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Abortion rights advocates make gains in state courts Groups select jurisdictions with privacy rights, ERAs


WASHINGTON -- Abortion rights advocates have slowly and quietly been winning victories in state courts to make abortions more widely available.

Bypassing what they see as an increasingly conservative federal judiciary, groups that favor the right to abortion have been focusing on state constitutions that often contain greater privacy rights than the U.S. Constitution or that have equal rights amendments.

They have racked up victories even as federal courts have limited the right to abortion established by the Supreme Court in Roe vs. Wade in 1973.

In the most recent decision, the New Mexico Supreme Court unanimously ruled in late November that the state's Equal Rights Amendment required the state to use Medicaid money to pay for abortions that are deemed medically necessary for poor women.

Lawsuits have also been filed seeking Medicaid financing of abortions in Alaska, Florida, Tennessee and Texas.

Catherine Weiss, director of the American Civil Liberties Union's Reproductive Freedom Project, which brought the New Mexico case, said abortion rights advocates were exploring the possibility of filing suits in two more states, which she declined to identify.

"We have started looking more at the state constitutions because the issues have been foreclosed by the decisions in the federal courts," said Louise Melling, associate director of the Reproductive Freedom Project.

New Mexico represents the latest in a line of victories for abortion rights advocates in state courts on the issue of public financing for abortion.

Parental notification

Advocates have also been successful in striking down so-called parental notification laws.

In the past two years, measures requiring that at least one parent be notified when a girl under 18 is seeking an abortion have been thrown out by courts in Montana, California and Alaska.

The decision last month in New Mexico made it the 16th state to pay for medically necessary abortions using state Medicaid money. Federal Medicaid money is not involved.

"These have been really significant decisions," said Janet Benshoof, president of the Center for Reproductive Law and Policy.

"Poor women have been just constantly squeezed in the whole issue of access to abortion."

Of those states now paying for abortions for poor women under the Medicaid program, 12 are doing so as a result of legal challenges brought by abortion rights advocates who cite provisions in state constitutions to back their case.

Four states -- Maryland, New York, Hawaii and Washington -- voluntarily pay for abortions under Medicaid.

Abortion rights advocates have lost legal challenges to compel North Carolina and Pennsylvania to pay for abortions for poor women.

Anti-abortion groups are making their own gains, winning bans in 28 states since 1995 of what they call "partial-birth abortion," enabling them to gain some political momentum.

But federal and state courts have blocked most of the bans, so they have prevented few abortions.

No political battles

In contrast, the victories for the abortion rights movement have come without huge political battles, but have resulted in government-paid abortions for 200,000 women a year, about 14 percent of the total number of abortions performed annually, according to a 1994 study by the Alan Guttmacher Institute, the most comprehensive one to date.

Lawyers for abortion rights organizations say they have chosen their states carefully, looking not only for states whose constitutions have broader privacy rights than the federal Constitution or that have an Equal Rights Amendment, but also for a state supreme court that has been willing to act independently of U.S. Supreme Court doctrine.

The idea is to compile a series of victories in a number of states that can then be used as precedents to convince the high courts in other states.

"The best legal argument to make is 'Look how many we've won and how few we've lost,' " said Weiss of the civil liberties union.

"So you certainly don't want to start racking up losses."

In New Mexico, the Supreme Court ruled that the state's Human Services Department had discriminated against women by denying money for abortions to poor women while paying for any medically necessary procedure for poor men.

'No comparable restriction'

"Under the department's regulations, there is no comparable restriction on medically necessary services relating to physical characteristics or conditions that are unique to men," Justice Pamela Minzner wrote.

"Indeed, we can find no provision in the department's regulations that disfavor any comparable, medically necessary procedure unique to the male anatomy."

Opponents of abortion denounced the New Mexico ruling, saying it was a sign of what could happen if a federal Equal Rights Amendment for women should be enacted.

"These five judges apparently see no moral distinction between removing an unborn child and removing an enlarged prostate gland," said Douglas Johnson, legislative director of the National Right to Life Committee.

"Once they've adopted that premise, it's hard to see how any limitations on abortion can survive, including abortions in the last stages of pregnancy."

Opponents also prevail

Abortion opponents note that they have prevailed in several state court cases.

For example, a ruling in Ohio upheld a state law requiring a waiting period for women seeking abortions and mandating that doctors tell women seeking to end a pregnancy about adoption agencies and show them pictures of a fetus at various stages of development.

"I don't see it as a trend," James Bopp, general counsel for the National Right to Life Committee, said of the state court decisions.

"It's been an effort that has sprung up in individual states periodically over the last 20 years."

Medicaid, the medical insurance program for low-income people, is financed jointly by the federal government and states.

Pub Date: 12/20/98

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