In a democracy, one of the indispensable principles is the notion that no person is above the law. This precept is the great stabilizer of nations and provides the foundation for rule of law in the land. When all people are held accountable to the same set of rules, abuse and tyranny are minimized and even the least powerful among us have access to justice.

But with the pardoning of Sheriff Joe Arpaio on August 25th, President Trump trampled on this core principle and told the world in no uncertain terms that he believes some people in the United States are indeed above the law.

You are likely familiar with Arpaio, whose infamous tenure as Sheriff of Maricopa County, Arizona was defined by systematic racial discrimination, cruelty, and wanton disregard for the law. These pages are too few to provide a full accounting of his unlawful conduct, but here is a brief overview:

Arpaio ordered his deputies to target Latinos and other minorities in traffic stops, workplace raids, and neighborhood sweeps, often illegally detaining them without reasonable suspicion that they had violated any laws. These racially motivated, pretextual stops were used as a way to screen the immigration status of people who were perceived to be “foreign.”

In the Maricopa County Jail, Arpaio erected a tent city outdoors surrounded by an electric fence which he proudly compared to a “concentration camp” where he kept “all the Mexicans.” Temperatures inside the tents regularly exceeded 120 degrees during the summer, and inmates were forced to work in chain gangs reminiscent of the Jim Crow era.

He was so obsessed with targeting undocumented immigrants that he neglected to investigate sex crimes, including abuse against children.

In 2007, the ACLU filed a class action lawsuit against Arpaio alleging that he was using racially biased policing to illegally enforce federal immigration law. The ACLU prevailed and a federal court ordered Arpaio to cease these illegal activities in 2011. However, Arpaio deliberately allowed these practices to continue unabated, and even bragged to the media that he had no intention of changing his ways. This led to a civil contempt proceeding and ultimately a criminal conviction for contempt of court, carrying a sentence of up to six months in prison. His sentencing was set for October 6th this year.

And now, because of Trump’s pardon, the countless families tormented by this man’s 24 year reign of terror will not have justice. But even beyond that, Trump’s pardon of Arpaio sends a message loud and clear that if rogue law enforcement agencies wish to enforce federal immigration law, target people of color, or commit wholesale violations of constitutional rights, they may do so with impunity.

This has chilling implications for New Mexico and other border states. How many wannabe Arpaios lurking in the wings will be emboldened to follow his lead now that they see that racially discriminatory policing bears the presidential seal of approval?

Fortunately, the ACLU of New Mexico has spent the better part of a decade advocating against the unholy alliance of local police and the federal immigration law enforcement here in our state. Many of our largest communities have repudiated the Arpaio model of policing and enacted immigrant-friendly policies that build trust and cooperation between local police and immigrant communities. But that does not give us license to rest on our laurels.

It remains incumbent upon us all to remain vigilant and ensure that Arpaio’s brand of racist, authoritarian policing finds no purchase in our communities. If you hear about local law enforcement cooperating in federal immigration raids or checkpoints, be sure to alert us here at the ACLU of New Mexico. Because despite whatever Trump might say or do, we still believe that no person is above the law. And we intend to keep it that way.

Originally published in the Summer 2017 issue of The Torch

What good are reproductive rights if you can’t exercise them? What does it matter if abortion is safe and legal if the nearest abortion provider is hundreds of miles away? What does your right to birth control count for if you can’t afford the doctor’s visit for the prescription? What if you have a prescription for reproductive health medications, but your pharmacist—for personal reasons of their own—refuses to fill it?

The shameful truth in America is that your access to reproductive healthcare has a lot more to do with where you live and your income than anything else. We believe that people’s rights shouldn’t be contingent on zip codes, tax-brackets, or the personal religious beliefs of others. That’s why the ACLU isn’t just fighting to ensure that reproductive rights exist on paper; we’re fighting to ensure we can actually use them as well.

Winning Prescriptive Authority

Here in New Mexico, the ACLU has made several important strides in recent months towards guaranteeing meaningful access to reproductive healthcare in our communities. Behind the scenes for over a year now, we’ve been working with community partners, pharmacists, and the medical community to change the rules in our state so that pharmacists now have prescriptive authority for certain types of contraception. That means that any pharmacist who undergoes the proper training and certification can directly prescribe birth control to anyone who needs it, no separate doctor’s visit necessary.

Allowing pharmacists to prescribe contraception is a game changer for New Mexico. Our state is huge and many of our communities are very remote. That combined with ongoing shortages of primary health care providers, especially in rural areas, along with high rates of poverty mean that many New Mexicans struggle to access prescriptions as basic as birth control. If you don’t have health insurance to cover a doctor’s visit or can’t take time off from work to make an appointment, the barriers to accessing birth control and other preventive care can be nearly insurmountable.

New Mexico is only the fourth state in the country to give pharmacists the ability to prescribe birth control, after Oregon, California, and Colorado. The American College of Obstetrics and Gynecology has long recommended that oral contraceptives be available over the counter, and the practice has gained widespread acceptance in the medical community. With advocacy from the ACLU of New Mexico, Young Women United, and the New Mexico Pharmacists Association, the pharmacy, nursing, and medical boards in New Mexico approved the new rules governing prescriptive authority in New Mexico in June.

“Allowing trained pharmacists to prescribe and fill contraception is a huge win for our rural communities, which are most profoundly impacted by our state’s healthcare and provider shortages,” said Denicia Cadena, Policy Director at Young Women United. “This policy change will significantly impact the lives of real people currently navigating barriers to the care they need, including transportation and cost. As someone raised in rural New Mexico, I am proud to have worked alongside our partners making needed healthcare more accessible to families like mine.”

Dale Tinker, the executive director of the New Mexico Pharmacists Association, told the Santa Fe New Mexican that they would begin offering the training that will allow the state’s pharmacists to become certified, and that they expect the College of Pharmacy at the University of New Mexico to include the training for new pharmacists moving forward.

Fighting Discrimination at Walgreens

Coincidentally, the other major move the ACLU of New Mexico made this summer to protect access to reproductive healthcare was also pharmacy related. You may recall that back in 2012, the ACLU of New Mexico represented a woman named Susanne Koestner who was denied birth control at a Walgreen’s Pharmacy in Albuquerque. The pharmacist on duty at the time refused to fill her prescription explaining that “it’s against my religious beliefs.”

“I needed my medication immediately and couldn’t wait until the next day,” Koestner said. “I was forced to drive to a different part of town to get my prescription filled. Walgreens put the burden on me to find a pharmacist that had no personal objections to the medication my doctor prescribed me.”

Photo: Susanne Koestner

Koestner contacted the ACLU of New Mexico, and our attorneys threatened to file a complaint against Walgreens unless it provided assurances that it would take steps to ensure that women received the appropriate care regardless of the individual beliefs of its employees. Walgreens eventually responded by providing assurances that it had developed policies and procedures to ensure that accommodations of individual employees’ personal religious beliefs would not impose any burdens on the customer or come at the cost of women’s healthcare.

They did not deliver.

Late last year, Jane* walked into her local Walgreens pharmacy with three prescriptions to fill for her teenage daughter in preparation for an IUD insertion the following day. The pharmacist on duty filled the first two prescriptions, but told Jane she would have to get the third medication, misoprostol, at another location. When Jane asked for an explanation, the pharmacist on duty told her that, despite having the medication currently in stock, he refused to fill the prescription because of his “personal beliefs.”

Angry and embarrassed, Jane asked to speak to a manager and confronted the pharmacist about the denial of service. As Jane explained to the Albuquerque Journal earlier this year:

“I told him he was discriminating against me. That he should be ashamed for judging us, that he didn’t know my daughter’s medical history or her complications or conversation with her doctor. That he didn’t know what the medication was for. And he just looks at me and says, ‘Oh, I have a pretty good idea.’”

Misoprostol is prescribed for a variety of uses and conditions. It can be used to soften a woman’s cervix in preparation for IUD insertion, it can be used by both men and women to decrease bleeding in stomach ulcers, and when used in combination with mifepristone, it can be used to end a pregnancy. The pharmacist saw the name of the drug and, because the patient was a woman, made an automatic (and erroneous) judgement about what it was for and refused to fill it.

Unfortunately, Walgreens’ policy under these circumstances is to turn women away and send them to a different pharmacy location. This is unacceptable, no matter how conveniently located the alternate pharmacy may be. Many women lack transportation, store hours may vary and pose barriers, and some communities lack nearby alternatives altogether. More importantly, women like Jane are forced to experience the real and lasting emotional impact of being denied a service and turned away because of their sex and related health needs.

Jane took her complaint to the Southwest Women’s Law Center, who partnered with the ACLU of New Mexico to write another letter to Walgreen’s demanding they address this persistent discrimination. After Walgreen’s representatives failed to provide adequate assurances that they intended to address this problem, the ACLU of New Mexico filed official complaints with the New Mexico Human Rights Commission alleging that the denial of service related to women’s reproductive health is sex-based discrimination.

“Women should be able to walk into any pharmacy that serves the public with full confidence that they will receive the care and medicine they need without being disrespected and discriminated against,” explained ACLU attorney Erin Armstrong.

“Birth control and other medications related to reproductive health are a vital part of healthcare for women. Walgreens can work to accommodate the personal beliefs of its employees, but they must not do so by permitting discriminatory denials of care that burden their patients and customers.”

There’s an old saying about freedom that goes, “My right to swing my fist ends where your nose begins.” Everyone is entitled to their own personal religious beliefs; no idea is more fundamentally American than that. But employees’ beliefs do not permit businesses to discriminate against or harm others. Open for business means open to everyone.

Your Rights in the Real World

While the ACLU is best known for defending the lofty principles enshrined in the Constitution, we are equally dedicated to ensuring that those principles actually mean something where the rubber meets the road. Nowhere is this more important than in the realm of reproductive rights. Roe v. Wade established that women have a constitutional right to abortion more than 40 years ago, but anti-abortion activists have been erecting barrier after barrier to accessing that right ever since. In some states, those barriers make accessing abortion nearly impossible for a majority of women.

New Mexico is fortunate in that we have successfully blocked these types of abortion restrictions from becoming law in our state, but that doesn’t mean there aren’t a host of other barriers preventing women from fully accessing basic reproductive healthcare. It’s not enough for reproductive healthcare to be legal, it has to be available, accessible, and affordable as well. By opening up prescriptive authority in New Mexico pharmacies and ensuring those pharmacies are not allowed to discriminate, the ACLU of New Mexico and its partners made huge strides this summer in the struggle to ensure that our rights are fully realized out in the real world.

Learn more about religious refusals on our Religious Refusals issue page.

Originally published in the Summer 2017 issue of The Torch

Robby Heckman, like many ACLU volunteers, experienced something in his personal life that shook him to the core and drove him to action. Robby was selected as a juror in the trial of Keith Sandy and Dominique Perez for the shooting and killing of James Boyd, a man living on the literal and figurative margins of our community.

For Robby, the experience was incredibly challenging on an intellectual and emotional level. The trial laid bare the enormous threats that people suffering from mental illnesses or homelessness face when confronted by inadequately trained police and it left him feeling deeply unsettled.

“I strongly believe that an important measure of our society is how we treat our most vulnerable,” he said.

Robby is an archaeologist by trade and works for a cultural resource management firm in Albuquerque. He and his family moved here from Tucson in 2006, and they live in the Northeast Heights. Robby and his wife Susan have three children - Jay is at the University of New Mexico, Ryan is a senior at El Dorado High School, and their daughter Maggy is in 3rd grade.

Many people with commitments like Robby, to work, family, and church, would have quickly returned to their busy lives after the trial concluded. But that unsettled feeling kept gnawing at him and compelled him to act.

“I couldn’t stop thinking about the trial and all of the problems I saw with APD. So, I began to immerse myself in the police reform process, learning about the developments that have unfolded since APD entered into a consent decree with the Department of Justice in 2014.”

"My experience as a juror [on the James Boyd case] appropriately dislodged me from my comfortable and privileged position in our community and compelled me to become involved..."

He eagerly read the Court Approved Settlement Agreement (CASA) and each of the subsequent reports filed by the Independent Monitoring Team. While he found the reports informative, they were hundreds of pages long, incredibly dense, and consisted entirely of narrative descriptions. Robby knew from his professional life managing large and complex archaeological data sets that there might be an alternative way to track and monitor APD’s compliance progress.

“By trade, I’m an archaeologist so I study human systems, how societies organize themselves, and how they address and resolve conflict. I believe every human institution is imperfect and flawed in some way and that institutions such as APD require checks and balances. So, I created a relational database that compiled all of the Monitoring Team’s reports, resulting in a single, cumulative data set to more easily facilitate tracking APD progress toward the reforms set out in the CASA. I wanted to make the results of the Monitor’s findings more easily digestible and accessible to the community to ensure accountability and transparency,” said Robby.

Once the database was complete, Robby wasn’t sure where to turn next – he was in possession of a powerful tool but unsure how to put it to work. Robby decided to share the database with his pastor Trey Hammond of La Mesa Presbyterian Church and he immediately recognized he was looking at something special. La Mesa Presbyterian is a member of the APD Forward coalition, a diverse group of people and organizations, including the ACLU of New Mexico, which work towards police reform. Trey knew APD Forward would be the perfect place for Robby to leverage his archaeological skill set unearthing hidden truths to advance the fight for police reform.

All of us have special talents, skills, and expertise that make us uniquely equipped to fight for justice in our communities. Like Robby, we just need to ask ourselves where we can plug in and put those talents and love to work.

APD Forward and the ACLU are fortunate to have volunteers like Robby and dozens of people just like him, who contribute hundreds of hours in passionate service to a cause they believe in. We are honored to work with him and so many other wonderful, smart, and committed individuals. If you’re not already connected with the ACLU of New Mexico’s volunteer program, we’d love to hear from you. We’re always looking for the next archaeologist, photographer, or tax accountant to help us fight for equal justice for all.

Find out more at www.aclu-nm.org/act