Texas Supreme Court weighs Medicaid abortion coverage

If the court says refusing to pay for services is sex discrimination, the decision could set a precedent to change other state policies.

By Tanya Albert, amednews staff. Dec. 17, 2001.

After hearing arguments in November, the Texas Supreme Court this term will decide whether tax dollars should pay for "medically necessary" abortions for women enrolled in the Medicaid program.

Three Dallas-area physicians are among the groups that filed a lawsuit challenging Texas' Medicaid policy, which pays for abortion services only in cases of rape, incest or where the pregnancy threatens the mother's life.

Case at a glance

The state argues the rule is in line with federal policy and that it doesn't discriminate against women.

But the doctors disagree. They say not paying for the service puts a group of low-income women -- those with medical conditions that would be aggravated by a pregnancy but that are not life threatening -- at risk for more complicated health problems for themselves or their fetuses.

"I hope the court does the sensible 21st century thing and rules to allow funding for these abortions," said retired obstetrician-gynecologist Robert Prince, MD, one of the doctors who filed the lawsuit. "These people are still sick."

A Texas lower court agreed with the physicians that not funding medically necessary abortions is sex discrimination and violates the state constitution's equal rights amendment. The state appealed that decision to the Texas Supreme Court.

Texas bases its restrictions on the federal Hyde Amendment, which prevents states from getting federal matching funds for abortion services unless the abortion is being performed because the mother's life is threatened or because of a case of rape or incest. The U.S. Supreme Court has ruled that the Hyde Amendment does not violate the U.S. Constitution.

But the amendment doesn't stop states from subsidizing abortions at their own expense. States have been grappling with the issue.

Fourteen state courts -- including those in California, Connecticut, Massachusetts, Minnesota, New Jersey, New Mexico and West Virginia -- have used different grounds to rule that their states' Medicaid programs must cover abortions.

Six state courts -- including Michigan, New York, North Carolina and Pennsylvania -- have said the restrictions are legal and that the state isn't required to pay for the service.

Cases are also winding their way through courts in Indiana and Arizona. And a case in Florida addressing sex discrimination could require that state's Medicaid program to cover medically necessary abortions.

With a recent ruling from the New Mexico Supreme Court that a Medicaid policy that doesn't pay for medically necessary abortions is sex discrimination, attorneys for low-income women are hopeful that the Texas and Florida courts will make similar rulings.

"It would be significant if both of these supreme courts ruled it was discrimination,'' said Bonnie Scott Jones, attorney for The Center for Reproductive Law and Policy, co-counsel on the Texas and Florida cases.

Conflicting views

The Texas physicians -- Dr. Prince and two family physicians -- and the low-income women they represent are not asking that the Texas Medicaid program pay for all abortions, according to court records.

Instead, they argue, the more than 365,000 women of child-bearing years who are on Medicaid deserve the same standard of "medical necessity" that applies to other reproductive health care services.

"Physicians and their indigent patients are not able to make medical decisions based on sound medical decisions," said Catherine A. Mauzy, a San Antonio attorney representing the physicians in the case. "This is a plain and simple case of discrimination. It is about providing health care for indigent people."

But the state of Texas and right-to-life advocates see it differently.

The Texas attorney general's office said in its brief filed with the high court that while the federal Constitution protects a woman's right to choose to have an abortion, nothing in the Texas Constitution requires that the state pay for someone to exercise that right. In fact, the brief states, the Medicaid program's rules say that the program will only pay for services for which the state receives federal matching funds.

The attorney general's brief also says that the law does not discriminate against women.

"Respondents have no evidence that they have been denied funding because they are women as opposed to men, rather than for the reason given on the face of the Hyde Amendment -- that they are women who chose abortion as opposed to women who chose to carry their child to term," the brief reads.

Pro-life advocates say paying for medically necessary abortions would amount to "abortions on demand." The Texas Medicaid program was billed for 11 abortions in fiscal year 2000, a Texas Dept. of Human Services spokesman said. Medicaid was billed for 10 abortions in fiscal year 1999.

"Medical necessity is such a broad term," said Courtney Fracciponte, spokeswoman for Texas Right to Life. "It can mean anything. It would be up to the abortionists to decide what is medically necessary ... maybe someone has a stomachache or is having a bad day. Texas taxpayers shouldn't have to fund that."

The physicians and family planning clinics suing the state say there are legitimate medical concerns for women who have asthma, epilepsy, cancer, mental illness or other preexisting medical conditions. Those women face increased health risks that aren't fatal, but can be debilitating for the mother or could harm the fetus, they say.

For example, a woman with epilepsy is likely to experience more frequent seizures and is at high risk of having a child with genetic defects, the plaintiffs say in court records.

Another example they point to is women with mental illness. Many of the medications used to treat mental illness pose health risks to the fetus, so a woman could have to choose between her mental health and the health of her fetus.

"These people came to my office all of the time," Dr. Prince said. "When the situation became acute, many of these women needed to be hospitalized. There are women without funds who are doomed to compulsory pregnancies. There should be provisions made to not exclude these women."

ADDITIONAL INFORMATION:

Case at a glance

The Low-Income Women of Texas as represented by Robert Prince, MD, Curtis Boyd, MD, and William Watkins West Jr., MD; The Fairmount Center; The Routh Street Women's Clinic; and Reproductive Health Services v. Eric M. Bost, Commissioner of Human Services; The Texas Board of Human Services; The Texas Dept. of Human Services; Charles E. Bell, Commissioner of Health; and The Texas Dept. of Health.

Venue: Texas Supreme Court
At issue: Whether Texas' Medicaid program should pay for "medically necessary" abortions.
Potential impact: A ruling in the plaintiffs' favor would expand Medicaid abortion coverage beyond cases of rape, incest and threats to the mother's life. It would make women who have a preexisting health condition that would be aggravated by pregnancy eligible for coverage.