Humphreys v. Clinic for Women, Inc.

Decision Date24 September 2003
Docket NumberNo. 49S00-0011-CV-714.,49S00-0011-CV-714.
Citation796 N.E.2d 247
PartiesKatherine HUMPHREYS, Secretary, Indiana Family & Social Services Administration, Appellant (Defendant below), v. CLINIC FOR WOMEN, INC., Women's Pavilion, Inc., Ulrich G. Klopfer, D.O., and Martin Haskell, M.D., Appellees (Plaintiffs below).
CourtIndiana Supreme Court

Steve Carter, Attorney General of Indiana, Thomas M. Fisher, Special Counsel, Office of Attorney General, Indianapolis, IN, Attorneys for Appellant.

Mary Hoeller, Indianapolis, IN, Bebe J. Anderson, Bridgitte Amiri, New York, NY, Attorneys for Appellee.

Bruce A. Stuard, Elwood, IN, Paul Benjamin Linton, Northbrook, IL, James Bopp Jr., Richard Coleson, Terre Haute, IN, Attorneys for Amici Curiae Members of the Indiana Legislature, Indiana Right to Life Committee, Inc.

Kenneth J. Falk, Jacquelyn Bowie Suess, Indianapolis, IN, Attorneys for Amicus Curiae Indiana Civil Liberties Union, Inc.

SULLIVAN, Justice.

Indiana's Medicaid program will pay for a poor woman to have an abortion but only if necessary to preserve her life or if rape or incest caused her pregnancy. The plaintiffs in this case argue, and the trial court held, that Medicaid must pay for any abortion that is medically necessary, citing the Indiana Constitution's requirement that privileges or immunities cannot be granted to a citizen or class of citizens that do not equally belong to all citizens on the same terms.

For the reasons set forth in this opinion in part I under "Discussion," I believe that this provision of the Indiana Constitution does not require Medicaid to pay for all abortions that are medically necessary. Chief Justice Shepard and Justice Dickson join in this part of this opinion.

However, for the reasons set forth in this opinion in part II under "Discussion," I also conclude that, so long as the Indiana Medicaid program pays for abortions to preserve the lives of pregnant women and where rape or incest cause pregnancy, it must also pay for abortions in cases of pregnancies that create for pregnant women serious risk of substantial and irreversible impairment of a major bodily function. Justices Boehm and Rucker join in this part of this opinion.


In 1965, Congress established the Medicaid program, a joint federal-state program that pays for some health care costs of low-income people, by amending Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v. Under the Medicaid program, the federal government reimburses participating states for the health care services provided pursuant to the state's medical assistance or Medicaid plan. Id. at §§ 1396a(a)(10), 1396d(a). States are not required to participate in the Medicaid program but states that choose to participate must conform their Medicaid program to federal Medicaid law. Id. at § 1396a(a).

In 1973, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment protected, to a certain extent, the freedom of a woman to terminate a pregnancy. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

In 1976, Congress first adopted legislation, referred to as the "Hyde Amendment" for its author, Representative Henry J. Hyde, that prohibits the federal government from reimbursing states under the Medicaid program for abortions except where a woman would be placed "in danger of death unless an abortion is performed" or where "the pregnancy is the result of an act of rape or incest." Pub.L. No. 106-113, §§ 508-509, 113 Stat. 1501, 1501A-274 (1999). Although the provisions of the Hyde Amendment have varied from time to time, this is the language of the prohibition and exception in effect today.1 In 1977, the Supreme Court held that the constitutional right to abortion recognized in Roe v. Wade did not include an entitlement to Medicaid payments that were not medically necessary. Maher v. Roe, 432 U.S. 464, 470, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977). In 1980, the Supreme Court was faced with a challenge to the constitutionality of the Hyde Amendment, i.e., whether Congress could prohibit the use of federal Medicaid funds to reimburse states for medically necessary abortions. The court held that the Hyde Amendment did not violate either the Due Process or the Equal Protection Clauses of the Fourteenth Amendment. Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980).

Any state that participates in the Medicaid program must cover those abortions for which federal funds are available. Zbaraz v. Quern, 596 F.2d 196, 201 (7th Cir.1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3048, 65 L.Ed.2d 1136 (1980). Nevertheless, "[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 309, 100 S.Ct. 2671.

Indiana participates in the federal Medicaid program and is bound by all of its requirements. Ind.Code § 12-15-1-1. The Indiana Medicaid program provides low-income Hoosier citizens with virtually all non-experimental, medically necessary health care, including some services for which federal reimbursement is not available. See e.g., Ind.Code § 12-15-5-1(18) (providing coverage for nonmedical nursing care given in accordance with tenants and practices of a recognized church); cf. 42 C.F.R. § 440.170(b) (restricting federal funding for such institutions to those organized pursuant to Section 501(c)(3) of the Internal Revenue Code). Indiana Medicaid covers inpatient hospital services, physicians' services, and outpatient hospital or clinic services for all recipients and provides a full range of reproductive health care for Medicaid-eligible men. Ind.Code § 12-15-5-1. Covered services must be "medically reasonable and necessary" and are required to be provided to Medicaid recipients in a uniformly equitable manner. Ind.Code § 12-15-1-10. Indiana Medicaid defines a "medically reasonable and necessary service" as one that "meets current professional standards commonly held to be applicable to the case." Ind. Admin. Code tit. 405, r. 5-2-17 (2001). However, in the case of abortion services, the program defines an abortion as necessary (and therefore covered under the program) only if "performed to preserve the life of the pregnant woman or in other circumstances if the abortion is required to be covered by Medicaid under federal law," e.g., where the pregnancy was caused by rape or incest. Ind.Code § 12-15-5-1(17);2 Ind.Code § 16-34-1-2;3 Ind. Admin. Code tit. 405, r. 5-28-7.4 The plaintiffs in this case, Clinic for Women, Inc., Women's Pavilion, Inc., Ulrich G. Klopfer, D.O., and Martin Haskell, M.D., challenge the constitutionality of these two statutes and this regulation. The plaintiffs contend that the statutes' and regulation's collective prohibition on the use of state Medicaid funds to pay for abortions violates the Equal Privileges and Immunities Clause of Art. I, § 23, as well as Art I, §§ 1 and 12, of the Indiana Constitution.5

After hearing oral argument of the parties, the trial court granted the plaintiff's motion for summary judgment and denied the state's cross-motion for summary judgment, ruling that the challenged statutes and regulation violated Art. I, § 23. The trial court did not address plaintiffs' Art. I, § 1 and 12, claims and they are not before us here.

Article I, § 23, of the Indiana Constitution reads as follows:

The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.

From at least 1971 until about nine years ago, this court analyzed claims under the state Equal Privileges and Immunities Clause using the same techniques as those employed by the United States Supreme Court to analyze claims under the Equal Protection Clause of the Fourteenth Amendment. See Collins v. Day, 644 N.E.2d 72, 75 (Ind.1994)

. In Collins, this court jettisoned the use of federal equal protection analytical methodology to claims alleging violations of Art. I, § 23, and held that such claims should be analyzed using a different standard. Id. That standard was summarized as follows:

Article 1, Section 23 of the Indiana Constitution imposes two requirements upon statutes that grant unequal privileges or immunities to differing classes of persons. First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. Finally, in determining whether a statute complies with or violates Section 23, courts must exercise substantial deference to legislative discretion.

Id. at 80. Indiana courts have made frequent use of the Collins standard since its promulgation, including the trial court here.

The trial court found that the ban on funding abortions contained in the challenged statutes and regulation failed both prongs of the Collins standard summarized supra.

The first prong of the Collins test requires that "where the Legislature singles out one person or class of persons to receive a privilege or immunity not equally provided to others, such classification must be based upon distinctive, inherent characteristics which rationally distinguish the unequally treated class, and the disparate treatment accorded by the legislation must be reasonably related to such distinguishing characteristics." Id. at 78-79. The trial court started its analysis of this prong with the proposition that the "Medicaid program is a government program through which a benefit—government payment for medically necessary treatment—is provided to indigent Hoosiers." (Supp. R. 8.) "However," the trial court continued, "that benefit is not provided equally to all indigent Hoosiers—women who, for medical reasons, need to terminate their pregnancy in order to preserve and protect their health...

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