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Texas’ denial of funding for “medically necessary” abortions for low-income women in the Medicaid program violates the Texas Equal Rights Amendment, Austin’s 3rd Court of Appeals says. In a 2-1 decision on Dec. 7, the court held that the Medicaid funding scheme in Texas “affects an impermissible form of sex discrimination against pregnant women.” An abortion is deemed to be medically necessary if a doctor says a pregnancy may harm a woman’s physical or mental health but that it’s not immediately life-threatening. Justice Bea Ann Smith wrote the majority’s opinion in The Low-Income Women of Texas v. Eric M. Bost, in which she was joined by Justice Woodie Jones. Both are Democrats. A Republican on the court, Justice Lee Yeakel, said in a dissenting opinion that the ERA “does not provide an entitlement to funds or create an affirmative constitutional obligation to ensure that all persons have the financial resources to obtain medical services.” The case is expected to go to the Texas Supreme Court, where the nine Republican justices have locked horns over an abortion issue in the past. Heather Browne, spokeswoman for the Texas Office of the Attorney General, which represents the state in the case, says the decision is being reviewed. “In all likelihood, we will be filing an appeal with the Texas Supreme Court,” Browne says. Justices on the state’s highest civil court found themselves at odds with each other earlier this year when they began making decisions under the parental notification law that took effect on Jan. 1. Under that law, doctors who perform abortions must notify a minor’s parents unless the girl can convince a judge that the notification is not necessary. Disagreements over the parental notification cases led to sharply worded opinions in some instances. Justice Nathan Hecht, in dissenting opinions, accused the majority of ignoring the Legislature’s overriding intent that parents be informed before their minor daughters have abortions. Hecht said the majority’s actions trivialized the decision to have an abortion. In a concurring opinion, Justice Craig Enoch said that Hecht’s “explosive rhetoric” indicated he had “succumbed to passion.” Three Dallas physicians and three clinics — two in Dallas and one in Austin — that perform abortions filed the suit in 1993 on behalf of low-income women in Texas. The suit challenges restrictions that prohibit state funding for abortions. The 3rd Court reversed 126th District Court Judge Paul Davis’ 1997 decision to grant the state’s motion for summary judgment in the case. “This decision recognizes the constitutional protections for women in the state of Texas are greater than those afforded women under the U.S. Constitution,” says Catherine A. Mauzy, an Austin sole practitioner who serves as local counsel in the case. “It recognizes the state’s denying medically necessary abortions to low-income women when it provides all other medically necessary treatment to men and women is discriminatory, and it’s righted that wrong,” Mauzy says. Mauzy assisted the New York City-based Center for Reproductive Law and Policy, which filed the suit. She says the case has special meaning to her because her father, the late Oscar Mauzy, helped pass Texas’ ERA while in the state Senate. At issue in the 3rd Court’s ruling is the state money allocated to the Medicaid program, which provides medical services to the poor. Charles Stuart, spokesman for the Texas Commission on Health and Human Services, says the federal government provides about 60.5 percent of the funding and the state puts up the rest of the money. Each year since 1976, Congress has added an amendment to the Medicaid funding bill to prohibit federal funds from being spent for abortion services except in cases of rape or incest or when the pregnancy puts a woman’s life at risk. According to the court’s opinion, Texas limits Medicaid services to those for which the state can receive federal matching funds. The state therefore “tacitly adopts” the limits on funding abortions set by the Hyde Amendment, named for its original sponsor, U.S. Rep. Henry Hyde of Illinois, Smith wrote. Abortions are funded when a doctor determines the woman’s life is threatened by the pregnancy, but aren’t funded in other cases, absent rape or incest, in which the doctor finds an abortion is medically necessary and advisable because of health problems faced by the woman or the fetus, the opinion said. Smith noted in the opinion that a pregnancy carried to term may aggravate pre-existing medical conditions — such as diabetes, congenital heart disease, hypertension, renal failure and others — without immediately jeopardizing a woman’s life. Although a doctor might deem an abortion medically necessary for a woman with such a condition, the state would not pay for the procedure. “Only when the recommended treatment is abortion is the patient required to demonstrate something more than medical necessity,” the opinion said. Bonnie Scott Jones, staff attorney for the Center for Reproductive Law and Policy, says the ruling follows the national trend. “The vast majority of state courts that considered challenges like this ruled like the Texas court did,” Jones says. But Yeakel said in his dissent that there is no evidence that the Legislature set out to create a program that denies state funding for poor women’s abortions. The Legislature created the minimum program required to receive federal Medicaid funds, he wrote. Yeakel said a 1980 ruling by the U.S. Supreme Court in Harris v. McRae held that the federal Medicaid program does not compel a participating state to pay for abortions for which federal reimbursement is not unavailable under the Hyde Amendment. The majority’s holding means Texas cannot accept Congress’ largesse without appropriating additional funds, beyond those required by Congress, to expand the Medicaid program, he said. It is unknown what it would cost the state to provide medically necessary abortions for poor women if the 3rd Court’s ruling remains intact. Stuart says that as of November, 381,918 Texas women of childbearing age — from 12 to 50 years old — would be eligible for Medicaid funding for abortions. On average, an abortion costs $1,000, he says. Jones says an abortion costs less than providing care for an ailing woman until she gives birth.

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