On Wednesday, Nov. 28, the Texas Supreme Court heard oral arguments on Bost v. Low-Income Women of Texas, widely considered the state’s most significant abortion-related case in the post-Roe v. Wade era. The Court’s nine judges — all Republicans — will determine whether Medicaid recipients who seek “medically necessary” abortions will get state funding. The current Texas Medical Assistance Program adheres to federal guidelines and limits eligibility to victims of rape, incest, or immediate danger to the woman’s life.
Contending that current rules discriminate against poor women for whom pregnancy might pose long-term health concerns, reproductive rights advocates the Center for Reproductive Law and Policy filed the suit in 1993 on behalf of three state abortion doctors and three abortion-providing facilities (including Reproductive Health Services of Austin). Last December, the Texas Third Court of Appeals decided 2-1 that current Medicaid procedure violates the Texas Equal Rights Amendment by singling out abortion as the only medical service requiring recipients to show something more than mere necessity — “even when it is medically necessary for the patient’s health.”
The state, represented by Deputy Attorney General Jeffrey Boyd, appealed. An amicus brief organized by Greater Austin Right to Life and signed by 66 state legislators declares flatly, “Restricting abortion does not discriminate against women.” Although Roe v. Wade legally entitles all women the right to abortion, the brief argues that the ERA does not require the state to ensure that poor women have access to that right.
Catherine Mauzy, counsel for Low-Income Women, calls the state’s argument unsound. “They have to come up with all of these artificial subcategories to try to justify their argument,” she said. “The issue is ‘women and men,’ not ‘women who are pregnant, and women who aren’t.’ If they simply follow established case law, they lose.”
Supporters of the state, including GARTL, say it’s the Legislature’s decision whether to provide state funds for health care. “I have yet to find anywhere that the people bringing this lawsuit say that abortion on demand would not be covered,” said GARTL Executive Director Joe Pojman. To arrive at this conclusion, GARTL defines “medically necessary” abortions as “elective.” If Low-Income Women emerge victorious, the right-to-life organization argues, Medicaid funding for abortions would be “unlimited” — applicable to “second, third, and fourth repeat abortions,” as well as abortions for birth control, gender selection, “for illness when abortion is not necessary or indicated,” for minors without parental consent, and “partial-birth” abortions.
GARTL points to a November 2001 Scripps Howard poll showing that 69% of Texans oppose funding abortion for “any woman who wants it and can’t afford to pay.” That’s misleading, says Sarah Wheat, public affairs director of the Texas Abortion and Reproductive Rights Action League. “The right-to-lifers say [‘medically necessary’] means anything, like, ‘Oh, I have a headache, I think I’ll get the Texas taxpayers to get me an abortion.’ … I don’t see the slightest bit of concern about the health of those women from them.”
The defendants aren’t asking the state to fund abortions for everyone, she explains, but for Medicaid recipients whose long-term health care might be jeopardized by an unexpected pregnancy — for instance, diabetics and women undergoing complicated cancer treatment. Since regulations exist for other medical procedures, guidelines clarifying the meaning of “medically necessary” could be adopted. Their opponents, they say, overlook this option.
In Texas, the average first-trimester abortion costs over $300. Based on data from New York and Minnesota, two states whose Medicaid programs cover abortions, GARTL estimates that annual numbers of abortions billed to Medicaid in Texas would soar from 11 (as reported last year) to between 13,700 and 27,400 — costing taxpayers between $4 million and $8 million. Pointing to differences in population, demographics, and numbers of Medicaid recipients, Mauzy asserts GARTL’s numbers are not applicable to Texas. “They’re assuming that one-quarter of women will want an abortion, and that their doctors will all say it’s ‘medically necessary,'” she said.
As the Court of Appeals acknowledged last December, “even a normal pregnancy strains a woman’s health.” In an amicus brief supporting Low-Income Women, nearly 60 reproductive rights groups and health-care providers across the country contend that unexpected pregnancies (including those caused by faulty contraception) can interfere with mothers’ ability to care for themselves and their family, cause physical, emotional, or financial stress, preempt job training or education, and aggravate pre-existing medical conditions. The U.S. Dept. of Health and Human Services reports that poor women suffer from greater health problems than more affluent women, and numerous studies show poverty precludes between one-quarter and one-third of low-income women from getting abortions. Delaying the procedure only exacerbates the costs and the health risks, states the brief.
But GARTL responds that the state’s failure to fund abortion “does not ‘coerce’ indigent, pregnant women into carrying to term” because many poor women still obtain abortions. The state argues that it can legally exercise a preference for childbirth over abortion when allocating public funds because laws dating from the pre-Roe v. Wade era — when abortion was a criminal offense — remain on the books. Mauzy says this is tantamount to re-arguing Roe v. Wade. “They’ve never accepted it,” she said.
How the Texas Supreme Court will rule could depend on political ideology and the personal aspirations of the justices, five of whom face re-election next year. “This court has said again and again it believes in following precedent,” Mauzy said. “That helps us, because the case law is clear that under the ERA this statute is unconstitutional.”
This article appears in December 7 • 2001.