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In a decision that has been pending for more than a year, the Texas Supreme Court held on Dec. 31, 2002, that the Texas Medicaid program’s restrictions on funding for “medically necessary” abortions for poor women don’t violate rights guaranteed to them by the state constitution. The 8-0 decision in Bell v. Low Income Women of Texas, et al. reverses a 3rd Court of Appeals ruling in December 2000 that the denial of funding for a poor woman to have an abortion when her health — but not necessarily her life — might be threatened by a pregnancy violates the Texas Equal Rights Amendment. Under the Texas Medical Assistance Program implemented in 1967, the state limits the medical services it funds to those subsidized by the federal government. By doing so, the state incorporates the “Hyde Amendment,” a rider to the federal Medicaid statute that limits the availability of federal matching funds for abortions unless the pregnancy is the result of rape or incest or carrying a child endangers a woman’s life. “We hold that the TMAP’s abortion funding restrictions do not violate the Texas Constitution’s Equal Rights Amendment, Equal Protection Clause or right to privacy,” Texas Supreme Court Justice Harriet O’Neill said in the court’s opinion. The supreme court heard arguments in the case in November 2001. Three Dallas physicians and three clinics that perform abortions filed a suit in 1993 seeking to have TMAP’s funding restrictions on medically necessary abortions declared unconstitutional sex discrimination under the state Equal Rights Amendment and a violation of fundamental rights guaranteed by the Texas Constitution. In 1997, the 126th District Court in Austin granted the state’s motion for summary judgment in the case. On a 2-1 vote, Austin’s 3rd Court reversed the trial court’s decision. “Only when the recommended treatment is abortion is the patient required to demonstrate something more than medical necessity,” 3rd Court of Appeals Justice Bea Ann Smith said in the opinion in which she was joined by then-Justice Woodie Jones. Justice Lee Yeakel dissented. Greg Coleman, a former state solicitor general who petitioned the Texas Supreme Court to hear the case and wrote the briefs for it, says the 3rd Court of Appeals’ ruling that the state violates women’s rights by not paying for medically necessary abortions does not consider the reality of everything that happened. “To say you violated the constitution, you have to show discriminatory intent, not just disparate impact,” says Coleman, now a partner in the Austin office of Weil, Gotshal & Manges. Coleman says the federal government has offered matching funds to states that provide health services to indigents since 1965, when the Medicaid program was created. When the state decided in 1967 that it would participate in Medicaid, it said it would pay for everything for which it would be reimbursed by the federal government, he says. That funding restriction is codified in Texas Human Resources Code � 32.024(e). In 1973, the Supreme Court threw out the Texas law outlawing abortions in Roe v. Wade; that decision could not have been anticipated in 1967 when the state decided it would pay for only those services for which the federal government would pay, Coleman says. “The state wasn’t responsible for the funding arrangement that came out of the Hyde Amendment,” he says. NO SURPRISE Catherine A. Mauzy, an Austin solo who assisted the New York City-based Center for Reproductive Law and Policy, which filed the suit, says she is “disappointed, but not surprised” by the all-Republican Texas Supreme Court’s decision. Mauzy says the court acknowledged in the opinion that equality for low-income women is denied by this law. According to the opinion, the state provides virtually all medically necessary procedures to indigent men, yet it denies funding for abortions that are determined to be medically necessary. The court said in the opinion that because the state treats indigent women seeking abortions differently from all others, plaintiffs have established the first prong of its 1987 In Re McLean analysis — that equality under the law has been denied. Despite that fact, Mauzy says, the court finds constitutional a law that prefers childbearing over abortion, even if a pregnancy affects a woman’s ability to care for her child. However, the court also said in the opinion that the plaintiffs failed to demonstrate that the TMAP funding scheme reflects a purpose to discriminate because of sex. Peggy Romberg, executive director of the Women’s Health and Family Planning Association of Texas, says a medically necessary abortion is not the same as an elective abortion. A physician determines whether an abortion is medically necessary because of a woman’s medical needs, she says. “I think it’s criminally negligent of the state not to provide this care when [indigent women] need it,” Romberg says. Coleman says the state is not restricting anybody’s right to an abortion but is simply not “helping along” a woman who seeks an abortion. But Romberg says low-income women depend on the state for medical care and that denying funding for an abortion can deny the care some women need. “The people of Texas never put the right to abortion funding in their constitution,” says Christopher Maska, an Austin attorney who helped write an amicus brief filed on behalf of 66 members of the state Legislature. Maska says the supreme court found that if there is discrimination going on, the discrimination is against abortion. The court found it is legitimate for Texas to have a preference for childbirth over abortion, he says. Citing the U.S. Supreme Court’s 1980 decision in Harris v. McRae, the state’s high court concluded that the funding restriction leaves an indigent woman with at least the same range of choice regarding whether to have a medically necessary abortion as she would have had if the state didn’t subsidize any health care costs. The court also found that the restriction is rationally related to the Legislature’s underlying purpose in enacting the law and does not violate state equal protection rights. Texas Supreme Court Justice Deborah Hankinson did not participate in the decision.

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