New abortion cases focus on state funding

After years of languishing in state courts, the issue of whether poor women should receive public funding for "medically necessary" abortions is coming to the forefront.

Texas is the latest state to force the issue to a resolution in what is becoming the next volatile front in the abortion battle.

Under current Texas law, Medicaid won't pay for an abortion unless the mother's life is in danger or in cases of rape or incest. That's the practice in more than 30 other states as well.

But abortion-rights advocates say that violates the Texas constitution by keeping poor women from making their own reproductive decisions.

Abortion opponents say there's no way to limit what is "medically necessary" and that public funding will lead to "abortion on demand" for hundreds, if not thousands, of Texas women.

In the end, it comes down to the traditional arguments on this divisive issue - which are once again being refereed in the courts.

"Expect to see this issue popping up every few years as states wrestle with the issue," says Thomas Mayo, a law professor at Southern Methodist University in Dallas.

This past July, for example, the Alaska Supreme Court found that denying funding for medically advised abortions violates the rights of poor women. It told the legislature to pay for them.

Just a week earlier, the Florida Supreme Court upheld a ban on state funding for such abortions, and Arizona's Supreme Court did the same a month later. The issue is still being resolved in state courts in Idaho and Indiana. The Texas case was argued this week.

While the timing of many of these cases is coincidental, they do reflect a second wave of legal challenges by the abortion-rights movement over public funding. The first wave came in the late 1970s, after Congress passed the Hyde amendment to restrict federal funding of abortions unless the mother's life was in danger. After many challenges to that federal law, the US Supreme Court upheld it in 1980.

In a major victory, the abortion-rights movement got rape and incest added to the amendment in the early 1980s. It then began challenging state laws, and these most recent cases are a result of that effort.

"In this second wave of litigation, the same issue is being tested under state constitutions, which are free to interpret the law any way they want and are not bound by federal interpretation," says Professor Mayo. "In a sense, these cases will come to resolution on their own timetable and will run their own unique courses, depending on the healthcare climate of each state."

Since passage of the Hyde amendment, 16 states - by either court order or voluntary will - have agreed to pay for "medically necessary" abortions, those that go beyond the federal limits. In such cases, the state must pay the entire cost of the procedure.

But in states such as Texas, antiabortion advocates worry that figuring out what constitutes a medically necessary abortion is a slippery slope, one fraught with problems.

"Our concern is that the 'medically necessary' clause is so broad, it can mean virtually anything," says Courtney Facciponte with Texas Right to Life. In addition, she says, asking the public to pay for such a service is unthinkable to many.

"If we lose this case, Texans will be forced to pay for abortions, even if they believe they are immoral and wrong," she says.

Currently, the federal government pays about 60 percent of the Medicaid costs in Texas. Last year, the state funded about a dozen abortions. Each one costs around $325, but that can triple as the pregnancy goes into a later term.

The higher costs become a particular hardship for women trying to pull the money together on their own. "As the pregnancy advances, the costs go up and up," says Ron Fitzsimmons, head of the National Coalition of Abortion Providers in Alexandria, Va. "There is a disproportionate number of poor women who are having later abortions because it takes them longer to get the money."

So far, abortion-rights groups have been fighting - and winning - these types of funding cases across the country. The Center for Reproductive Law and Policy in New York has been involved in 20 such cases over the years and has won 14.

It's perhaps no coincidence that abortion-rights groups are targeting state courts with their legal briefs. Paul Linton, a Chicago lawyer who specializes in abortion issues, notes that the more decisions the groups can get on the books, the harder it will be to reverse them. The rulings may be more favorable in some state courts, too.

"Their long-term objective is to create an independent source of abortion rights in the event that the US Supreme Court overturns Roe v. Wade," he says.