Apparently, it’s in the best interest of the state of Texas that a poor woman suffering from diabetes go blind rather than have an abortion. That’s one implication of the Texas Supreme Court‘s 8-0 decision last week that the state is not constitutionally required to fund abortions for Medicaid recipients — even if the pregnancies could exacerbate illnesses or interfere with treatment for cancer, diabetes, and other serious ailments. The court reversed a 3rd Court of Appeals ruling that for the state to withhold funding for abortions deemed medically necessary by doctors, while routinely funding all medically necessary treatment for men, violates the state’s Equal Rights Amendment. In the Supreme Court’s judgment, the policy isn’t discriminatory because it “is not so much directed at women as a class as it is abortion as a medical treatment.”
Bonnie Scott Jones, staff attorney for the Center for Reproductive Law and Politics in New York City and counsel for those representing low-income women, says last week’s decision not only threatens the health and well-being of female Medicaid recipients but undercuts protections provided under the ERA. “Because the law on its face didn’t look like it was targeting women, we had to show it was purposeful discrimination,” she said. “The court acknowledged that [the law] was denying equal treatment to women … but they found there was no intent here to discriminate.” Since the federal government doesn’t pay for medically necessary abortions, the state said it won’t pay, either.
“We thought the ERA mandates Texas to provide equal rights,” Scott said. The court “can’t hide behind the fact that the federal government doesn’t pay for this — Texas has its own obligations.” (There is no federal ERA.) Since the case centered on an interpretation of a state mandate, it’s ineligible for consideration by the U.S. Supreme Court. Jones says that among states facing the medically necessary abortion question — often framed as a matter of right to privacy — three-fourths have sided with low-income women. Pennsylvania is the only other state to rule that denying funding does not discriminate against women, she said.
This article appears in January 10 • 2003.