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The Texas Supreme Court last week encountered the most controversial issue of its new term — state-funded abortion — which is sure to attract attention to the all-Republican, conservative court now in the midst of transition. The case, Eric M. Bost, Commissioner of Human Services v. Low Income Women of Texas, focuses on whether the state should pay for “medically necessary” abortions for poor women — situations where the woman’s health may be threatened by carrying a child to term but not necessarily her life. The case was filed in 1993 by three Dallas physicians and three clinics — two in Dallas and one in Austin — that perform abortions. The plaintiffs allege that Texas’ Medicaid funding system violates the Texas Equal Rights Amendment. While Texas appellate lawyers do not regard the case as groundbreaking, it nevertheless has them watching to see how the court reacts to one of the nation’s most volatile issues. In a courtroom packed with activists on both sides of the abortion issue, the questions that the justices asked during arguments Nov. 28 were almost antiseptic. Many concerned the structure and intent of the Medicaid funding law. Two of the court’s most conservative justices, Priscilla Owen and Nathan Hecht, remained mostly silent during the arguments. Under enabling funding legislation that Texas lawmakers originally passed in 1967, the federal government contributes about 60 percent to the state’s Medicaid funding system; Texas provides the rest. The plaintiffs in Bost alleged the state’s funding system is discriminatory because it follows the Hyde Amendment, an amendment to the federal Medicaid funding bill that Congress re-affirms every year since 1976 to prohibit federal funds from being spent for abortion services except in cases of rape, incest or when the pregnancy puts a mother’s life at risk. On Dec. 7, 2000, Austin’s 3rd Court of Appeals, by a 2-1 vote in Bost, decided that Texas’ Medicaid funding scheme violated the state ERA, and “effects an impermissible form of sex discrimination against pregnant women.” The state appealed. On Nov. 28, Bonnie Scott Jones, a staff attorney for the Center for Reproductive Law and Policy who represents the plaintiffs in the case, argued that the Medicaid funding legislation is discriminatory on its face, saying it violates the Texas ERA because it allows men to receive medically necessary treatment but prevents medically necessary treatment for pregnant women. Jeff Boyd, a deputy Texas attorney general for litigation, defended the funding statute, saying it’s neutral and meant only to provide a way for the state to receive federal matching funds; therefore, it is not meant to be discriminatory. “Under your analysis, we always have to go behind the statute” to find discrimination? Justice Wallace Jefferson asked Jones. “What I’m saying is that this statute prohibits medically necessary abortions on its face,” Jones said. “Not when it was written,” Wallace said. “Not when it was written, but it does now,” Jones replied. Justice James Baker cut to the meat of the matter: “How could we order the state to pay money?” “All the court would do is knock down an unconstitutional restriction to those funds,” Jones said. In an interview, Jones concedes it may be tough to convince the conservative court of the need for the state to pay for more abortions. “I certainly went in there feeling it was an uphill battle,” she says. “We do have nine Republican judges; it is a conservative state.” Boyd seems encouraged that the justices were concerned with whether the Medicaid funding statute was discriminatory on its face. “I think they were right on target to ask that question,” he says. IN THE SPOTLIGHT The court’s decision in the case will draw attention, especially to Owen, who was nominated by President George W. Bush to the 5th U.S. Circuit Court of Appeals earlier this year, and also to Jefferson and Justice Xavier Rodriguez, who were appointed to the court this year by Gov. Rick Perry but have yet to issue opinions. “Everyone now is wondering about the new people but also about all the new people to come,” says Wade Crosnoe, a partner and appellate lawyer in Dallas’ Thompson, Coe, Cousins & Irons. For several years the court has been dominated by moderate justices. But two of the moderates, Baker and Justice Deborah Hankinson, have announced they will not seek re-election. While this case may provide some indication of the voting patterns of the new justices, it will not be an indicator of how they’ll vote on broader issues, such as civil liability, two appellate lawyers say. “I personally think it will be interesting to see where they come down on this. But as a practitioner, it won’t tell me a lot,” Crosnoe says. Some court observers believe the case could affect Owen’s federal nomination. Owen’s name was submitted by the White House to the U.S. Senate Judiciary Committee May 9. She has not yet received a hearing with the committee. Owen’s vote on the case certainly will be considered by members of the committee, says David Keltner, a Fort Worth, Texas, appellate lawyer and former 2nd Court of Appeals justice. “I think her vote is going to speak louder than what her Senate testimony will be,” Keltner says. “Extremists on both sides of the [abortion] issue have used it as a litmus test, and they’ll use it instead of looking at the totality of a judge’s decisions. And that’s horribly unfortunate.”

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