Case: New Mexico Right to Choose NARAL v. Johnson

This is a case about reproductive rights in New Mexico. This lawsuit was filed on April 21, 1995, in a New Mexico state trial court. The plaintiffs were four doctors and three nonprofit organizations: Abortion and Reproductive Health Services, Planned Parenthood of the Rio Grande, and New Mexico Right to Choose/NARAL. They were represented by Planned Parenthood, the ACLU, the Center for Reproductive Rights, and private firms. Plaintiffs sued New Mexico under a state cause of action, alleging that a state rule limiting Medicaid's abortion coverage violated the New Mexico Constitution. The plaintiffs sought declaratory relief, preliminary and permanent injunctions, and costs and attorney's fees. The case was heard by Judge Steve Herrera.

This lawsuit centered around a rule from New Mexico's Human Services Department called "Rule 766," which determined Medicaid abortion funding in the state. The rule was changed in 1994 so that eligible people could use Medicaid funding when an abortion was medically necessary, which meant it was necessary to avoid exacerbating another medical condition, or to allow doctors to treat or diagnose another condition, or to prevent significant physical or mental harm to the pregnant person. However, the Department enacted a new change, meant to be implemented in 1995, that would eliminate Medicaid funding for abortions unless the pregnant person's life was endangered, or in cases of rape, incest, or an ectopic pregnancy.

The plaintiffs sued to stop this change to Rule 766. They argued that the new Rule 766 discriminated against women and therefore violated the state Constitution's Equal Rights Amendment. They also argued that the state Constitution separately protected reproductive freedom as an inherent right.

New Mexico's Attorney General chose not to defend Rule 766, and instead filed an amicus brief for the plaintiffs.

On May 1, 1995, the plaintiffs won a preliminary injunction against the changes to Rule 766. Both sides moved for summary judgment, and on July 3, 1995, the trial court granted summary judgment for the plaintiffs and issued a permanent injunction.

The defendants appealed, and the state Supreme Court decided to hear the case at the request of the state Court of Appeals, which certified the appeal in October 1995. The plaintiffs cross-appealed the trial court's decision to let two people intervene on the defendant's side. The intervenors had contended that the case impacted them because their tax money went to Medicaid, and that they were advocates for the rights of potential unborn children whom the case impacted.

On November 25, 1998, the state Supreme Court affirmed the lower court's judgment. 975 P.2d 841. The Court focused only on the Equal Rights Amendment claim and did not rule on whether the state Constitution separately protected reproductive freedom.

The state Supreme Court opinion first dealt with several preliminary issues. It held that the plaintiffs had standing to sue because Rule 766 impacted them and they had a close enough link to those whose rights were at stake. The Court removed the two intervenors because they were not clearly impacted by Rule 766 and the Human Services Department could advocate for the rights of potential unborn children. The Court also ruled that the state lacked sovereign immunity from the suit, and that it was appropriate to rule on summary judgment because no material factual disputes had been demonstrated.

The Court noted that Rule 766 may not have violated the federal Constitution, but held that the state's Equal Rights Amendment, which specifically targeted sex discrimination, had more stringent antidiscrimination rules than the federal Constitution. Specifically, Rule 766 violated the Equal Rights Amendment because it harmed women by not covering a medically necessary procedure, and the state had not limited funding for any medical necessities that were specific to men. The Court rejected the state's argument that, when analyzing discrimination, a rule justified by specific anatomical differences should face less scrutiny. Instead, the Court noted that the purpose and effect of the rule had to be understood within the context of historical discrimination against women related to pregnancy and reproduction.

Furthermore, the Court held that the state had no compelling justification that would allow it to discriminate. It rejected the argument that Rule 766 helped the state cut costs, and held that the state had other options for protecting potential unborn children. The Court also rejected the argument that state law prevented the Department from funding procedures through Medicaid that the federal government did not pay for.

The two intervenors who had been removed from the case asked the U.S. Supreme Court to hear the case, but it refused to do so, denying cert on March 22, 1999. 526 U.S. 1020.

The case returned to the state Supreme Court in June of the following year to resolve the plaintiff's request for attorney's fees. The district court gave the plaintiffs costs but not attorney's fees. The plaintiffs argued that the Supreme Court should grant attorney's fees to plaintiffs that served the public good by ensuring the protection of many people's rights, but the Court rejected this doctrine. 986 P.2d 450.

As of 2023, the permanent injunction was still in place.