1999 -NMSC- 5, New Mexico Right to Choose/NARAL v. Johnson, No. 23,239

• Docket Nº: No. 23,239
• Citation: 126 N.M. 788, 1999 NMSC 5, 975 P.2d 841
• Case Date: November 25, 1998
• Court: Supreme Court of New Mexico

Page 841

975 P.2d 841 1999 -NMSC- 5 NEW MEXICO RIGHT TO CHOOSE/NARAL, Abortion and Reproductive
Health Services, Planned Parenthood of the Rio Grande,
Curtis Boyd, M.D., Lucia Cies, M.D., Bruce Ferguson, M.D.,
and Lewis Koplik, M.D., Plaintiffs-Appellees and Cross-Appellants,
v.
William JOHNSON, Secretary of the New Mexico Human Services
Department, Defendant-Appellant and Cross-Appellee,
and
Eugene E. Klecan and Donald Schaurete,
Defendants-in-Intervention and Appellants and
Cross-Appellees. No. 23,239. Supreme Court of New Mexico. Nov. 25, 1998.

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Crider, Calvert & Bingham, P.C., Stevan Douglas Looney, Special Assistant Attorney General, Albuquerque, White, Koch, Kelly & McCarthy, P.A., M. Karen Kilgore, Santa Fe, Charles J. Milligan, General Counsel, New Mexico Human Services Department, Santa Fe, for Appellant and Cross-Appellee, William Johnson, Secretary of Human Services Department.

Eugene E. Klecan, Albuquerque, for Appellants and Cross-Appellees Eugene E. Klecan and Donald Schaurete.

Freedman, Boyd, Daniels, Peifer, Hollander, Guttman & Goldberg, J. Michele Guttmann, Albuquerque, Louise Melling, Catherine

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Weiss, Reproductive Freedom Project, American Civil Liberties Union Foundation, New York City, NY, Cynthia A. Fry, Albuquerque, Priscilla Smith, Catherine Albisa, Center for Reproductive Law & Policy, New York City, NY, Ann Scales, Albuquerque, Maureen Sanders, Albuquerque, Philip B. Davis, Albuquerque, Roger Evans, Legal Action for Reproductive Rights, Planned Parenthood Federation of America, New York City, NY, Carpenter & Chavez, Ltd., David J. Stout, Albuquerque, for Appellees and Cross-Appellants.

Paul Benjamin Linton, Acting General Counsel, Americans United for Life, Chicago, IL, for Amici Curiae Senator Duncan Scott, Representative Frank Bird, and Other Members of the New Mexico Legislature.

Bopp, Coleson & Bostrom, James Bopp, Jr., John K. Abegg, Terre Haute, for Amicus Curiae Right to Life Committee of New Mexico.

Hon. Tom Udall, Attorney General, Martha A. Daly, Elizabeth A. Glenn, Assistant Attorneys General, Santa Fe, for Amicus Curiae New Mexico Attorney General.

Michael B. Browde, Christian G. Fritz, Albuquerque, for Amici Curiae New Mexico League of Women Voters and New Mexico Legislators.

Martha F. Davis, Deborah A. Ellis, NOW Legal Defense and Education Fund, New York City, NY, Rondolyn R. O'Brien, Albuquerque, for Amici Curiae New Mexico Women's Bar Association and New Mexico Public Health Association.

OPINION

MINZNER, J.

¶1 This case concerns the authority of the Secretary of the New Mexico Human Services Department to restrict funding for medically necessary abortions under the State's Medicaid program. The Secretary appeals the district court's order permanently enjoining the Department from enforcing a rule that prohibits the use of state funds to pay for abortions for Medicaid-eligible women except when necessary to save the life of the mother, to end an ectopic pregnancy, or when the pregnancy resulted from rape or incest. Under the district court's order, the Department must allow the use of state funds to pay for abortions for Medicaid-eligible women when they are medically necessary. Under the court's order, an abortion is "medically necessary" when a pregnancy aggravates a pre-existing condition, makes treatment of a condition impossible, interferes with or hampers a diagnosis, or has a profound negative impact upon the physical or mental health of an individual.

¶2 The Court of Appeals certified the appeal to this Court because it presented a significant question of law under the New Mexico Constitution. Based on the independent grounds provided by the Equal Rights Amendment to Article II, Section 18 of our state constitution, we affirm the district court's order. New Mexico's Equal Rights Amendment requires a searching judicial inquiry to determine whether the Department's rule prohibiting state funding for certain medically necessary abortions denies Medicaid-eligible women equality of rights under law. We conclude from this inquiry that the Department's rule violates New Mexico's Equal Rights Amendment because it results in a program that does not apply the same standard of medical necessity to both men and women, and there is no compelling justification for treating men and women differently with respect to their medical needs in this instance. The district court did not exceed its authority in providing a remedy for this constitutional violation by enjoining the Department from enforcing its rule and requiring the Department to apply the standard of medical necessity in a nondiscriminatory manner in this case.

¶3 As an alternative basis for affirming the district court's order, Plaintiffs argue that a woman's right to reproductive choice is among the inherent rights guaranteed by Article II, Section 4 of the New Mexico Constitution, and that the Department's rule unlawfully infringes upon this right because it favors childbirth over abortion. It is unnecessary for us to reach the broader questions raised by this argument, however, because we decide this appeal based upon the Department's violation of the Equal Rights

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Amendment to Article II, Section 18 of our state constitution. Thus, our discussion is limited to the protection afforded by New Mexico's Equal Rights Amendment in the situation where the Department has elected to provide medical assistance to needy persons in this state.

I.

¶4 We begin with a review of the factual and legal developments that led to this appeal. For many years, both federal and state law have provided funding for persons to obtain medical assistance when they meet certain criteria based on financial and medical need. At the federal level, Title XIX of the Social Security Amendments of 1965, 42 U.S.C. §§ 1396 to 1396v (1994 & Supp. II 1996), establishes a program, commonly known as "Medicaid," for the purpose of providing federal financial assistance to states that choose to participate. Under the program, the federal government pays a percentage of the total cost that a participating state incurs in providing certain categories of medical care and services to needy persons. See 42 U.S.C. § 1396b(a), 1396d(b)(1). While a state's medical assistance plan must contain a number of required elements in order to qualify for federal funding, see Hern v. Beye, 57 F.3d 906, 910 (10th Cir.1995), "Title XIX does not obligate a participating State to pay for those medical services for which federal reimbursement is unavailable," Harris v. McRae, 448 U.S. 297, 309, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980).

¶5 Except in cases of rape or incest, or when necessary to save the life of the mother, abortions are among the medical services for which federal funding is unavailable under a provision of federal law known as "the Hyde Amendment." See Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act of 1995, Pub.L. No. 103-333, § 509, 108 Stat. 2539, 2573 (1994).¹ However, "[a] participating State is free, if it so chooses, to include in its Medicaid plan those medically necessary abortions for which federal reimbursement is unavailable." Harris, 448 U.S. at 311 n. 16, 100 S.Ct. 2671.

¶6 Section 27-2-12 of New Mexico's Public Assistance Act, NMSA 1978, § 27-2-12 (1993), authorizes the Medical Assistance Division of the Human Services Department to issue regulations regarding the provision of medical assistance to persons eligible for public assistance programs under the federal Social Security Act. Pursuant to Section 27-2-12, the Department issued a rule, known as "Rule 766," that restricted the availability of abortions under the State's medical assistance plan. In response to concerns about its constitutionality, the Department revised Rule 766 in 1994 to expand the availability of abortions under the State's medical assistance plan. The revised rule allowed the use of state funds to provide abortions for Medicaid-eligible women when they are medically necessary. See Pregnancy Termination Procedures, N.M. Human Servs. Dep't, Med. Assistance Div. Reg. 766, 5 N.M.Reg. 1632 (Dec. 15, 1994, prior to 1995 amendment). The 1994 rule defined an abortion as "medically necessary" when a pregnancy "aggravates a pre-existing condition, makes treatment of a condition impossible, interferes with or hampers a diagnosis, or has a profound negative impact upon the physical or mental health of an individual." Id. Under the 1994 rule, abortions for Medicaid recipients that met this definition of "medically necessary" but did not fit into the exceptions of the Hyde Amendment were paid for exclusively with state funds.

¶7 After a new Secretary was appointed, the Department made another revision of

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Rule 766 that was scheduled to take effect in May 1995. The 1995 rule restricted state funding of abortions under the Department's medical assistance program to those certified by a physician as necessary to save the life of the mother or to end an ectopic pregnancy, or when the pregnancy resulted from rape or incest. See Pregnancy Termination Procedures, N.M. Human Serv. Dep't, Med. Assistance Div. Reg., 6 N.M.Reg. 684 (Apr. 29, 1995) (codified at 8 NMAC 4.MAD.766 (May 1, 1995)).² On April 21, 1995, however, Plaintiffs brought suit in the district court to prevent the 1995 revision of Rule 766 from taking effect.

¶8 Plaintiffs' complaint alleged that Rule 766 violates the rights of Medicaid-eligible women under Article II, Sections 4 and 18 of the New Mexico Constitution. The Department denied these allegations. Eugene E. Klecan filed a motion, in which Donald Schaurete later joined, to intervene as of right as a taxpayer and representative of the potential life of the unborn. The district court granted the motion to intervene. The Attorney General declined to represent the Department and was later allowed to present arguments as an amicus curiae.

¶9 On May 1,...