The federal government must immediately resume financing abortions for poor women, the Supreme Court said yesterday.
The justices agreed to review a New York judge's ruling that a federal law known as the Hyde Amendment, which sharply restricts government financing of abortions, is unconstitutional. At the same time, they refused to block implementation of the New York order while they ponder the case. Thus, funds should flow nationwide under the Medicaid program at least until spring.
Late yesterday, the Department of Health, Education and Welfare issued orders that payments be resumed for eligible abortions.
Two federal courts, one in New York and one in Chicago, have held that the current severe restrictions on funding are a denial of constitutional rights. Antiabortion activists have argued that while abortions were made legal by the Supreme Court seven years ago, they were not and cannot be constitutionally guaranteed to everyone who seeks them.
The courts had already agreed to consider the Chicago case. Yesterday, it agreed to hear the New York case along with it some time after April 10.
In the meantime, however, HEW must provide Medicaid funds, which are matched by state funds, for eligible abortions.
The immediate impact on the majority of poor women is limited. Most live in the 26 states that have been providing abortion funding, either by choice or under court order. Twenty three sisters, including Maryland, which refused to pick up the costs following enactment of the Hyde Amendment, will now have to make financed abortions available, however.
Arizona does not participate in the Medicaid program at all.
While the number of women receiving government-financed abortions may not increase that much because of yesterday's action, the impact on the federal treasury could be substantial.
Accoridng to HEW figures, 470,000 abortions could be financed over the next year with $88 million in federal money.
Yesterday's action stemmed from an order issued last month by U.S. District Court Judge John Dooling in New York City. After 13 months of deliberation, Dooling ruled that the fund cutoff was unconstitutional and ordered HEW to restore the money.
The government sought a stay of Dooling's order pending disposition of the New York case and the Chicago case.The Supreme Court, with dissents by Chief Justice Warren Burger and Justices Lewis Powell and William Rehnquist, denied the stay yesterday, and agreed to hear the case on an expedited appeal, skipping the normal review by the 2nd U.S. Circuit Court of Appeals.
The current version of the Hyde Amendment, named for its sponsor, Rep. Henry J. Hyde (R-Ill.), permits federal payment for an abortion only in cases where a woman's life would be jeopardized without it or where a pregnancy has resulted from rape or incest that has been promptly reported by the victim.
The number of women who meet the criteria is minuscule -- about 2,000 or 3,000 per year.
Dooling ruled that the money should be available for all abortions for poor women that are medically necessary "in the professional judgement of the pregnant woman's attending physician, exercised in light of all factors, physical, emotional, psychological, familial and the woman's age, relevant to the health-related well-being of the pregnant woman."
The defination, most observers feel, was a complete victory for "pro-choice" activists, since it essentially allows financed abortions for any reason.
To do otherwise, Dooling said, would abridge the "most fundamental of rights" of liberty guaranteed under the Fifth Amendment and of religious freedom, under the First Amendment.
The Chicago decision, by U.S. District Court Judge John Grady, was narrower in its issues and in its order, which applied only to Illinois. Grady ruled that neither the Illinois legislature nor the Congress had any "rational" reason to differentiate abortions from other medically necessary procedures for which funding may be provided and that such a reason would be necessary to abridge a woman's right to the financial abortion.
That case also went directly from the District Court to the Supreme Court, which agreed in December to hear arguments on it.