The Southwest Women’s Law Center monitors significant developments in New Mexico and nationally to identify opportunities to help create greater legal protections and rights for women and girls.

Victory in the New Mexico Supreme Court for Pregnant Women, SWLC Prevails
The Southwest Women’s Law Center (SWLC) had a major victory before the Supreme Court of New Mexico in May of 2007. SWLC’s client, Cynthia Martinez, who was struggling with drug addiction, was arrested, jailed and prosecuted for child abuse because she took drugs during her pregnancy. SWLC agreed to represent Ms. Martinez in her appeal before the Supreme Court along with cooperating attorneys Joseph Goldberg and SWLC board member Alexandra Freedman Smith. We argued that the New Mexico child abuse statute was never intended to apply to a pregnant woman’s conduct during pregnancy – including tobacco use, alcohol use, bad nutrition and even the failure to obtain prenatal care – could subject women (but not men) to criminal prosecution. SWLC obtained the support of dozens of national and local public health, civil rights, and other organizations that work on behalf of children and families. They joined in four separate “friend of the court” briefs that were filed before our state Supreme Court. Leading public health and medical organizations told our Supreme Court that criminalizing substance abuse by pregnant women is bad public policy that will harm children, not help them, and that such prosecutions drive women away from the healthcare system.

In a surprisingly swift decision, the Court made its ruling only four days after oral argument, upholding a lower court ruling that the felony child abuse statute does not apply to Ms. Martinez. The Supreme Court’s ruling ensures that women like Ms. Martinez who are struggling with addiction will not be afraid that they will be thrown in jail if they seek prenatal care, and will allow them to speak openly to their healthcare providers to obtain treatment for substance abuse.

Southwest Women’s Law Center Amicus Briefs

The Southwest Women’s Law Center has joined in numerous amicus (friend of-the-court) briefs around the country to promote justice for women:

Enabling Women to bring Sexual Harassment Claims for a Hostile Work Environment
Harris v. Mayor and City Council of Baltimore (brief filed in the U.S. Court of Appeals for the 4th Circuit in June 2009)
A woman working as an electrical maintenance technician for the City of Baltimore heard co-workers and her supervisors refer to women as “bitches” nearly everyday and as “cunts” and “troublemakers” regularly, but less often. Her co-workers made derogatory, vulgar, sexual and offensive comments about women and provocative photos of partially clad women were posted on the walls of the common areas and placed on a glass table in the lunchroom. The lower court held that this conduct was not “severe or pervasive” enough to create a hostile work environment and created a new higher and more difficult standard for proving the existence of a hostile work environment. SWLC along with other civil rights organizations is urging the Fourth Circuit Court of Appeals to reverse this decision and allow the sexual harassment to proceed.

Discrimination Against Pregnant Women Through Reduced Retirement Benefits
AT&T Corporation v. Noreen Hulteen et al (decided May 2009)
Women employees at AT&T were not credited for their maternity leave time when the employer calculated their retirement benefits, even though employees who took other medical leave did earn credit toward their retirement benefits. The women took maternity leave prior to the Pregnancy Discrimination Act (PDA), but later sought retirement benefits. Once the PDA was passed, AT&T began to treat pregnancy leave the same as other leave. The U.S. Supreme Court ruled in favor of AT&T. This case dealt only with employees who took leave prior to the PDA.

Legal Remedies for Students Who are Victims of Sexual Harassment
Fitzgerald v. Barnstable School Committee (decided January 2009)
Students on the school bus sexually harassed five-year-old Jacqueline Fitzgerald so severely and for such a long period of time that she experienced post-traumatic stress disorder. The Fitzgerald family pursued two legal theories: violation of Title IX, the law that guarantees equal opportunity in education, and violation of § 1983, the law that allows the Fitzgeralds to sue school officials for violating their daughter’s right to Equal Protection under the United States Constitution. The technical legal question for the United States Supreme Court was whether a plaintiff could assert both claims, or if Title IX precluded the § 1983 claim.

Subpoena of Reproductive Rights Organizations’ Documents
Stormans, Inc. v. Selecky, Civil Action No. CV-05374-RBL (October 2008)
Our colleagues at the Northwest Women’s Law Center (NWWLC) in Seattle have been working for several years to ensure that women are able to fill contraceptive prescriptions at their local pharmacies. They urged
the State Board of Pharmacy to pass a rule requiring pharmacies to fill patients’ prescriptions unless there is a medical reason not to do so. A group of pharmacists and a pharmacy sued, contending that the rule violates their First Amendment right to religious liberty. The NWWLC intervened in the case on behalf of a group of people living with HIV. The pharmacy plaintiffs subpoenaed the records of the NWWLC, as well as those of Planned Parenthood of Western Washington and NARAL Pro-Choice Washington. They were asked to produce documents including membership lists, research and advocacy strategies, and communications with other advocates and state officials regarding the Pharmacy Board regulation. This is a dangerous attack on the first amendment rights of organizations seeking to petition their government. The Southwest Women’s Law Center joined an amicus brief in support of our Washington State colleagues urging the Court to deny the plaintiffs’ motion to obtain those documents. Unfortunately, the Court ordered the public interest organizations to produce some of the requested documents.

Woman Shackled During Labor
Norris v. Nelson, U.S. App. LEXIS 15270 (8th Cir. July 18, 2008)
Shawanna Nelson was imprisoned for credit card fraud and writing checks with insufficient funds when she was six months pregnant. When she went into labor, she was handcuffed and placed into leg restraints and taken to the hospital. There, she was shackled to the bed during most of her labor. Ms. Nelson sued for civil rights violations, claiming that she sustained a permanent back injury as well as extreme mental anguish, pain and suffering. However, the federal appeals court held that there was no constitutional violation. SWLC joined numerous organizations in a brief asking the full Eighth Circuit Court of Appeals to hear the case and reverse the decision, arguing that shackling pregnant women to a bed during labor and delivery is a danger to maternal and fetal health and that the treatment of Ms. Nelson did in fact constitute cruel and unusual punishment.

Employer Sex Discrimination Against “Effeminate” Man
Prowel v. Wise Business Forms, No. 2:06-CV-259 (W.D. Pennsylvania, September 13, 2007)
An employee faced constant ridicule and insults at work because he was considered to be effeminate and did not conform to masculine norms of behavior. He sued his employer for sex discrimination under Title VII of the
Civil Rights Act, but the district court dismissed the complaint concluding that the prejudice was based on his sexual orientation and not because he was male. The case was appealed to the Third Circuit Court of Appeals. The amicus brief in support of the employee argues that the law is violated whenever an employee is harassed for not conforming to stereotypical gender roles. Any other decision would unfairly exclude complaints involving prejudice related to sexual orientation, and would particularly harm women in non-traditional employment who face discrimination based on gender stereotypes.

Sexually Hostile Environment for University Students
Simpson v. University of Colorado, 500 F. 3d 1170 (10th Cir. 2007)
Two women were sexually assaulted by football players and recruits during a recruiting weekend at the University of Colorado. The university had a policy to show new recruits “a good time” which led to a culture of pairing recruits with female “ambassadors” for entertainment. The university knew about past incidents of sexual assaults during these recruiting weekends, and yet the coaching staff responded in ways that only encouraged the behavior. The women brought a lawsuit against the university under Title IX of the Education Amendments of 1972 for maintaining a sexually hostile environment, but the district court dismissed the case. With the support of amicus briefs filed by numerous organizations and advocates, the federal appellate court was persuaded to reverse the ruling.

The Court found that the university showed “deliberate indifference” to the risk of sexual assault created by the school’s own policies and its failure to maintain guidance or supervision over the recruiting program.

Retaliation Against Employees Who Witnessed Sexual Harassment
Crawford v. Metropolitan Government of Nashville and Davidson County, 129 S. Ct. 826 (2009)
A government employee, who worked as a payroll coordinator for over thirty years, was fired after she cooperated with an internal investigation of sexual harassment by a supervisor. The employee had not initiated the complaint, but described incidents of sexual harassment in response to the investigation. After she was fired, she sued the employer in district court for illegal retaliation under Title VII of the Civil Rights Act. The Sixth Circuit concluded that the plaintiff was not protected because she only answered the employer’s questions. This ruling would have a devastating impact on sexual harassment and other workplace discrimination cases by allowing employers to retaliate against employees who come forward and cooperate in internal investigations of discrimination. The amicus brief argued that the employee should be covered under the anti-retaliation laws in order to eliminate discrimination and ensure that women will not be fired or demoted if they tell their employers about harassment in the workplace. The Supreme Court agreed, reversing the lower court decision.

Abortion Procedures Outlawed by the U.S. Supreme Court Without Health Protections
Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America, 550 U.S. 124 (2007)
In April 2007, the United States Supreme Court dramatically undermined a woman’s right to choose by making a decision that placed politics before women’s health. In what is known as Carhart II, the Court upheld a federal ban on certain abortion methods, despite the fact that the ban did not contain any exception to protect women’s health. It bans specific abortion procedures and permits legislators to overrule a doctor’s medical judgment in the face of “medical uncertainty”. This is a dangerous precedent that could have implications far beyond abortion and reproductive health. The Court also held that the “State’s interest in promoting respect for human life at all stages in the pregnancy” could outweigh the woman’s interest in protecting her own health. The case was decided 5-4 over a strong dissent written by the only woman on the Court at the time, Justice Ruth Bader Ginsburg. According to Justice Ginsburg: women’s “ability to realize their full potential . . . is intimately connected to their ability to control their reproductive lives.” She further wrote that the statute “and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by the Court – and with increasing comprehension of its centrality to women’s lives.”

Parental Notification for Abortions
Ayotte v. Planned Parenthood of Northern New England, et al, No. 04-1144.
In June of 2003, the New Hampshire Legislature passed the Parental Notification Prior to Abortion Act, prohibiting abortion for minors unless a doctor notifies the minor’s parents 48 hours in advance of the procedure. According to the Act, a physician could forgo notifying the parents if the minor’s death is imminent, but there are no exceptions for medical emergencies short of death.

Planned Parenthood challenged the Act. Both the United States District Court and the First Circuit Court of Appeals found the Act unconstitutional because it did not have a provision for protecting the health of the pregnant woman. The ACLU Reproductive Freedom Project filed a brief in support of Planned Parenthood, which the Southwest Women’s Law Center also signed. The United States Supreme Court agreed with the lower courts and Planned Parenthood, and struck down New Hampshire’s law in January 2006.