Abortion: Medicaid Not Responsible
Ruling says state shouldn't pay for poor women's procedures even if 'medically necessary'
By Julie Kay
Originally published in the Miami Daily Business Review, February 25, 2002
The Florida Supreme Court might be considered by many—including the Florida Legislature—to be a left-leaning court. But an abortion ruling it made last year would seem to indicate otherwise. The court ruled that Medicaid should not have to pay for poor women's abortions even if those procedures are "medically necessary," meaning the woman has pregnancy complications or a health condition that could worsen if she remained pregnant.
Medicaid policy requires that states at least pay for abortions in cases where the pregnancy endangers the life of the woman or is the result of rape or incest.
"The right of privacy in the Florida Constitution protects a woman's right to choose an abortion … (It) does not create an entitlement to the financial resources to avail herself of this choice," Justice Major Harding wrote for the court.
The ruling was a defeat for abortion rights advocates, who sought to ensure that indigent women had equal access to abortions.
"I was surprised by the ruling," said Bonnie Scott Jones, the New York-based Center for Reproductive Law and Policy's in-house lawyer who argued the case. Her co-counsel on the case was Larry Spalding of Florida's American Civil Liberties Union, based in Tallahassee.
"This will mean low-income women who are sick will either endure medical risks or have abortions later in their pregnancy, because it will take them time to come up with the money," Jones said. "It will be detrimental to their health."
The plaintiffs are not giving up, however, they've brought another lawsuit in state court, this time on the grounds of gender bias. Their new argument: If Medicaid pays for Viagra and vasectomies for men, it is only right that it pay for medically necessary abortions.
They may have better luck on that score, as at least one justice—Justice Leander Shaw—said he was troubled by the state's policy of covering reproductive services for men only. "It just doesn't meet the smell test that the state would fund Viagra for men, but for women a medically necessary abortion would not be covered," Shaw said at the time.
Shaw urged the court to address the gender bias issue at the time of its ruling, foreseeing a future lawsuit on those grounds, but the rest of the court chose to ignore the issue.
The ruling stemmed from a class-action lawsuit filed in 1993 in Palm Beach County against what was then the Health and Rehabilitation Services agency. After a reorganization of state government, HRS became part of the Agency for Health Care Administration.
The lawsuit was filed by the CRLP and the ACLU on behalf of Barbara Hunter and another woman identified only as Renee B.
Renee B. suffers from Graves Disease and had to stop taking her radio-iodine treatments during her pregnancy. Renee B. said her pregnancy caused her to hemorrhage and have high blood pressure. Other illnesses that could lead to medically necessary abortions include HIV, AIDS, diabetes and sickle cell anemia, according to the plaintiffs.
The CRLP estimates that 7,000 Medicaid-eligible women in Florida fit those criteria.
All of the named plaintiffs eventually received abortions using private funds.
The plaintiffs also argued that, except for abortion, Florida does not require a patient's medical condition to be life-threatening or caused by a crime to qualify for Medicaid coverage.
But the Agency for Health Care Administration countered that the state does not pay for all medically necessary procedures, citing organ transplants as examples.
Furthermore, Bill Roberts, acting general counsel for the AHCA, argued that the constitution should not require the state to pay for the exercise of a constitutional right—in other words, just because the constitution guarantees a right does not mean the government will foot the bill.
"That was the winning argument," said Roberts.
The state is strictly following federal guidelines and the Hyde Amendment, a longtime federal law that requires funding for abortions in cases of rape, incest and when the woman's life is in danger.
Some states, however, voluntarily fund beyond the Hyde Amendment. For example, Maryland pays for abortions for poor women if the continuation of the pregnancy could have serious or adverse effects on the woman's mental or physical health, or if the fetus has genetic defects.
In most cases where states have refused to pay for medically necessary abortions and litigation was brought, courts have sided with abortion rights advocates. Courts in 14 of 20 states in which lawsuits were filed have required those states to fund the abortions.
Other than Florida, the states of Arizona, Kentucky, Michigan, North Carolina and Pennsylvania have ruled against requiring Medicaid to pay for medically necessary abortions.
The plaintiffs cannot appeal the Florida Supreme Court ruling because no federal issues are in question.
Following the ruling, the CRLP, joined again by the ACLU, started over, filing a lawsuit in Leon County Circuit Court in July 2001 on behalf of new plaintiffs and seeking class-action status. This suit is being defended by the Florida Attorney General's office.
Roberts could not explain why Viagra and vasectomies are paid for by Medicaid and medically necessary abortions are not. "That's up to the Legislature," he said.
Jones is optimistic about the new lawsuit's chances.
"I think we have a good chance," she said. "This is blatant sex discrimination."
