Document Type


Publication Date



PB&J, Family Services, Inc., through this brief as amicus curiae, has demonstrated that the decision rendered by the Court of Appeals was correct. The New Mexico Legislature did not draft NMSA 1978, § 36-6-1(D) (1973) to encompass the situation of a pregnant woman using drugs or alcohol during pregnancy. The Legislatures failure to pass legislation specifically criminalizing such conduct after careful consideration indicates that the Legislature did not intend for the statute to be so broadly construed. This is particularly true when considering the fiscal impact reports accompanying the proposed legislation. This decision by the Legislature is consistent with sound socioeconomic policy that was cited in the fiscal impact reports accompanying the proposed bills. Criminalizing drug use during pregnancy would have a devastating effect on pregnant women and their fetuses' health. In addition, criminalizing behavior during pregnancy would also likely burden a pregnant woman's decision to carry her fetus to term. Further, the children of these women would also suffer the effects of separation from their mothers at critical developmental stages. These women and children would likely have better psychological outcomes from treatment not incarceration. In addition, studies of attempts to criminalize behavior during pregnancy nationally indicate that prosecution under the State's proposed interpretation of NMSA 1978, § 36-6-1(D) (1973) would in all probability have a disparate effect on low-income women, women of color, and their children. Finally, a cost-benefit analysis of the potential impact of prosecuting women for using drugs during pregnancy reveals a negative financial impact on the foster care and juvenile justice systems of this State. New Mexico cannot afford to create an additional category of children likely to end up in the foster care system. Treatment is a more cost-effective option.

Publication Title

Brief Amicus Curiae


Amicus Briefs, Drug Use During Pregnancy, Fetal Health, State Court Decisions, United States Supreme Court Decisions, New Mexico Statutes, Federal Statutes, Federal Regulations, New Mexico Legislation


An amicus brief in support of the defendant in the matter of State of New Mexico v. Cynthia Martinez.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.