In a case that pitted hard-nosed legislators and prosecutors against an array of women's rights, public health, medical, and drug reform groups, the New Mexico Supreme Court ruled May 11 that a state law expanding criminal child abuse laws to include drug use by pregnant women was unconstitutional. In a summary opinion, the state high court upheld a state Court of Appeals decision that reached the same conclusion.

The ruling came in the case of Cynthia Martinez, who was charged with felony child abuse in 2003 after her newborn child tested positive for cocaine. Under the law in question, she was charged with "permitting a child under 18 years of age to be placed in a situation that may endanger the child's life or health" by ingesting illicit drugs while pregnant.

While the state argued that a pregnant woman who is addicted to drugs should be sent to jail as a felony child abuser, both the appeals court and the state Supreme Court disagreed. During oral arguments, the justices appeared to be particularly concerned about issues raised in an amicus curiae brief submitted by the Drug Policy Alliance and National Advocates for Pregnant Women on behalf of nearly three dozen other leading medical and public health organizations, physicians, and scientific researchers. The justices repeatedly mentioned the DPA/NAPW brief and expressed grave concerns about the deterrent effect such prosecutions would have on women seeking prenatal care.

Such rulings are critical to avoid criminalizing poor women, said NAPW staff attorney Tiloma Jayasinghe. "Making child abuse laws applicable to pregnant women and fetuses would, by definition, make every woman who is low-income, uninsured, has health problems, and/or is battered who becomes pregnant a felony child abuser," she explained. "In oral argument, the state's attorney conceded that the law could potentially be applied to pregnant women who smoked."

Szczepanski said, "I hope that this case serves as a reminder that pregnant women who are struggling with drug use should be offered prenatal care and drug treatment, not prosecution. There are better ways to protect our children in New Mexico, and ensure that future generations will be safe and healthy."