August 16, 2018
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Justices weigh whether Maine must pay for abortions for low-income women

Seth Koenig | File
Seth Koenig | File
Zachary Heiden, legal director of the ACLU of Maine, fields questions from reporters in this file photo. He is representing the Mabel Wadsworth Women's Health Center in Bangor, Planned Parenthood of Northern New England in Portland and Maine Family Planning in Augusta in a case that seeks to require MaineCare, the state's version of the Medicaid health insurance program for low-income residents, to cover abortion services.
By Judy Harrison, BDN Staff

The lack of state funding for abortion services coerces low-income Maine women to continue their pregnancies when they’d otherwise choose to terminate them, an attorney representing clinics that provide health care to women told the Maine Supreme Judicial Court on Wednesday.

The court heard arguments at the Capital Judicial Center in Augusta in the case that seeks to require MaineCare, the state’s version of the Medicaid health insurance program for low-income residents, to cover abortion services.

Nothing in state law requires that the state fund abortions, but a departmental rule forbids the use of MaineCare funds for the procedure, an attorney for the Maine Department of Health and Human Services told the state’s high court.

The justices peppered the lawyers with questions during oral arguments Wednesday but gave no indication of how they eventually would rule.

MaineCare 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, which is not codified in state law, mirrors federal law.

Medicaid is jointly funded by the state and federal governments.

The challenge to that rule began in November 2015, when the American Civil Liberties Union of Maine sued the Maine Department of Health and Human Services, which administers MaineCare, in Cumberland County Superior Court in an effort to get the justices to require MaineCare to pay for abortions, which lawmakers have refused to do since 1979.

The lawsuit was filed 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.

In October, Superior Court Justice Andrew Horton 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 appealed that decision to the state’s high court.

“The department’s prohibition on abortion coverage provides no benefit to the state,” Zachary Heiden, an ACLU of Maine attorney who represents the clinics, told the justices. “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. The state lacks a lawful purpose to justify it.”

Assistant Attorney General Susan Herman pointed out that the U.S. Supreme Court has found that “a woman’s fundamental right to choose an abortion does not carry with it the right to a government-paid abortion.”

Chief Justice Leigh I. Saufley described that issue as one of semantics.

“Can the failure to fund actually infringe on fundamental right?” she asked, pointing out that MaineCare does not pay for infertility treatments to help a woman conceive.

Heiden said that by funding medical costs of pregnancy and birth, but not abortion, the state was “placing its thumb on the scale [of justice]” in violation of Maine’s Reproductive Privacy Act, which is broader than Roe v. Wade, the case that made abortions legal across the country.

Justice Andrew Mead said the clinics were asking the court to do what lawmakers have so far refused to do, which is not the role of the judiciary.

Under questioning from the justices, Herman agreed that the state pays for other medical costs through MaineCare for which it is not reimbursed by Medicaid. But many of those services were authorized by the Legislature, unlike abortion.

“The Maine rule does not allow reimbursement for abortion to be consistent and to conform with federal Medicaid requirements,” she said.

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.

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.

Herman 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 also help pay for the procedure, she said.

“We talk to women every day who struggle to come up with the money to pay for abortion care,” Andrea Irwin, executive director of the Mabel Wadsworth Women’s Health Center, said Wednesday in a press release. “For Maine women living in rural areas who must travel long distances for care, the need is even greater. We do not accept a policy that treats pregnant women in Maine according to two different standards – a woman should be able to use her Medicaid coverage for the medical services she needs, including abortion.”

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

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