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This amicus brief argues that the application of a child abuse statue to
prenatal conduct profoundly burdens women by subjecting them to disproportionate
and discriminatory policing, in that such application effectively criminalizes
the drug use and drug addiction of pregnant women, but not others. It also argues that the New Mexico Equal
Rights Amendment (ERA) guarantees of gender equality go beyond overt gender
classifications to apply searching judicial scrutiny to discrimination that
burdens, restricts, or punishes women for their ability to bear children. Furthermore, when the burden consists of
criminal prosecution and the deprivation of the fundamental rights of liberty,
the keenest judicial vigilance is required.

Planned
Parenthood of New Mexico and the New Mexico Women's Justice Project joined the
ACLU in filing its brief.

On May 11, 2007, the New Mexico Supreme Court quashed
the writ of certiorari. In short,
the Court decided they never should have taken the appeal from the State in the
first place. The lower appellate
court's finding, that New Mexico's child abuse statutes do not apply to the
relationship between a mother and her fetus and that to interpret the statutes
that way would violate Ms. Martinez's due process rights, is final and stands as
good law. In finding for Ms.
Martinez, the New Mexico judiciary joins with 20 other state appellate courts
that have concluded that child endangerment laws do not allow states to
prosecute pregnant women for behavior the state believes could harm
fetuses.