Bell v. Low Income Women of Texas

• Decision Date: 31 December 2002
• Docket Number: No. 01-0061.,01-0061.
• Citation: 95 S.W.3d 253
• Parties: Charles E. BELL, Commissioner of Health, et al., Petitioner, v. LOW INCOME WOMEN OF TEXAS, et al., Respondent.
• Court: Texas Supreme Court

95 S.W.3d 253

Charles E. BELL, Commissioner of Health, et al., Petitioner, v. LOW INCOME WOMEN OF TEXAS, et al., Respondent.

No. 01-0061.

Supreme Court of Texas.

Argued November 18, 2001.

Decided December 31, 2002.

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Gregory S. Coleman, Weil, Gotshal & Manges, Robert Searls Johnson, Asst. Solicitor General, Jeffrey S. Boyd, Office of the Attorney General, John Cornyn, Attorney General of the State of Texas, Andy Taylor, First Assistant Attorney General, Austin, for Petitioner.

Catherine A. Mauzy, Austin, for Respondent.

Justice O'NEILL delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice HECHT, Justice ENOCH, Justice OWEN, Justice JEFFERSON, Justice SCHNEIDER and Justice SMITH joined.

In this case, plaintiffs challenge certain restrictions the State's Medicaid program places on abortion funding. The program provides medically necessary services for which federal matching funds are available. Before 1976, those services included abortions that were determined to be medically necessary. But after the United States Congress passed the Hyde Amendment in 1976, federal funds could no longer be used for medically necessary abortions unless the pregnancy resulted from rape or incest or placed the woman in danger of death. When federal matching funds became unavailable, the State stopped funding medically necessary abortions that did not comply with the Hyde Amendment. Plaintiffs claim that this funding restriction violates the Texas Constitution's Equal Rights Amendment and Equal Protection Clause, and their constitutional right to privacy, because the State applies a higher standard of medical necessity for treatments that involve abortion than it applies to all other medical services.

We hold that the funding restrictions do not discriminate on the basis of sex and are rationally related to a legitimate governmental purpose; thus, they do not violate the Equal Rights Amendment. We further hold that the restrictions violate neither the constitutional right to privacy nor the Equal Protection Clause. Accordingly, we reverse the court of appeals' judgment and render judgment for the defendants.

I Background

A. Statutory framework

Since 1965, the federal government's Medicaid program has offered matching funds to states that provide health services to the indigent. Social Security Amendments of 1965, Pub.L. No. 89-97, Title XIX, 79 Stat. 286 (1965) (now codified at 42 U.S.C. §§ 1396-1396v). If a state implements a program that meets certain minimum standards, the federal government will contribute a percentage of the cost of providing indigent health services in the state. 42 U.S.C. §§ 1396-1396b; Harris v. McRae, 448 U.S. 297, 308, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). A participating state may choose, at its own expense, to provide indigent health services in addition to those which the federal government reimburses, although Texas has chosen not to do so. See Harris, 448 U.S. at 311 n. 16, 100 S.Ct. 2671; TEX. HUM. RES.CODE § 32.024(e). All states participate in the Medicaid program.

Every year since 1976, Congress has adopted the Hyde Amendment, a rider to the federal Medicaid statute that limits the availability of federal matching funds for abortions. The amendment's language has changed over the years, but the version at issue in this case provides:

SEC. 508 (a) None of the funds appropriated under this Act, and none of the funds in any trust fund to which funds are appropriated under this Act, shall be expended for any abortion.

SEC. 509 (a) The limitations established in the preceding section shall not apply to an abortion —

(1) if the pregnancy is the result of an act of rape or incest; or

(2) in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.

Consolidated Appropriations Act, 2001, Pub.L. No. 106-554, § 1(a)(1) (enacting H.R. 5656), 114 Stat. 2763, Appendix A, H.R. 5656, Tit. V, §§ 508, 509.

Texas has participated in Medicaid since 1967 through the Texas Medical Assistance Program (TMAP). See Medical Assistance Act of 1967, 60th Leg., R.S., ch. 151, §§ 1-24, 1967 Tex. Gen. Laws 310 (now codified at TEX. Hum. RES.CODE §§ 32.001-.052). The act implementing TMAP expressly provides that TMAP "may not authorize the provision of any service to any person under the program unless federal matching funds are available to pay the cost of the service." See id. at § 5, 1967 Tex. Gen. Laws 312; TEX. Hum. RES.CODE § 32.024(e). As a result, the Hyde Amendment applies to prohibit TMAP funding for abortions unless the pregnancy results from rape or incest, or places the woman in danger of death.¹

B. The Present Litigation

Three physicians and three clinics that provide abortions filed this lawsuit on behalf of themselves and their Medicaid-eligible patients² against the Texas Board of Health, the Texas Department of Health, and Charles E. Bell, the Texas Commissioner of Health (the State).³ Plaintiffs claim that certain medical conditions may be caused or aggravated by pregnancy, such as premature ruptured membrane, preeclampsia, eclampsia, hypertension, diabetes, congenital heart disease, renal failure sickle cell anemia, asthma, epilepsy, and cancer. Some of these conditions cannot be treated while a woman is pregnant. And some of these conditions can, if the pregnancy is not terminated, cause a woman to suffer strokes, severe bleeding disorders, eye disease, heart failure, renal function deterioration, seizures, and accelerated growth of breast cancer tumors. Plaintiffs claim that the State's abortion funding restrictions cause indigent women to delay or forego medically necessary abortions, causing them to either risk or experience harm to their health.

Plaintiffs filed this suit seeking a judgment declaring that TMAP's abortion funding restrictions violate indigent women's right to privacy, and their rights under the Equal Rights Amendment and Equal Protection Clause⁴ of the Texas Constitution. They also sought to permanently enjoin the State from enforcing the restrictions. After stipulating that there were no disputed material fact issues, each side moved for summary judgment. The trial court granted the State's motion, and plaintiffs appealed. The court of appeals reversed, holding that TMAP's funding restrictions violate the Texas Constitution's Equal Rights Amendment. 38 S.W.3d 689, 703. The court rendered judgment for the plaintiffs, and remanded their claim for attorneys' fees to the trial court for further proceedings. Id. We granted the defendants' petition for review to consider the plaintiffs' constitutional challenges.

II Equal Rights Amendment

A. Discriminatory Intent

Texas passed the Equal Rights Amendment to the Texas Constitution in 1972. The Equal Rights Amendment was "designed expressly to provide protection which supplements the federal guarantees of equal treatment." TEXAS LEGISLATIVE COUNCIL, 14 PROPOSED CONSTITUTIONAL AMENDMENTS ANALYZED FOR ELECTION-NOVEMBER 7, 1972 at 24 (1972). It provides that "[e]quality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin." TEX. CONST. art. I, § 3a. Plaintiffs contend that the abortion funding restrictions discriminate on the basis of sex because the State funds virtually all medically necessary services for men, while refusing to fund abortions that are medically necessary. They further maintain that the restrictions serve no compelling State interest and thus are constitutionally infirm.

In In re McLean, a plurality of this Court described a three-step process for evaluating alleged Equal Rights Amendment violations. 725 S.W.2d 696, 697 (Tex. 1987) (plurality opinion). That process is consistent with the Equal Rights Amendment's language and purposes, and the parties agree that we should apply it here. In doing so, we first decide whether equality under the law has been denied. If it has, the Equal Rights Amendment's language compels us to determine "whether equality was denied because of a person's membership in a protected class of sex, race, color, creed, or national origin." Id. If we conclude that equality was denied because of a person's membership in a protected class, the challenged action cannot stand unless it is narrowly tailored to serve a compelling governmental interest. See id. at 698.

In the present case, it is undisputed that the State provides virtually all medically necessary services to indigent men, yet it denies funding for abortions that are determined to be medically necessary. Because the State treats indigent women seeking abortions differently from all others, the plaintiffs have established the first prong of the McLean analysis, that is, that equality under the law has been denied. The question we must decide is whether equality has been denied "because of" sex. The State contends that this disparity is not sex based because the funding restriction, section 32.024(e) of the Human Resources Code, is facially neutral and merely prohibits funding any services that are not federally reimbursable. Plaintiffs, on the other hand, look solely to the Hyde Amendment's terms and argue that, because only women can become pregnant, funding is necessarily denied "because of" sex. We believe the question is not as straightforward as either party suggests. In McLean, we considered a statutory scheme that treated unmarried fathers differently from unmarried mothers. There, a biological father challenged, under the Equal Rights Amendment, a statute that required an unmarried father who wished to exercise his parental rights over a child to either obtain the mother's consent, or to establish that legitimation was in the child's best interest. Unmarried mothers, on the other...