A federal judge in Alexandria yesterday ordered the state of Virginia to reimburse indigent women for "necessary, medical, therapeutic abortions" under the state's Medicaid program.
Although the Virginia legislature voted March 9 to cut off payments for abortions unless the mother's life was in danger, U.S. District Court Judge Albert V. Bryan Jr. said that women who need therapeutic abortions would be irreparably harmed if he did not order the state to again pay for them. State financing of the Medicaid abortions ended April 1.
Bryan, seemingly eager to rule in the case, set a hearing for May 16 on the dispute and said he issued the order against Virginia because "there is a substantial likelihood that the plaintiff will prevail on the merits" of the case.
The class action suit covering all Virginia women seeking state-financed abortions was brought by a 19-year-old Virginia Beach woman, named in the suit only as Janet Doe, who was six weeks pregnant as of March 31. At that time Doe unsuccessfully sought to have a Medicaid-paid abortion at a Norfolk clinic, but officials there told her they would not be able to reimburse her because of the Virginia law that became effective April 1. She later had the abortion anyway, even though the state refused to pay for it.
The Virginia abortion law, amended on March 20 by the state health commissioner, says that Medicaid will provide "payment for elective abortions only when the physician has found and certified that on the basis of his/her professional judgement the life of the mother would be endangered if the fetus were carried to term."
Doe contends in her suit that the policy abridges her rights of privacy and liberty under the 14th Amendment and that it unlawfully discriminates against Medicaid-eligible women seeking abortions for health reasons and not just to save their lives.
In June 1977, the U.S. Supreme Court ruled that states could decide whether they would reimburse indigent women for nontherapeutic abortions. Since then, 36 states have enacted laws similar to Virginia's, while 14 states, including Maryland, and theDistrict of Columbia reimburse indigent women for all or most abortions, according to Ellen Leitzer, a Washington ACLU member who helps handle abortion cases. Leitzer saids suits challenging three state laws similar to Virginia's are now pending in courts.
Doe, an unmarried mother with one child, said in her complaint, filed before her abortion, that she "will experience severe emotional strain if forced to continue her pregnancy to term. In addition she will most likely be subjected to a difficult labor and delivery, having had medical complications with the birth of her first child."
The case seems to hinge on what is considered a therapeutic abortion and whether abortions of pregnancies that don't immediately endanger the mother's life are medically necessary procedures.
Bryan said the issue is a "therapeutic medical treatment, abortion or not. While it may be an abortion, it's still medical treatment."
Title 19 of the Social Security Act states that all Medicaid-eligible persons having medically necessary procedures will be reimbursed, according to Leitzer.
Assistant State Attorney General Robert A. Adams argued in court that the intent of the policy is partly "to get rid of birth-control abortions." Adams said since Doe has had an abortion other indigent women should be able to find ways to solve their problems without Medicaid assistance.
"I was very surprised to find (Doe) has had an abortion," Adams said. Doe "may not have irreparable harm. If she did have an abortion apparently there are ways for indigents to have abortions.
Adams also said that no other women have challenged the policy. "So who was harmed?" Adams asked rhetorically. "No one was harmed."
Lynn Miller, Doe's attorney, argued that the state would not be harmed by overturning the policy, because in part "It's cheaper for the state to fund abortions than full-term delivery care after the child is born."
During the year ending last June 30, financed abortions costing a total of $450,000 at a cost of about $125 per abortion, according to Doe's complaint. About 3,600 abortions were paid for by Medicaid in the state last year.
During the hearing, two antiabortion protesters present in court for another case whispered disparaging remarks about statements made by Bryan and the attorneys.
Bryan's decision "is in direct defiance of the will of the people," Mary Anne Kreitzer said outside the courtroom. "They're treating babies like pieces of garbage. I personally will not pay taxes to kill babies."
Bridgette Kenney, another antiabortion protester, began weeping in a corridor outside the courtroom after Bryan's decision.
"They kill people because it's cheaper to kill than render any assistance," Kreitzer said.
A spokesman for Gov. John N. Dalton said the governor had no comment on the case, but that the state will comply with Bryan's order.
In another case yesterday, Bryan dismissed a counterclaim filed by Kreitzer and 10 other antiabortion protesters who have been prohibited indefinitely by another Bryan order from demonstrating on the property of the Northern Virginia Women's Medical Center in Fairfax County. The center first sued the protesters to prevent them from demonstrating at the clinic whereabortions are performed.