Maine Supreme Judicial Court Credit: Miles Greenacre | Maine Judicial Branch

Pro-choice advocates are asking the Maine Supreme Judicial Court to do what lawmakers have refused to do since 1979 — require MaineCare to pay for abortions for low-income pregnant women.

MaineCare, the state’s version of the Medicaid health insurance program for low-income residents, pays for abortions only in cases of rape, incest or if continuing a pregnancy to term would endanger the mother’s life. The state rule mirrors federal law. Medicaid is jointly funded by the state and federal governments.

The American Civil Liberties Union of Maine in November 2015 sued the Maine Department of Health and Human Services, which administers MaineCare, in Cumberland County Superior Court on behalf of the state’s three abortion providers, the Mabel Wadsworth Women’s Health Center In Bangor, Planned Parenthood of Northern New England in Portland and Maine Family Planning in Augusta.

Superior Court Justice Andrew Horton in October granted summary judgment to DHHS, rejecting arguments that the ban on MaineCare reimbursement for abortions restricts a woman’s ability to exercise her right to terminate a pregnancy, which would violate state law and the Maine Constitution.

The ACLU of Maine appealed the decision to the state’s high court. Oral arguments in the case will be heard at 11:30 a.m. Wednesday at the Capital Judicial Center in Augusta.

Federal law allows the state to pay for abortions for low-income women but lawmakers or DHHS would have to create a separate fund, according to briefs filed in the appeal. Legislative efforts in Maine to create such a fund failed in 1979 and 2007.

Maine is one of 32 states with rules that follow federal regulations, according to the briefs. Of the 17 states that cover abortions for any reason, four provided funding by legislative action and 13, including Vermont and Massachusetts, were court-ordered.

By covering pregnancy-related care but not abortion services, MaineCare is restricting a woman’s right to choose and violating Maine’s Reproductive Privacy Act, the ACLU of Maine argued in its brief. The law “explicitly prohibits the state from restricting ‘a woman’s exercise of her private decision to terminate a pregnancy.’”

If a pregnant woman who qualifies for MaineCare gives up her right to an abortion, “the state will pay for all of the medical care related to her pregnancy,” the brief said. “In providing coverage for necessary medical care only if the woman continues her pregnancy, the ban thereby ‘restricts’ a woman’s exercise of her decision to terminate a pregnancy in violation or the Reproductive Privacy Act.”

The state in its brief argued that “the U.S. Supreme Court has made clear that a woman’s right to terminate a pregnancy does not include a ‘constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”

As a practical matter, the difficulties low-income women have in raising money to pay for an abortion, which costs between $500 and $1,000 in Maine depending on how far along the pregnancy is, delays care and increases the risks, the ACLU of Maine argued.

Deputy Attorney General Susan Hermon said in her brief that the plaintiffs had not cited a single person who had been unable to obtain an abortion due to lack of funds. Providers offer services based on income and private funds help pay for the procedure, she said.

So-called friend of the court briefs were filed by a group of law professors in support of the ACLU of Maine and by the Roman Catholic Diocese of Portland, the Maine Right to Life Committee and the Christian Civic League in support of DHHS.

There is no timetable under which the justices must issue their decision.

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