Promoting Reproductive Freedom for Low-Income Women
Restoring abortion funding for poor women is an immediate priority for the ACLU Reproductive Freedom Project. For far too long, the 6.5 million women in America who obtain health care through the Medicaid system have been treated as second-class citizens. Although the joint federal-state Medicaid program covers every other pregnancy-related service, the federal government and many states have enacted restrictions on Medicaid funding for abortion. The states have the right to fund more than federal law permits, but they may not fund less.
Federal and state restrictions on public funding for abortion make it extremely difficult and, often, impossible for Medicaid recipients to exercise their constitutional right to safe and legal abortion. In practice, these women do not have the same rights as other American women who can finance an abortion out-of-pocket or through private insurance coverage. Nor do Medicaid-eligible women have the same rights as men who depend on publicly funded health care. For no covered medical service that men need does the federal Medicaid program restrict the standard for reimbursement as it does for abortions.
The federal and state bans on public funding for abortion subject women to dire hardships. A 1984 study conducted by researchers from The Alan Guttmacher Institute showed that 44 percent of women on Medicaid who obtained abortions that year paid for them with money earmarked for living expenses, such as food, rent, and utilities. The delays that ensue as women try to scrape together funds cause many women to have later, riskier, and more costly abortions. Some women are forced to carry unwanted pregnancies to term. Studies have shown that from 18 to 33 percent of Medicaid-eligible women who want abortions, but who live in states that do not provide funding, have been compelled to give birth.
The ACLU is committed to ending this discrimination and the hardships it imposes. A central tenet of our mission is to ensure that the most vulnerable in American society receive equal treatment under the law. The Reproductive Freedom Project has long fought against the passage of federal and state laws that ban funding for abortion. And it has filed precedent-setting lawsuits to challenge the bans under federal and state constitutional law.
A Patchwork of Restrictions
The inequity caused by funding restrictions is almost as old as the constitutional right to abortion itself. Three years after Roe v. Wade was decided, Congress passed the first “Hyde Amendment” to the fiscal 1977 Medicaid appropriation. Introduced by anti-choice Congressman Henry J. Hyde, the Hyde Amendment barred the use of federal Medicaid funds for abortion except when the life of the woman would be endangered by carrying the pregnancy to term.
Implementation of the 1977 Hyde Amendment was blocked for nearly a year by an injunction obtained by the Reproductive Freedom Project, the Center for Constitutional Rights, and Planned Parenthood, representing a pregnant Medicaid recipient and health care providers who challenged the Hyde Amendment in McRae v. Mathews. The United States Supreme Court vacated the injunction in August, 1977, after issuing two decisions that upheld state limitations on the use of public funds for abortion. With the Hyde Amendment in effect, abortions financed by federal Medicaid funds dropped from about 300,000 per year to a few thousand.
Although the Hyde Amendment has been reenacted every year since 1976, the exceptions to the funding ban have varied over the years. After hard-fought battles in Congress, the fiscal 1978 Hyde Amendment contained — in addition to the exception for life endangerment — new exceptions for rape and incest victims and women whose health would be severely damaged by carrying a pregnancy to term. However, in 1980 the Supreme Court decided Harris v. McRae (formerly McRae v. Mathews) and upheld the constitutionality of the original Hyde Amendment language containing a single exception for life endangerment. Thereafter, Congress enacted the Hyde Amendment with only that exception from the second half of fiscal 1981 through fiscal 1993. In fiscal 1994 and 1995, the Hyde Amendment again contained exceptions for rape and incest victims.
Federal restrictions on public funding for abortion affect women other than those who receive Medicaid. By the early 1980s, Congress had added restrictions similar to the Hyde Amendment to other federal programs on which an estimated 50 million people rely for their health care or insurance. In addition to low-income women on Medicaid, Native American women, federal employees and their dependents, Peace Corps volunteers, low-income residents of Washington, D.C., military personnel and their dependents, and federal prisoners have all been denied abortion coverage in their health care. Only in the legislation for fiscal 1994 and 1995 was there some easing of these restrictions. In the last two fiscal years, Congress has restored abortion funding for federal employees and federal prisoners and permitted the District of Columbia to use local revenues to fund abortions for poor women.
Most state legislatures have also imposed restrictions on public funding for abortion. They began in the mid-1970s to pass laws limiting the use of state Medicaid funds to pay for abortions. In Williams v. Zbaraz, decided in 1980, the United States Supreme Court upheld the constitutionality of state versions of the Hyde Amendment. For the past 14 years, the ACLU and its allies have continually pursued new legal strategies to defeat state funding bans and have succeeded in winning injunctions to delay, and in some cases to prevent, the implementation of the bans.
At present, 15 states fund abortions for low-income women on the same or similar terms as other pregnancy-related and general health services. Ten of these states provide the funding under court orders.
Six states are currently defending legal challenges to their restrictions on abortion funding. The 35 states that do not fund voluntarily or under court order all pay for lifesaving abortions for low-income women, in accordance with federal law. As of 1994, federal law also requires all states to pay in cases of rape or incest (see “The Reproductive Freedom Project’s Hyde Amendment Litigation,” p. 6). Some pay as well in cases of fetal impairment or when the pregnancy threatens “severe” health problems. These states do not, however, provide reimbursement for all medically necessary abortions for low-income women.
In addition, states may bar or limit funding for abortion in health care plans. Some states ban abortion coverage in the insurance provided to public employees. In states now considering health care reform, such as Maine, Montana, and Florida, advocates of choice are working to ensure that the plans do not contain restrictions on abortion funding for the general populace. The health care reform process presents an opportunity to end inequities, as well as to perpetuate them.
The Reproductive Freedom Project’s State Constitutional Litigation
The Reproductive Freedom Project has been a pioneer in the use of state constitutional law to overturn discriminatory restrictions on public funding of abortion.
Although the United States Constitution provided the legal foundation for the reproductive rights movement, state constitutions also have proven in some cases to be sources of strong protection for reproductive choice. They have become increasingly important in the wake of the 1992 United States Supreme Court decision in Planned Parenthood v. Casey, which allows the states greater latitude under the federal constitution in restricting abortion. But the state constitutions can be interpreted independently of the federal constitution. When protection for reproductive choice is based on a state constitution, the state court’s decision is immune from federal review: no matter how far federal constitutional protection has eroded or may erode, women living in a state that has declared independent state constitutional protection for choice can turn to their state courts in the struggle to secure their rights.
The Reproductive Freedom Project’s victories in state constitutional cases have restored access to abortion services for thousands of Medicaid-eligible women. Some of our recent efforts have focused on Idaho, Kentucky, and New Mexico:
Idaho – In 1993, the Project, the ACLU of Idaho, and Planned Parenthood filed Roe v. Harris, a state constitutional challenge to Idaho’s administrative rules limiting Medicaid funding to lifesaving abortions. Our aim was to help women like “Linda Koe,” one of the plaintiffs in the suit. When she first contacted us, Ms. Koe was 18 years old, married, and 22-weeks pregnant. She had just learned that her fetus was severely — perhaps fatally — impaired by open spina bifida and water on the brain. Because Linda Koe was already in her second trimester, she had to make an immediate decision about whether to terminate her pregnancy, but she and her husband did not have the $3,000-5,000 required for a late-term abortion in Idaho. The state Medicaid program did not cover abortion, even though it does cover all prenatal and obstetrical care.
With great difficulty and with the support of her husband and their families, Ms. Koe decided to have an abortion. The Project requested an emergency order from the court to enjoin the denial of Medicaid coverage for the procedure. When the court declined to issue the emergency order, the Project secured donations to enable Ms. Koe to terminate the pregnancy.
We ultimately succeeded in striking Idaho’s discriminatory funding scheme and are now seeking to enforce compliance with the court’s order so that low-income women in Idaho receive funding for abortions on the same terms as for any other necessary medical service. In deciding Roe v. Harris, the state trial court reasoned that “[w]hile the state is not vvvconstitutionally required to provide financial assistance for pregnancy care, once it decides to do so generally, it must proceed in a neutral manner. It may not pick and choose for reasons not connected to medical necessity, especially where the choosing may invade a woman’s constitutionally protected right.” Underlying the ruling was the court’s holding that the Idaho Constitution provides broader protection for reproductive choice than does the federal constitution.
Kentucky – Earlier this year, in coordination with the ACLU of Kentucky, the Reproductive Freedom Project filed Doe v. Childers, a state constitutional challenge to Kentucky’s statutory bans on public funding for all but lifesaving abortions and on the performance of all but lifesaving abortions in public hospitals and health care facilities. At present, the Kentucky Medicaid program will cover a woman’s abortion only if a doctor certifies that her life is in danger. Our goal is to ensure that abortions are covered on the same terms as all other Medicaid services, whenever they are medically necessary. In April and July, we sought emergency relief for two plaintiffs whose health would be risked if they carried their pregnancies to term. One was “Mary Doe,” a woman with a history of kidney disease, a recent kidney transplant, and chronic high blood pressure. The other was “Jane Poe,” who was carrying a fetus with anencephaly, a fatal condition in which the fetus has no brain. The trial court denied emergency relief for “Mary Doe,” granted it for “Jane Poe,” and did not decide the larger question of the constitutionality of Kentucky’s statutory bans. We have now asked the court to issue an order prohibiting in general the enforcement of the state’s public funding and public hospital bans.
New Mexico – In this instance, the threat of a lawsuit was sufficient to persuade the state of New Mexico to issue new regulations that will end its thirteen-year-old ban on Medicaid funding for all but lifesaving abortions. The Reproductive Freedom Project, the ACLU of New Mexico, the Center for Reproductive Law and Policy, and Planned Parenthood prepared a lawsuit on behalf of abortion providers and pro-choice organizations to compel the state to revise its regulations. In November 1994, after assessing the merits of the lawsuit, New Mexico’s Department of Human Services issued new regulations authorizing funding for medically necessary abortions, beginning December 1, 1994. The new funding regulations represent a substantial victory. Unfortunately, the Department simultaneously issued regulations imposing an onerous parental consent requirement for minors who seek abortions under the Medicaid program. We are conferring with our clients to determine whether to proceed with litigation.
The Reproductive Freedom Project’s Hyde Amendment Litigation
Under the terms of the fiscal 1994 and 1995 Hyde Amendments, the federal Medicaid program mandates abortion funding in cases of rape and incest, as well as when a pregnancy endangers a woman’s life. In a demonstration of stunning cruelty, however, at least 13 states refused to comply with the 1994 and 1995 Hyde Amendments, arguing that Congress intended it to be optional, not mandatory, for states to provide Medicaid funding for rape and incest victims who seek abortions.
Along with other pro-choice organizations, the ACLU has undertaken litigation to force states to comply with the 1994 and 1995 Hyde Amendments.
In August 1994, the Reproductive Freedom Project and the ACLU of Kentucky, on behalf of a reproductive health clinic and its patients, sought to intervene in a federal court case to force Kentucky to fund abortions for Medicaid-eligible rape and incest victims. In Commonwealth v. Shalala, the state of Kentucky claims that state law prohibiting public funding of all but lifesaving abortions prevents it from funding abortions in cases of rape and incest. The Project is seeking a ruling that federal law requires Kentucky to provide Medicaid coverage of abortions in cases of rape and incest, as well as the invalidation of all Kentucky laws that conflict with federal law. In Illinois, the ACLU affiliate recently sued on behalf of Planned Parenthood and won a permanent injunction that prevents the state from suspending Medicaid funding for abortions for rape and incest victims. With the decision in Illinois, federal courts have ruled consistently in eight cases to date that states must comply with the federal law.
The Role of the Pro-Choice Majority in Defeating Funding Restrictions
The fight to end discrimination in abortion funding cannot be won only in court. Your representatives in Congress and the state legislatures must be made aware of your opposition to funding restrictions. The time to make your views known is now at the beginning of the 104th Congress and the state legislative sessions! As a result of November’s elections, anti-choice officeholders will dominate both houses of Congress and many state legislatures. In 1995 they are certain to raise the issue of public funding for abortion in a variety of contexts. Here is a sample letter that you can adapt as needed and send to your elected representatives:
The Honorable ________________ U.S. Senate
Washington, DC 20510
The Honorable ________________ U.S. House of Representatives Washington, DC 20505
As your constituent, I urge you to vote against this year’s Hyde Amendment and any other attempts to ban or restrict the use of public funds for abortion. For 18 years, federal restrictions on the use of public monies for abortion have relegated low-income women to second-class citizenship. This is a blatant violation of our American principles of equality and fairness.
Women who receive public assistance, like all women, have a constitutional right to choose abortion. The fact that they require governmental assistance for their health care does not give the government the right to dictate their private medical decisions. The government should leave this most intimate and private of decisions in a woman’s own hands.
Whether the context is Medicaid or other health care programs supported with federal funding, please oppose any restrictions on the use of federal funds for abortion. Thank you.
Halting the Abuse of Governmental Authority
Funding discrimination is one example of the American government’s recent abuses of power that interfere with the constitutional right to reproductive autonomy. Legislators have sought to control not only the ability of low-income women to have abortions, but also their ability to bear children. By experimenting with “child exclusion” policies that bar benefit increases to children conceived and born while the family is receiving welfare, or by trying to force welfare recipients to use the implantable contraceptive Norplant, the federal and state governments have been misusing their power of the purse to coerce women’s reproductive choices. In these instances, just as in the case of funding discrimination, the government is overstepping its constitutional authority and infringing on individual civil liberties. Instead, government must play a truly neutral role by allowing women to make their own decisions about their reproductive health care and childbearing.
PUBLIC FUNDING FOR ABORTION
States that voluntarily fund abortions for low-income women:
Alaska. By regulation, Alaska funds medically necessary abortions for low-income women. By court-ordered stipulation, the state is foreclosed from second-guessing a physician’s judgement that an abortion is medically necessary. See Planned Parenthood of Alaska v. Mala, No. 3AN-93-01228 Civil (Alaska Super. Ct. Feb. 25, 1993).
New York. Through its Medicaid program, New York funds medically necessary abortions for women whose family incomes are below 100% of the federal poverty level, but denies abortion funding to women with family incomes between 100 and 185% of the poverty level, although these women are eligible to receive all other pregnancy-related services. See Hope v. Perales, 634 N.E.2d 183 (N.Y. 1994).
States that are under court order to fund abortions for low-income women on the same terms as other pregnancy-related and general health services are funded:
California. See Committee to Defend Reprod. Rights v. Myers, 625 AP.2d 779 (Cal. 1981).
Connecticut. See Doe v. Maher, 515 A.2d 134 (Conn. Super. Ct. 1986). Idaho. See Roe v. Harris, No. 96977 (Idaho Dist. Ct. Feb. 1, 1994). Illinois. See Doe v. Wright, No. 91 CH 1958 (Ill. Cir. Ct. Dec. 2, 1994)
Massachusetts. See Moe v. Secretary of Admin. & Fin., 417 N.E.2d 387 (Mass. 1981).
Minnesota. See Women of Minn. v. Hass Steffen, No. MC 93-3995 (Minn. Dist. Ct. June 16, 1994), petition for accelerated review granted sub nom. Women of Minnesota v. Gomez, No. CX-94-1442 (Minn. July 29, 1994).
New Jersey. See Right to Choose v. Byrne, 450 A.2d 925 (N.J. 1982).
Oregon. See Planned Parenthood Ass’n v. Department of Human Resources, 663 P.2d 1247 (Or. Ct. App. 1983). aff’d on statutory grounds, 687 P.2d 785 (Or. 1984).
Vermont. See Doe v. Celani, No. S81-84CnC (Vt. Super. Ct. May 26, 1986).
West Virginia. See Women’s Health Center of West Virginia, Inc. v. Penepinto, 446 S.E.2d 658 (W. Va. 1993), reh’g denied, No. 21924 (Jan. 26, 1994).
States with pending lawsuits challenging public funding bans as violations of state constitutional protections:
Florida. See Doe v. Florida, CL-93-2022 AN (Fla. Cir. Ct. filed Mar. 8, 1993).
Illinois. The state is expected to file an appeal in the Illinois litigation cited above.
Kentucky. See Doe v. Childers, No. 94CI02183 (Ky. Cir. Ct. filed Apr. 27, 1994).
Minnesota. See Minnesota litigation cited above.
Montana. See Jeanette R. v Ellery, No. BDV-94-811 (Mont. Dist. Ct. filed June 1, 1994).
Texas. See Low-Income Women of Texas v. Raiford, No. 93-02823 (Tex. Dist. Ct. filed Mar. 10, 1993).
All other states have restrictive funding policies.
American Civil Liberties Union
Reproductive Freedom Project
Director of Public Policy Estelle H. Rogers
122 Maryland Avenue, NE Washington, DC 20002
Public Education Coordinator Sherrill Cohen
New York Office
125 Broad Street
New York, NY 10004
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