Legislative Memo: Medicaid Funding of Abortion

For more than thirty years, since the state Legislature enacted landmark legislation legalizing abortion, New York has protected the reproductive freedom of the state’s poorest women. The Legislature has long recognized that state Medicaid funding for abortion is essential if reproductive choice is to be a reality for low-income women.

Without Medicaid coverage, abortion would be out of reach for the hundreds of thousands of women who rely on Medicaid to obtain necessary health care. To maintain its covenant with the women of New York, the Legislature must reject S.4877, which would ban Medicaid funding for abortions.

The state should not use its budgetary authority to intrude upon a woman’s right to decide whether to bear children. This, however, is the clear intent of this legislation. S.4877 is blatantly coercive; and its coercive effect poses a grave threat to women’s health. The bill provides that should a woman choose to carry a pregnancy to term, Medicaid would provide her assistance for necessary medical care.

But if the same woman chooses to end her pregnancy, Medicaid would not provide coverage for her abortion, even if continuing the pregnancy would harm her health. With such a ban, New York would also turn its back on women who need abortion due to cancer, diabetes, heart conditions, or other threats to their health.

They would be denied coverage. Only if a woman would otherwise die, or if her pregnancy results from rape or incest, would an abortion be covered.

The experience of states that exclude Medicaid funding for abortion demonstrates the severe harm that would follow from such a policy. Denied coverage, women on Medicaid have little choice but to use money they need for food, rent, clothing, or other necessities to pay for an abortion. Many Medicaid-eligible women delay their abortions, increasing their medical risks, while they scrape funds together.

Other women have been forced to carry their pregnancies to term or to seek illegal abortions. Studies have shown that from 18 to 35 percent of Medicaid-eligible women who want abortions, but who live in states that do not provide funding for abortion, have been forced to carry their pregnancies to term.

Moreover, a statute that penalizes a woman’s exercise of her right to choose by denying her funding for an abortion would violate fundamental rights protected by the New York State Constitution. New York’s Court of Appeals has held that the state Constitution provides greater protections than the federal Constitution as regards the right of bodily autonomy. Rivers v. Katz, 67 N.Y.2d 485 (1986).

The fundamental right of reproductive choice inherent in the state Constitution’s due process clause has been interpreted to be at least as extensive as the federal right. Hope v. Perales, 83 N.Y.2d 563 (1994). A scheme denying Medicaid coverage for abortion would violate this right. In addition, Article XVII of the state Constitution imposes a special responsibility on the State to provide “aid, care and support of the needy.”

The Court of Appeals has also made clear that the Legislature may not classify a group as needy but then exclude them from coverage based on criteria having nothing to do with need. Aliessa v. Novello, 96 N.Y.2d 426 (2001), Tucker v. Toia, 43 N.Y.2d 1 (1977). This bill would create an exclusion solely based on a woman’s choice to terminate her pregnancy and would thus be unconstitutional.

For the foregoing reasons, the NYCLU strongly urges members of the Senate to reject S.4877.