Simat Corp. v. AHCCCS

Decision Date22 October 2002
Docket NumberNo. CV-01-0324-PR.,CV-01-0324-PR.
Citation203 Ariz. 454,56 P.3d 28
PartiesSIMAT CORP. d/b/a Abortion Services of Phoenix; Arizona Reproductive Medicine & Gynecology, Ltd., Robert H. Tamis, M.D.; Family Planning Associates Medical Group; Joel B. Bettigole, M.D.; Damon S. Raphael, M.D.; Tucson Woman's Clinic; and William A. Meyer, Jr., M.D., Plaintiffs-Appellees, v. ARIZONA HEALTH CARE COST CONTAINMENT SYSTEM, and Phyllis Biedess, in her capacity as Director of AHCCCS, Defendants-Appellants.
CourtArizona Supreme Court

LaVoy & Chernoff, P.C. by Christopher A. LaVoy, Mark D. Chernoff, Phoenix, and Center for Reproductive Law & Policy by Bebe J. Anderson, Hillary Schwab, New York, for

Plaintiffs-Appellees, Simat Corporation, Abortion Services of Phoenix; Arizona Reproductive Medicine & Gynecology, Ltd.; Robert H. Tamis, M.D.; Family Planning Associates Medical Group; Joel B. Bettigole, M.D.; Damon S. Raphael, M.D.; Tucson Woman's Clinic; and William A. Meyer, Jr.

Johnston & Kelly, P.L.C. by Logan T. Johnston, III, Phoenix, for Defendants-Appellants, Arizona Health Care Cost Containment System and Phyllis Biedess.

Paul Benjamin Linton, Northbrook, Illinois, and Center for Arizona Policy by Lynden L. Munsil, Gary S. McCaleb, Scottsdale, for Amicus Curiae Members of the Arizona Legislature.

Greenberg Traurig, L.L.P. by Leigh Anne Ciccarelli, Phoenix, for Amici Curiae Southern Arizona Chapter of the National Lawyers Guild and Arizona Civil Liberties Union.

Wilmer, Cutler & Pickering by M. Carolyn Cox, Washington, D.C., and Bonnie L. Booden, Phoenix, for Amicus Curiae Southern Arizona People's Law Center and National Network of Abortion Funds.


FELDMAN, Justice.

¶ 1 We granted review to decide whether the state constitution permits the state and the Arizona Health Care Cost Containment System (AHCCCS) to refuse to fund medically necessary abortion procedures for pregnant women suffering from serious illness while, at the same time, funding such procedures for victims of rape or incest or when the abortion is necessary to save the woman's life.

¶ 2 The court of appeals held that AHCCCS' funding scheme was constitutionally permitted. Simat Corp. v. Arizona Health Care Cost Containment Sys., 200 Ariz. 506, 512 ¶ 20, 29 P.3d 281, 287 ¶ 20 (App.2001). Having ordered supplemental briefing and heard oral argument, we now conclude, as have the great majority of other states that have considered this question, that insofar as the state scheme permits funding of abortions for one class of pregnant women, the state constitution will not permit it to deny funding for others for whom abortions are medically necessary to save the mother's health.

¶ 3 We are aware, of course, of the controversy surrounding any issue pertaining to abortion. We therefore think it appropriate to state what this case is not about. It is not about the right to an abortion. The right to choose was established by the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147 (1973). It is not about whether the Arizona Constitution provides a more expansive abortion choice than the federal constitution— that issue is not presented. It is not about whether the state must fund abortions for non-therapeutic or contraceptive purposes or, for that matter, any purpose—those issues are not presented. The narrow and only question decided is this: Once the state has chosen to fund abortions for one group of indigent, pregnant women for whom abortions are medically necessary to save their lives, may the state deny the same option to another group of women for whom the procedure is also medically necessary to save their health?


¶ 4 Appellees (the doctors) are providers of medical services, including abortions, in the field of obstetrics and gynecology. AHCCCS is a state agency that provides Medicaid services to qualified Arizona women with incomes at or below 140 percent of the federally set poverty level. Each of the doctors is a provider to AHCCCS patients, among others. All of the doctors have and have had patients suffering from medical conditions that are serious but not immediately life-threatening. To treat many of these conditions, an abortion must be performed before the necessary therapy can be administered. An example is cancer, for which chemo- or radiation therapy ordinarily cannot be provided if the patient is pregnant, making an abortion necessary before proceeding with the recognized medical treatment. Other conditions for which the administration of drug or other therapy regimens must at times be suspended during pregnancy include heart disease, diabetes, kidney disease, liver disease, chronic renal failure, asthma, sickle cell anemia, Marfan's syndrome, arthritis, inflammatory bowel disease, gall bladder disease, severe mental illness, hypertension, uterine fibroid tumors, epilepsy, toxemia, and lupus erythematosus. In many of the women suffering from these diseases, suspension of recognized therapy during pregnancy will have serious and permanent adverse effects on their health and lessen their life span.1

¶ 5 AHCCCS will not fund abortion services unless the procedure "is necessary to save the life of the woman having the abortion." A.R.S. § 35-196.02. AHCCCS will, however, fund abortion services for victims of rape or incest. See AHCCCS Medical Policy Manual, Ch. 400—Medical Policy for Maternal and Child Health, Policy 410—Maternity Care Services. The regulations are broader than the statute but required by federal law as a condition of obtaining federal funds. AHCCCS does not challenge the validity of the regulations.


¶ 6 The doctors' complaint asked for declaratory and injunctive relief on the grounds that the funding policy that prevents medically necessary abortions for AHCCCS patients violates various provisions of the Arizona Constitution. Among these are the privacy clause (art. II, § 8), the due process clause (art. II, § 4), and the equal privileges and immunities clause (art. II, § 13). The doctors and the state filed cross-motions for summary judgment. The trial judge denied the state's motion and granted the doctors' motion. He enjoined AHCCCS from enforcing A.R.S. § 35-196.02 in cases in which the abortion procedure was medically necessary to protect the health of the mother and ordered the state to fund medically necessary abortions to the same extent it funds other services for pregnant women. Minute Entry, May 19, 2000, at 5.

¶ 7 In reaching this result, the judge first noted that the doctors did not claim their patients had a right to state-funded abortions, but stated that once the state did fund necessary medical care for indigents, the Arizona Constitution required it to do so in a neutral manner. Id. at 2. The judge then noted that in the case of abortions, AHCCCS uses "completely different standard[s] of medical necessity." Id. at 3. Instead of the general definition of certification that services are medically necessary, for abortion procedures there must be certification that the pregnancy is the product of rape or incest or is necessary to save the life of the woman. Id.; AHCCCS Medical Policy Manual, supra. The judge therefore found the AHCCCS program is not neutral with respect to reproductive choice and its policy violates fundamental rights under Arizona's constitution. Minute Entry at 5.

¶ 8 The judge concluded that under our case law, the privacy clause, article II, § 8, gives each Arizona woman the fundamental right to decide on her "own plan of medical treatment." Id. at 4 (citing Rasmussen v. Fleming, 154 Ariz. 207, 215, 741 P.2d 674, 682 (1987)). Thus, the judge determined, statutes or agency regulations that impair or infringe on such rights must be examined with strict scrutiny and can be upheld only when essential to serve a compelling state interest. Id. Finding that the state had not established that it had "a compelling State interest that must be advanced by endangering indigent women" through denial of medical treatment necessary to preserve their health, the judge held the statutory and regulatory provisions at issue unconstitutional. Id. at 4-5.

¶ 9 The court of appeals reversed, holding that the statutory scheme does not violate any Arizona constitutional provision, and remanded the case to the superior court for entry of summary judgment in favor of the state. Simat Corp., 200 Ariz. at 512 ¶ 20, 29 P.3d at 287 ¶ 20. The court relied on Harris v. McRae, a case in which the United States Supreme Court upheld the constitutionality of the so-called Hyde Amendment, a statute that prohibits the use of federal funds under the Medicaid program of Social Security to reimburse states for the cost of abortions. 448 U.S. 297, 322, 100 S.Ct. 2671, 2691, 65 L.Ed.2d 784 (1980). The Hyde Amendment contains exceptions to the prohibition that are similar to but somewhat broader than those contained in A.R.S. § 35-196.02. The exceptions are when the mother's life "would be endangered" if the abortion were not performed and when the "procedures [are] necessary for the victims of rape or incest...." Pub.L. 96-123 § 109, 93 Stat. 923 (1979).


¶ 10 In McRae, the Supreme Court held that the states participating in the Medicaid system were not required by federal law to fund therapeutic abortions for which federal reimbursement was unavailable because of the Hyde Amendment. 448 U.S. at 309-10, 100 S.Ct. at 2684. This holding, of course, applies to Arizona. Nothing in the federal law requires Arizona to fund abortions other than in accordance with the Medicaid statutes and regulations, as modified by the Hyde Amendment.

¶ 11 The Supreme Court then held that the Hyde Amendment's funding restrictions did not violate a patient's right of choice as described in Roe or the religion clauses of the First Amendment. Id. at 315-19, 100 S.Ct. at 2687-89. We reach the same result under the ...

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