Maine high court hears abortion funding arguments

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Maine Chief Justice Leigh I. Saufley asks a question during arguments Wednesday on whether the Department of Health and Human Services is violating women’s constitutional rights by refusing to pay for abortions through the state’s Medicaid program. The case is before the Maine Supreme Judicial Court. (Joe Phelan/Portland Press Herald)

AUGUSTA — Maine’s highest court heard arguments Wednesday on whether the Department of Health and Human Services is violating women’s constitutional rights by refusing to pay for abortions through the state’s Medicaid program.

Justices on Maine’s Supreme Judicial Court questioned attorneys for the American Civil Liberties Union of Maine and the state about restrictions on federal Medicaid funding and whether DHHS has taken the proper steps to limit funding for abortion services. In urging the Law Court to overturn a lower court ruling, an ACLU attorney argued that the LePage administration is “placing a thumb on the scale on a highly personal decision” by covering the costs of prenatal care and childbirth for Medicaid recipients but not covering an abortion.

“The department’s prohibition on abortion coverage provides no benefit to the state,” Zachary Heiden, ACLU of Maine’s legal director, told the justices during a 30-minute hearing at the Capital Judicial Center. “It is not required by any federal or state law and it violates Maine’s statute and Maine’s Constitution. It is the public policy of the state of Maine not to restrict a woman’s private decision to terminate a pregnancy before viability, yet the regulation does just that by using state funds to coerce women to continue a pregnancy.”

ACLU joined with three abortion and health care providers — Planned Parenthood of Maine, Mabel Wadsworth Center and Maine Family Planning — in filing the lawsuit in 2015, alleging that low-income women are harmed by the state’s prohibition on paying for abortions.

But a deputy attorney general representing DHHS Commissioner Ricker Hamilton said there is nothing in Maine’s law or constitution requiring the state to pay for abortions for recipients of Medicaid, which is known as MaineCare in the state. Additionally, Deputy Attorney General Susan Herman said a 1980 U.S. Supreme Court ruling upholding the so-called “Hyde Amendment” restricting federal funds for abortion held that “a woman’s fundamental right to choose an abortion does not carry with it the right to a government-paid abortion.”

The Hyde Amendment adopted by Congress declared that federal Medicaid funds are only available to cover abortions when a pregnancy threatens the life of the mother or in cases of rape or incest. Thirty-two states plus Washington, D.C., only allow Medicaid funds to be used under such cases, while 17 states allow funds to pay for some or most abortions for Medicaid-eligible women, according to an analysis by the Guttmacher Institute, which closely tracks abortion policy and trends. In 2014, there were roughly 2,200 abortions performed in Maine and the abortion rate for women of reproductive age declined 4 percent between 2011 and 2014, the Guttmacher Institute reported.

In their questioning of Herman, justices pointed out that — despite the federal Hyde Amendment — states are free to use their resources to pay for abortions. And while Maine DHHS adopted a rule prohibiting the state’s Medicaid contribution from being used for abortions, the Legislature never passed a law specifically preventing such expenditures.

“In a lot of the states, the legislature says that — consistent with the Hyde Amendment — that this state will not authorize the payment of state funds for abortions,” Justice Joseph Jabar said. “Could you point to any law in the State of Maine comparable to that, that says state funds will not be used to fund abortions?”

Herman responded that DHHS opted to adopt the policy in regulations rather than through legislation. Herman also argued that the department’s position is further supported by the fact that the Maine Legislature rejected two bills — in 1979 and 2007 — that sought to earmark state funding for abortions.

Justices quickly poked holes in that argument, however, saying that lawmakers’ inaction cannot be used to demonstrate “legislative intent,” which is the guidepost courts often use in legal battles over state law.

“They did not decide not to use state funding — other states have done that,” Chief Justice Leigh Saufley told Herman. “There has been no legislative action that says no state funding shall be used.”

Saufley also pointed out that Maine has a list of services that DHHS provides to MaineCare recipients using solely state funds.

Justices also pressed Heiden on his premise that the funding restrictions are a clear violation of Maine’s equal-protection rights that poses an “undue burden” on low-income pregnant women. Justices also asked Heiden why the rules have been on the books for so long if, as he suggested, the funding restrictions clearly violate Maine’s law saying the state should not interfere with a woman’s right to an abortion.

“Is it more appropriate for the Legislature to respond when it is an issue of policy that is being contravened by the executive branch?” Justice Andrew Mead asked.

Afterward, Heiden said he was pleased with the vigorous questioning but did not presuppose any outcome.

“The court has clearly given this matter a lot of thought, which we appreciate,” Heiden said. “We brought this case 2½ years ago and to have the court give this issue such attention is important to our clients.”

Herman declined to comment after the hearing.

More than 260,000 state residents were enrolled in MaineCare as of last August, although a breakdown of those statistics by age and gender was not immediately available Wednesday.

The executive director of the Mabel Wadsworth Center in Bangor, which provides abortions and a broad range of health care services to women, did not have numbers for her facility. But Andrea Irwin said it is common for low-income pregnant women to call seeking advice or care.

“We see every day women who come to our facility in Bangor that are struggling to make this decision because of financial reasons,” Irwin said. “And because we are a clinic that provides both abortion care and prenatal care, it is particularly discriminatory for us to say, ‘Well, the state will pay for your pregnancy to continue and you can keep seeing us for that prenatal care. But, unfortunately, if you decide to have an abortion, there is no Medicaid funding for you.’ That is an unconstitutional violation and it prevents women from having the right to make a decision that is best for them and their families.”

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