A Minnesota Court Decision Shows Every Woman Has the Right to Choose

Robin Marty

Healthcare reform is leading to an increase in the number low-income women who will struggle to get abortions.  Luckily, in Minnesota we have already fixed that problem.

In the aftermath of healthcare reform, one thing became abundantly clear – anti-choice legislators had decided to use every bit of political muscle they had to exploit the lightening rod of abortion in health insurance plans.  Within a matter of months, multiple states passed laws stating that any insurance plan paid in any part by taxpayers dollars could not be used to pay for abortion, in preparation for potential government insurance exchanges.  According to the latest Guttmacher report on restricting insurance coverage of abortion, this brings to 12 the total number of states that do not allow taxpayer funding.  Two states have gone further, stating that insurance with taxpayer funding could not pay for an abortion even in the case of rape or incest.  And five states go even beyond that line, stating that any insurance purchased in the state could not be used to pay for abortions – even if those plans were paid for entirely by private, individual money.

But to those of us who favor reproductive freedom and live in Minnesota, the whole debate seems pretty pointless.  We established long ago in our state that abortion is a right that should be accessible to all women, not just those who have the money to be able to afford it.  And that right has been affirmed by our state Supreme Court, thanks to the ruling of Doe vs. Gomez.

In 1995, the Minnesota State Supreme Court ruled via Doe vs. Gomez that the right to choose is in fact a fundamental right for women in the state of Minnesota.   Based on this fact, the ruling states that the state cannot selectively cover pregnancy-related services by funding prenatal care and childbirth expenses while refusing to cover abortion services, as such support would be an implicit denial of a woman’s right to chose to carry a child to term or not.  Not funding abortion services then adds “undue financial constraints” to for low-income women, eliminating choice.  Hence, any law that would be passed in the state that would eliminate such abortion funding would necessarily be ruled unconstitutional.

Minnesota isn’t in fact the only state that has passed legislation or had court cases ensuring that low–income women have access to abortion, either via a form of Medicaid or other state funding.  Massachusetts, New York, California, Oregon and Washington are also states that do the same, with abortion coverage rules that are actually considered more lenient than federal laws governed by the Hyde Amendment. But what states pass, legislators can sometimes manage to take away.  According to a Planned Parenthood fact sheet on the court case, Doe vs. Gomez was used as a precedent for abortion funding in Arizona, Florida, and Texas.  Sadly, in Arizona this year public funding for abortion was restricted to helping women who needed abortions in cases of rape, incest or life endangerment, something Texas had already changed as well.  Florida is attempting the same, with the law passed but still not yet signed by Governor Crist.   

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Established constitutional rule doesn’t mean that anti-choicers in Minnesota are letting the issue stay settled, either.  Since 2002, some version of the “Taxpayer’s Protection Act,” a bill seeking to remove all taxpayer funds from abortion, has been introduced in the state legislature.   Why keep trying to introduce a law that has already been declared unconstitutional by the state Supreme Court?  Simple – providing a direct challenge to Doe V. Gomez would force the Minnesota Supreme Court to rule on an abortion case, providing anti-choice activists with a scorecard of judges to begin targeting during re-election. And, after eight years of the highly conservative, right-leaning “family-values” governing of Tim Pawlenty, the Supreme Court has shifted radically to the side of social conservatives, with over half of the court being appointed by him during his terms.  An anti-abortion case would be an excellent way to rally their base and test out these newer justices and see if they really earned their conservative stripes.

Still, the likelihood of Doe vs. Gomez being overturned seems fairly slim, regardless of the attacks that have occurred.  Should it somehow happen, though, it would be devastating not just for low-income women in Minnesota who need access to abortion and cannot afford the procedure on their own, but to the many women in other states who are assisted with funds that do not have to be spent in Minnesota because of the case precedent.  According to Megan Peterson of National Network of Abortion Funds, “Doe vs Gomez was able to provide funding women outside of Minnesota once Minnesota women on Medicaid had coverage for abortion.  It freed up a lot of their resources to help women in other states.” 

“It would devastate the Hersey [Abortion Assistance] Fund to have Doe vs. Gomez overturned,” Peterson explained.  “As we know from other states where Medicaid doesn’t cover abortions, it basically means that women don’t get the abortions they need or want, or they go to great lengths and endure significant hardship in order to come up with the money.  In turn, abortion funds in non-Medicaid states basically never help outside of their states, and sometimes even outside of their local community, because the need always so significantly outstrips their fundraising abilities.  We really depend on Funds in Medicaid states to help nationally and regionally.”

Inherently, banning taxpayer funding for abortion isn’t even really about reducing abortions, or even about trying to save money.   As the anti-choice movement brags:

“In other words, such restrictions force the public to at least subconsciously confront questions such as ‘If abortion is O.K., then why won’t the government fund it?’” 

The purpose of eliminating funds is to continue the campaign to stigmatize abortion as something that no decent person would ever approve of, shaming the women who need it and cutting off access to a woman’s ability to decide when, and how she chooses to start a family.  For those of us in Minnesota, and other states that allow Medicaid funding for abortion, that decision is left to every woman, not just those who can afford to make it.

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