Maine's Supreme Court Hears Challenge To MaineCare Abortion Coverage Ban

May 16, 2018

MaineCare's ban on abortion coverage was challenged in the state Supreme Court Wednesday.

The American Civil Liberties Union (ACLU) of Maine first filed the lawsuit about three years ago on the grounds that the policy is unconstitutional. However, the defendant in the case, Maine's Commissioner of the Department of Health and Human Services, says the policy is consistent with federal law.

The ACLU of Maine filed the suit on behalf of three abortion providers: the Mabel Wadsworth Center, Maine Family Planning and Planned Parenthood of Northern New England. The core question in the case is whether or not a state funding decision restricts a fundamental right.

Zach Heiden, the legal director for the ACLU, told the Maine Supreme Judicial Court that the policy that blocks state funding for abortions under the state’s Medicaid program, known as MaineCare, violates a woman's fundamental right.

"A woman who is pregnant is going to need medical care,” Heiden said. “And she has before her two constitutionally protected, mutually exclusive options. The state funds one of those options completely. But for the other option, it tells women they're on their own."

That, Heiden told the justices, is coercive and discriminatory to lower-income women.

"Placing a thumb on the scale of a highly personal decision, one that should be made without any state interference," he said.

For Heiden, the policy is a clear violation of Maine law that says the state will not interfere with a woman's reproductive decisions.

Justice Ellen Gorman challenged that assertion.

"If it is so clear, Mr. Heiden, as you suggest, how is it that these regulations have stood in the face of multiple legislative events, and have not been changed."

Heiden reiterated that the law is clear, which explains why the legislature hasn't taken action. That's also why, Heiden said, the issue is now in the hands of the Maine Supreme Court to make sure the law is enforced.

Susan Herman, the attorney representing the defendant in the case, Maine's Commissioner of the Department of Health and Human Services, said the state's policy is within the law.

"It was properly promulgated to achieve consistency and conformity with federal Medicaid funding restrictions," said Herman.

Those restrictions only allow federal funding for abortions in cases of rape, incest or when the mother's life is threatened. It's under what's called the Hyde Amendment.

Justice Joseph Jabar pressed Herman on how broadly those restrictions apply, “the Hyde amendment applies to federal funds and not to state funds, correct?”

“It applies to Medicaid funds, which is a combination,” Herman responded.

“But it doesn't apply to state funds, correct?” asked Jabar.

“Correct,” said Herman.

Jabar pointed out that about 18 other states have laws that specifically say state funding will not be used to pay for abortions, but Maine law does not. Herman responded that state law says only that it will not restrict a woman's private decision to have an abortion,"it does not say the state shall pay for such abortions."

It's an argument that a lower court sided with last October. Now, Maine's Supreme Court Justices will decide whether the MaineCare restriction on abortion coverage is constitutional.

This story originally ran at 12:36 p.m.