Pro-Choice Groups in New Mexico Set Sights On State FOCA

Gwyneth Doland

Advocates for reproductive choice in New Mexico say the time is right to push for passage of a state Freedom of Choice Act.

While abortion is legal in New Mexico, thanks to Roe v. Wade, the
state still has an old law on the books from 1969 banning the practice.

Advocates for reproductive choice say they plan to push again in the 2009 legislative session for
passage of a state Freedom of Choice Act that would repeal the 1969 law
and consolidate three decades’ worth of laws protecting access to
contraception and abortion. A similar bill died in the House before a
vote last year but supporters are hopeful that a new environment in the
state Legislature, including more progressive members and a new female
governor, will help push the bill to passage.

But it won’t be easy. Legislators will have a huge budget deficit to
deal with. Anti-abortion groups are sure to oppose it, and the
transition between outgoing Gov. Bill Richardson and incoming Gov.
Diane Denish could result in some chaotic power struggles.

"We’re saying this is bad law, an outdated, outmoded law that needs
to be taken off the books, and we need to bring New Mexico law into
line with federal law. It’s really a clean-up," says Heather Brewer,
the outgoing executive director of NARAL Pro-Choice New Mexico.

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According to a Legislative Finance Committee analysis of last year’s version of the bill (it’s expected to be similar this year), the Freedom of Choice Act would:

… Prohibit the state from denying or interfering with a
person’s right to obtain and use contraceptives, or a woman’s right to
have an abortion prior to viability of the "conceptus." The bill would
also confer the right to provide reproductive services on health care
providers unimpeded by state action. The bill also repeals state laws …
which generally impose fourth degree felony penalties on persons
performing abortions if the pregnancy termination is not a "justified
medical termination."

"I can’t see FOCA going anywhere when we have a half a billion
dollar shortfall," says Allen Sanchez, executive director of the New
Mexico Conference of Catholic Bishops, a group that frequently lobbies
to restrict abortion and to protect social service programs.

"The legislators I’ve spoken to feel there’s enough [laws] already in place that they don’t need to go further," Sanchez says.

Still, supporters are optimistic.

"I think there’s a pretty good chance of getting FOCA through. … I
think we still have pretty good numbers in the House and Senate," says
Brian Nichols, an Albuquerque attorney and a director of NARAL Pro-Choice New Mexico who has helped to draft the Freedom of Choice Act.

One strategic concession in FOCA, designed to maximize its appeal,
is that it would not challenge the federal law known as the
"partial-birth" abortion ban.

"It’s a fight that’s not worth fighting," Nichols says, referring to
the ambiguity inherent in the law and the extreme rarity of the

Trying to get around that particular federal ban might have reduced
to nil FOCA’s chances of passing in New Mexico, but leaving it out
won’t necessarily sweeten the deal for anti-abortion groups.

"It creates a more difficult way to get any [anti-abortion]
legislation, such as parental notification, through the statehouse,"
Sanchez adds.

That’s precisely why groups like NARAL want FOCA in place. During
nearly every session, anti-abortion legislators introduce bills
restricting abortion in some way, such as requiring that teen-age girls
notify their parents before getting an abortion. So far, pro-choice
supporters have successfully fought off most of those laws. But they’re
tired of swatting at flies, they say, and the election of a strong
pro-choice president in Barack Obama has given them … yes … hope.

(A federal version
of FOCA has also been introduced, but not passed, in Congress. Barack
Obama was a co-sponsor of the 2007 Senate version of that bill, and in
a speech last year he said: "The first thing I’d do, as President, is sign the Freedom of Choice Act. That’s the first thing that I’d do.")

"The state – even the nation – is reaching some sort of a consensus
that abortion should be safe, legal and available with some
limitations," Nichols says, referring to anti-abortion ballot measures that failed in several states on Nov. 4.

It is not yet clear who will introduce the bill when the state
Legislature convenes in January. In the last session it was introduced
in the House by Reps. Gail Chasey and Mimi Stewart, both Albuquerque
Democrats; this time supporters are considering introducing it in the

The bill’s chances could be helped by the November election results,
which will bring a handful of new, more progressive allies of choice to
the Roundhouse. FOCA’s chances could be improved if progressives
succeed in an effort to shake up leadership
in the Senate and install Sen. Carlos Cisneros, a Questa Democrat, as
the body’s leader. The bill’s prospects would dim if Sen. Tim Jennings
, D-Chaves, is successful in forming a coalition of Republicans and
conservative Democrats to retain his leadership post.

And then there’s the governor’s office. Although both Richardson and
Denish have been strong pro-choice supporters, Denish has been more
intimately involved; She is an honorary board member of NARAL, and some
abortion rights advocates view her as more reliable on the issue.

Richardson has indicated that he will not relinquish control of the
office until he is confirmed as commerce secretary by the U.S. Senate
in February, leaving open the possibility that he could torpedo FOCA to
spite a supporter in the Legislature who has drawn his ire. The
governor is notorious for using his veto powers to reward those who are
loyal to him and punish those who are not.

News Law and Policy

Pastors Fight Illinois’ Ban on ‘Gay Conversion Therapy’

Imani Gandy

Illinois is one of a handful of states that ban so-called gay conversion therapy. Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans.

A group of pastors filed a lawsuit last week arguing an Illinois law that bans mental health providers from engaging in so-called gay conversion therapy unconstitutionally infringes on rights to free speech and freedom of religion.

The Illinois legislature passed the Youth Mental Health Protection Act, which went into effect on January 1. The measure bans mental health providers from engaging in sexual orientation change efforts or so-called conversion therapy with a minor.

The pastors in their lawsuit argue the enactment of the law means they are “deprived of the right to further minister to those who seek their help.”

While the pastors do not qualify as mental health providers since they are neither licensed counselors nor social workers, the pastors allege that they may be liable for consumer fraud under Section 25 of the law, which states that “no person or entity” may advertise or otherwise offer “conversion therapy” services “in a manner that represents homosexuality as a mental disease, disorder, or illness.”

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The pastors’ lawsuit seeks an order from a federal court in Illinois exempting pastoral counseling from the law. The pastors believe that “the law should not apply to pastoral counseling which informs counselees that homosexuality conduct is a sin and disorder from God’s plan for humanity,” according to a press release issued by the pastors’ attorneys.

Illinois is one of a handful of states that ban gay “conversion therapy.” Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans. None have been struck down as unconstitutional. The Supreme Court this year declined to take up a case challenging New Jersey’s “gay conversion therapy” ban on First Amendment grounds.

The pastors say the Illinois law is different. The complaint alleges that the Illinois statute is broader than those like it in other states because the prohibitions in the law is not limited to licensed counselors, but also apply to “any person or entity in the conduct of any trade or commerce,” which they claim affects clergy.

The pastors allege that the law is not limited to counseling minors but “prohibits offering such counseling services to any person, regardless of age.”

Aside from demanding protection for their own rights, the group of pastors asked the court for an order “protecting the rights of counselees in their congregations and others to receive pastoral counseling and teaching on the matters of homosexuality.”

“We are most concerned about young people who are seeking the right to choose their own identity,” the pastors’ attorney, John W. Mauck, said in a statement.

“This is an essential human right. However, this law undermines the dignity and integrity of those who choose a different path for their lives than politicians and activists prefer,” he continued.

“Gay conversion therapy” bans have gained traction after Leelah Alcorn, a transgender teenager, committed suicide following her experience with so-called conversion therapy.

Before taking her own life, Alcorn posted on Reddit that her parents had refused her request to transition to a woman.

“The[y] would only let me see biased Christian therapists, who instead of listening to my feelings would try to change me into a straight male who loved God, and I would cry after every session because I felt like it was hopeless and there was no way I would ever become a girl,” she wrote of her experience with conversion therapy.

The American Psychological Association, along with a coalition of health advocacy groups including the American Academy of Pediatrics, the American Counseling Association, and the National Association of Social Workers, have condemned “gay conversion therapy” as potentially harmful to young people “because they present the view that the sexual orientation of lesbian, gay and bisexual youth is a mental illness or disorder, and they often frame the inability to change one’s sexual orientation as a personal and moral failure.”

The White House in 2015 took a stance against so-called conversion therapy for LGBTQ youth.

Attorneys for the State of Illinois have not yet responded to the pastors’ lawsuit.

Roundups Law and Policy

Gavel Drop: The Fight Over Voter ID Laws Heats Up in the Courts

Jessica Mason Pieklo & Imani Gandy

Texas and North Carolina both have cases that could bring the constitutionality of Voter ID laws back before the U.S. Supreme Court as soon as this term.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts

Texas Attorney General Ken Paxton intends to ask the U.S. Supreme Court to reinstate the state’s voter ID law.

Meanwhile, according to Politifact, North Carolina attorney general and gubernatorial challenger Roy Cooper is actually saving taxpayers money by refusing to appeal the Fourth Circuit’s ruling on the state’s voter ID law, so Gov. Pat McCrory (R) should stop complaining about it.

And in other North Carolina news, Ian Millhiser writes that the state has hired high-powered conservative attorney Paul Clement to defend its indefensible voter ID law.

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Alex Thompson writes in Vice that the Zika virus is about to hit states with the most restrictive abortion laws in the United States, including Alabama, Louisiana, Mississippi, and Texas. So if you’re pregnant, stay away. No one has yet offered advice for those pregnant people who can’t leave Zika-prone areas.

Robin Marty writes on Care2 about Americans United for Life’s (AUL) latest Mad Lib-style model bill, the “National Abortion Data Reporting Law.” Attacking abortion rights: It’s what AUL does.

The Washington Post profiled Cecile Richards, president of the Planned Parenthood Federation of America. Given this Congress, that will likely spur another round of hearings. (It did get a response from Richards herself.)

Kimberly Strawbridge Robinson writes in Bloomberg BNA that Stanford Law Professor Pamela Karlan thinks the Supreme Court’s clarification of the undue burden standard in Whole Woman’s Health v. Hellerstedt will have ramifications for voting rights cases.

This must-read New York Times piece reminds us that we still have a long way to go in accommodating breastfeeding parents on the job.


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