of our champion legislators who have been on the frontline every year, year after year.
Then 2013 came and a proposal for an Albuquerque Ordinance came to the ballot through a citizen ballot initiative process. That proposal if passed by the city’s voters would have banned abortions post twenty weeks. The proposed ordinance was, in my personal humble opinion, unconstitutional under the New Mexico constitution.
Those who supported the right of women to control their reproductive lives came together and formed RespectAbqWomen. In September the polls showed the ordinance would be passed by 15 points. In November the election was held and the Albuquerque voters said NO by 10 points—55 to 45. Why? The people of Albuquerque decided they did not want government coming between a woman and her doctor. Once the voters got the accurate information, they voted down the proposed ban.
Ok, so that is the end of the history lesson for today. What is the take away? We haven’t made much progress in the last twenty years. Last year another crack legal team drafted briefs to stop the unconstitutional Albuquerque ordinance in the event the ballot initiative was passed. As I was editing the brief I couldn’t help but think, didn’t I write this same brief twenty years ago? Every year bills are introduced in the New Mexico Legislature which would limit the reproductive rights of women and engage in the continued shaming of women who have an abortion. Why has this important civil rights issue got stuck? I think it is because WE don’t talk about it in our community.
We as a community have kept our support for reproductive rights in the shadows. We only talk to each other after we have somehow figured out the ‘other’ has the same views. And even then we end up whispering. We shouldn’t fear saying out loud that the ability of women to control their reproductive lives is important. We shouldn’t fear saying out loud that government has no business coming between a woman and her doctor. The lessons learned from the Albuquerque experience is that the majority of New Mexicans of all political and religious persuasions don’t want government interfering in the doctor patient relationship.
Today given the positions taken by many of our state government leaders, reproductive rights are at risk. What can we do? We can honor the work of the champions who have come before us—the people who pushed for the ERA, the legislators who voted for it, the legislators who have stood for reproductive rights year after year and who you honor at this breakfast, the Secretary who came to realize public officials should not impose their moral and religious values on others, the Governor who stood behind him, the Judges who recognize that the New Mexico Constitution is alive and well, the Attorney General who took a position and most importantly the providers who have bravely continued to provide services to the women in New Mexico.
So now you are thinking OK, I honor all those people so now I can go home. No, that is not the point of my comments today.
Each of you is needed to be a participant in the conversation about reproductive rights in New Mexico. Talk to your neighbors, work colleagues, sports team members, book club members, spouses, children and so on. I’m not suggesting an in your face campaign every day. I’m talking respectful conversations with people in your life.
Look, we all saw what happened the past few years regarding gay marriage. Folks may think it happened over night. It did not. One thing that happened over a period of a couple of years before any lawsuit was filed was that an intentional soft education program was conducted in New Mexico. It was so soft you probably didn’t know it existed. But people were taught how to have those so called “difficult conversations” with their neighbors, work colleagues, friends and others. People learned how other people thought and felt about the issue—and that people they knew wanted to get married. That changed the societal environment.
The same change can occur in the reproductive rights world. Right now the only ones usually talking to the public are Fox News and their friends and watchers. Shouldn’t we be the ones who are giving information to our neighbors and friends? Let them know abortion is safe. Let them know the medical providers are already regulated. Let them know forced parental notification is unsafe and inserts the government where it does not belong. Talk to them about whether they would want the State to say that their daughter, partner, spouse, niece, granddaughter could not have the medical care she and her doctor thought she needed.
Look what happened in Albuquerque while the whole nation was watching. When the voters were actually talked to, they got it—leave reproductive decisions to a woman and her doctor; government shouldn’t be making decisions and interfering with that relationship. The voters recognized that each women’s situation is different and we should respect women and their families by letting them make those personal decisions about what is best for their health.
Recently, Democratic Congressman Tim Ryan announced a change in his position. He has switched his position from “pro-life” to “pro-choice” after twelve years in the House. In announcing that change, he said his conversations with women across Ohio and the country about the myriad reasons that lead them to have an abortion led him to change his mind. Listen to that—HIS CONVERSATIONS WITH WOMEN changed his mind.
People in every quadrant of the city agreed once they became informed. So while many in this room may be focusing on what happened in the voting booths in November 2014, I focus on November 2013 voting—New Mexicans of all political persuasions stood with women. We should embrace that reality and keep that buzz going. New Mexico legislators from all over the state assume they know what their constituents views are on reproductive rights, but do they? Have we told them? Or have we helped to keep the conversation in the shadows? Let’s not stand by and say, well if they pass something it will probably be unconstitutional and then some lawyers can get it struck down by the Courts. Let’s not leave it to the courts alone. Let’s do our part as legislators, public officials and community members. Let’s try to change the community’s attitude—to one where governmental interference has no place in reproductive decision making. Let’s have those respectful conversations with everyone whether we think they will agree with us or not. My dream is that we give meaning to the words in the New Mexico Constitution:
Equality of rights under the law shall not be denied on account of the sex of any person.
NOTE: This piece was originally published by the New Mexico Mercury and can be accessed on their site by CLICKING HERE