Low-Income Women Ex Rel. Prince v. Bost

video- substitute for the adequate was an goal of im- accomplish appellant’s

tapes to with her complaining witness

peaching

prior inconsistent statements. I trial court

Accordingly, would hold the videotapes inad- by holding

did not err and would affirm the trial court’s

missible

judgment. TEX WOMEN OF LOW-INCOME Prince,

AS, Represented as Robert

M.D.; Boyd, M.D.; Curtis William West, Jr., M.D.; The Fair

Watkins Center; The

mount Routh Street Clinic; Reproductive

Women’s Services, Appellants,

Health BOST, of Human

Eric M. Commissioner

Services, Capacity in his Official Successors;

his The Texas Board of Services; Depart

Human The Texas Services;

ment of Human Charles E.

Bell, Health, Commissioner of his Successors; Capacity

Official and his Health; and The

The Texas Board of Health, Appel Department

lees.

No. 03-98-00209-CV. Texas, Appeals

Court

Austin. 7, 2000.

Dec. Gen., Horton, Atty. Asst.

Heather L. Austin, appellees. for Austin, appel- Mauzy, A.

Catherine lants. JONES, B.A. SMITH

Before Justices andYEAKEL. SMITH,

BEA Justice. ANN of Texas1 Low-Income Women chal- the State to against a lawsuit2 filed abor- placed restrictions lenge funding medi- by the State’s provided tion services Texans. The programs cal for low-income funding for abor- prohibit restrictions state rape of or incest or except tions cases the life of the necessary when to save mother; essentially all other necessary procedures is available necessary.” “medically procedure if the declaratory seek a Low-Income Women provisions challenged judgment nec- funding medically restricting state the Texas Consti- essary abortions violate relief request injunctive They tution. also challenged of the enjoining enforcement attorneys’ well as costs and provisions, as summary motions for Competing fees. filed; grant- court the trial judgment were motion and denied Low- ed the State’s motion. Low-Income Income Women’s the abortion- claiming that appeal, Women provi- three funding restrictions violate (1) the the Texas Constitution: sions of (2) clause; guar- privacy equal protection (3) antees; Rights Amend- Equal (ERA). judgment We will vacate ment Services, Department and the Texas represented in Human Women are this 1. Low-Income Prince, M.D.; Services, Boyd, do Curtis "as these defendants lawsuit M.D.; Robert Human West, Jr., M.D.; William Watkins challenged programs and not administer Center; Street Wom- The Routh Fairmount presented in upon impact the issues have no Clinic; Reproductive Health Ser- en’s 11. The remain- Tex.R.Civ.P. this case.” See vices. Commis- ing defendants/appellees are current Bell, the Texas Charles E. of Health sioner By agreement submitted to a Rule 11 Health, Department and the Texas Board of trial, prior Low-Income district court collec- to defendants We will refer of Health. against agreed drop de- all claims Women tively as “the State.” Bost, M. the Texas Board fendants Eric concerning pating providing and dismiss claim the cur- state incurs in these ser- rently unfunded Maternal and Infant Supp.2000). vices. Id. 1396b (Maternal/Infant Improvement Health Act law mandatory op- Federal establishes Act). agree Health Because we categories participating tional of services a Medicaid restrictions violate the may provide under Id. Medicaid. ERA, judgment we will reverse the 1396d(a) (West 1396a, §§ Supp.2000). judgment trial court and granting render Congress has restricted federal match- Low-Income motion for Women’s sum- funds ing available for abortions mary judgment. We will remand the annual enactment of the Amend- cause to the trial court solely for consider- sponsor, Representa- ment. Named for its request ation of the Low-Income Women’s Illinois, attorneys’ Henry Hyde for costs and tive fees. Amendment is a rider to the Labor-HEW FACTUAL AND PROCEDURAL Appropriations passed Act that has been BACKGROUND every year specific since 1976.3 The terms of the amendment have varied over the Statutory Framework years, presently but the in place versions The lawsuit filed Low-Income Wom- place and in when this lawsuit was filed challenges funding en restrictions on two prohibit federal reimbursement for abor- programs that subsidize health ser- in or except rape tion services cases of poor. vices for the At issue are the Texas pregnancy incest or where the threatens Program, Medical which Tex- Assistance is Hyde Though the mother’s life.4 program, programs as’s Medicaid and the prevents receiving Amendment states from 'created Health Maternal/Infant matching federal funds for most abortion Act. services, free states are to subsidize The federal Medicaid es- program was expense their own abortions for which fed- in Congress tablished 1965 when enacted eral reimbursement is not available. Har- XIX 42 Security Title of the Social Act. McRae, 297, 16, ris v. 448 311 n. 100 U.S. (West §§ <& U.S.C.A. 1396-1396v 1992 (1980); S.Ct. 65 L.Ed.2d 784 Omni- Supp.2000). joint Medicaid is a federal- Emergency Supple- bus Consolidated and indigent-assistance program Appropriations mental Act of Pub. provides federal funds to each state to 105-277, 509(b), sec. 112 Stat. 2681- Law furnish medical assistance to certain cate- (“Nothing preceding in section (West 385 § gories needy persons. Id. 1992). prohibiting the ex- shall be construed as government pays a The federal ... percentage partici- penditure by of the total cost that a a State of State ... (a) original 3. The version of the Amend- SEC. 509. The limitations established preceding apply ment read: "None of the funds contained in the section shall perform Act shall be used to abortions this an abortion— (1) except where the life of the would be pregnancy mother an act of if the result of incest; endangered if the fetus were carried to term.” rape or or Education, Health, Departments (2) of Labor where a woman from a in the case suffers Act, Appropriation and Welfare Pub.L. No. disorder, physi- physical physical injury, or 94-439, (1976). sec. 90 Stat. 1418 illness, including life-endangering cal arising physical by or condition caused 4. The Amendment enacted with the itself, would, pregnancy as from the budget reads: place by physician, woman in certified (a) danger per- of death unless an abortion appropri- of the funds SEC. 508. none Act, formed. ated under this and none of the funds Emergency Sup- ap- Omnibus Consolidated any are trust fund to which funds Act, plemental Appropriations Pub.L. propriated expend- Act of under this shall be 105-277, 508(a), 509(a), 112 Stat. No. sec. ed for abortion. (1998). 2681-385 R.S., Act, Leg., 69th (other Improvement Health than a ... contribu- funds State’s (Tex.Rev. funds).”). ch. 1985 Tex.Gen.Laws matching tion of Medicaid repealed 4447y, since art. Civ.Stat.Ann. al- participated in Medicaid Texas has Safety & Code at Tex.Health and codified pass- program’s inception, most since 32.001-045). the Mater- §§ Under Ann. in 1967 establish- enabling legislation ing Act, funds be Health nal/Infant See Program. Medical Assistance ing the services unless abortion provide used to Leg., Act of 60th Medical Assistance danger. Tex.Health life is in the woman’s 1-24, R.S., 151, §§ 1967 Gen.Laws ch. 1992). (West §Ann. 32.005 Safety & Code (Tex.Rev.Civ.Stat.Ann. 695j, 695j-l, arts. who are for women exception noWith and codified at Tex.Hum. repealed since incest, coverage abortion rape victims (West §§ Ann. 82.001-.052 Res.Code Act is Health under the Maternal/Infant covers all program Supp.2000)). & the Texas than under more restricted even and bene- care and related services “health Program. Assistance Medical federal provided authorized or under fits needy of this state.” law for individuals Parties Ann. 32.008 Tex.Hum.Res.Code represented Women are Low-Income however, limited, Supp.2000). Services are health climes by physicians and this action which the State can receive to those for Doctors provide abortion services. matching id. federal funds. Boyd are both Price and Curtis Robert 32.024(e) (West The Texas Supp.2000). their who divide physicians Texas-licensed tac- Program Medical Assistance therefore and private practices their time between itly adopts by the limits set forth Center, cen- a Dallas health the Fairmount Amendment, physicians and are reim- low-cost, abor- outpatient provides ter that only for abor- bursed with Medicaid funds Medicaid-eligible women. tions to necessary woman’s life or tions to save the assert their and the clinic each physicians has resulted from pregnancy when the patients, and those of their own interests rape By or incest. own admis- State’s re- claiming that because sion, every reproductive other health ser- necessary abor- medically strictions provided by vice a doctor with the Texas tions, delay many women are forced Program Medical Assistance is reimbursed until their second obtaining an abortion medically necessary; if it one minor with trimester, poses procedure when exception, only abortion is the service of risks, of the time greater health because any by program kind covered for a non- money pay to find required requires showing something a more abortion. subsidized necessity.5 than mere medical is also a Watkins West Doctor William challenge, In addition to their Medicaid in specializes abor- physician who challenged Low-Income Women have at the Routh provides He services tions. in the abortion restrictions found Dallas, in also Women’s Clinic Street Tex. Health Act. See Maternal/Infant in case. Between plaintiff-appellant this §§ Safety Health & Code Ann. 32.001-045 Dr. Routh (West percent five and ten of West’s Supp.2000). program This 1992 & and Medicaid-eligible, are patients in medical and Street provide was created abortions to clinic offers reduced-fee services to low-income women educational Reproductive Finally, and Infant those women. and infants. See Maternal requests ANSWER: None responses plaintiffs’ 5. The State’s following: non-experimental included the health for admission 16: List No. services, abortions, pro- that are repro- other than any non-experimental No. 15: List eligible eligible person’s care men life is only ductive health services when the vided by the Medical Assis- are covered endangered. Program when their lives are endan- tance gered. dental services. Limited adult ANSWER: cest, in non-profit physician Health Services is a clinic locat- which the deems an abortions, provides ed Austin that fami- medically necessary abortion and advisable care, ly planning, prenatal gyne- and other problems by because of health faced cological services. provides It abortions to preg- mother the fetus. Even a normal Medicaid-eligible women. Like the other health, nancy strains a woman’s and some lawsuit, plaintiffs in this Reproductive conditions pregnancy po- increase the risk Health Services claims that the clinic and greatly ses to a woman’s health so that her patients it treats are irreparably may doctor recommend abortion. Low- by abortion-funding harmed restric- Income detail numerous Women medical tions. conditions that are caused or exacerbated defendants/appellees action pregnancy. this The record contains sum- are Commissioner of Health Charles E. mary judgment that preeclamp- evidence Bell, Health, Department the Texas sia, diabetes, eclampsia, hypertension, con- the Texas Board of Health. While the disease, failure, genital heart renal sickle Human Department designated Services anemia, asthma, cell epilepsy, cancer by statute as the administrator of the are all conditions may aggravated be Medical Program, legisla- Assistance or caused can pregnancy and threaten ture has provided program also health, the mother’s even situations in cooperation be administered with they where do not immediately jeopardize agencies. other state Tex.Hum.Res.Code Thus, pregnancy her carried to life. 32.003, .021, §§ Ann. .023 1990 & may aggravate pre-existing term Supp.2000). By agreement Rule 11 elimi- conditions or render them untreatable nating as defendants the Human Services immediately endangering without the life Board, Commissioner, Department, of the mother. parties apparently agree that it is the who from Women suffer these conditions Department of Health that oversees the face A pregnant increased health risks. Program Medical Assistance and that the experiencing hypertension woman at a is Department of in- Human Services is not risk for or higher bleeding strokes disor- pro- volved in the administration the Severe, pregnancy-induced ders. forms of gram. See Tex.R.Civ.P. 11. seizures, hypertension can cause abdomi- Medically Necessary Abortions nausea, in- pain, nal and and also At issue in this case are abortions that mortality Preg- crease the maternal rate. fall in purely the zone between elective higher nant women with diabetes are at a sought abortions and those because the hypertensive disease developing risk of pregnancy rape resulted from or or incest higher complications and have rates of jeopardizes the mother’s life.6 Low-In- pregnancy-related Epileptic deaths. wom- come do not argue Women that low-income experience frequent en more seizures and Texans have a all right funding for high birthing are at a risk of infants with Instead, they urge abortions. that the genetic defects. same necessity standard medical applies reproductive all other health can Pregnancy aggravate pre-exist- also apply care treatments should to abortion illness, rec- ing leading mental doctors to services as well. ommend abortion for some women who Nonetheless, from such phy- abortions a suffer conditions. While are funded when the will not fund those abortions sician determines that-the mother’s is State life risk by they though pregnancy threatened are un- even increases the pregnancy, cases, Also, many in- rape psycho- funded in other absent or of mental breakdown. types exempted Medicaid the Medical Assistance These of abortions are those ered proscription from the Amendment’s on Program. funding and are cov- federal for abortion thus intends it. Low-Income ever to revive tropic medications used treat mental fetus, to a that a could revive pose illness risks so Women counter that State time, funding unable to afford an abortion and the program any woman who is may be forced to choose between her own violate the Texas again restrictions would physical well-being and the lawsuit mental health “At time a is constitution. addition, In an filed, of her fetus. unwanted the facts have ripeness asks whether healthy pregnancy can cause an otherwise injury that an has developed sufficiently so depression, anxiety, experience occur, woman to rather likely than occurred behavior, and self-destructive as well as contingent Patterson v. being or remote.” other of mental Parenthood, forms disturbance. Planned (Tex.1998). case, Low- present In the may recommend Although physicians their claims premise Income Women in to protect abortion order the mother’s Act Health against Maternal/Infant situations, health in of the above-listed will possibility opt application Amendment at some funding program to renew for this expenditure money of state prevents ripe point the future. With no claim on those abortions unless the mother’s life us, any opinion might before we render immediately by continuing threatened Health Act regarding the Maternal/Infant she was pregnancy or unless the victim abortion at this time would be rape virtually any or incest. For other merely agree with State advisory. We treatment, physician’s health a determina- ripe, these are not we claims necessity tion of medical suffices for reim- opinion therefore them. Our will dismiss through bursement the Medical Assistance against claims .leveled consider Program. Only when the recommended placed the restrictions on the State’s Med- patient is the treatment is abortion re- icaid-funded health services. quired something to demonstrate more than necessity. outset, important At the it is to establish Despite parameters of this case. DISCUSSION volatile aroused the sub- public debate Low-Income Women and the State us, ject appeal matter this is not before each judg motions for summary submitted to have an right about woman’s abortion. ment, stipulating that there are materi claim Women do not Low-Income al fact dispute. issues trial court they to state all right have granted the motion. State’s When both Rather, they claim that abortions. summary judgment sides move for and the withholding medically for neces- funding trial grants court one motion and denies funding every sary abortions while other other, the summary judg we review medically necessary reproductive health presented by ment both evidence sides sexes, impermis- for service both State questions presented. determine all Com sibly weighs in a woman’s exercise of on 77, Agan, missioners v. 940 Court choice, discriminating against her (Tex.1997). error, 81 If we find then we noted, if process. As another court has judgment render the that the trial court legislature opposite poli- had made Id. should have rendered. all cy choice and funded abortions but matter, poor wom- refused to fund medical care preliminary As childbirth, that the claims en who chose the same concerns argues against State ripe discriminatory government Health Act about treat- are Maternal/Infant Minn. v. is now defunct. ment would arise. Women program because the Un- (Minn.1995). Gomez, 17, summary judgment 542 N.W.2d 19 controverted evidence Thus, present case involves presented program was has been 1991, medically funding since and narrow issue of neces- unfunded and inactive not be sary there no indication that the abortions and should construed 696 overarching

as an comment on the morali- state statutes or offer constitutions broad- ty of abortion or the existence of a wom- protection rights er of individual than does an’s to choose right abortion. the United States Constitution and have medically necessary found that abortions prevail appeal,

To this Low-Income Women must establish in this context that should be funded if the state also funds greater pro the Texas constitution offers medically expenses necessary related to rights tection of individual than does its childbirth.8 counterpart, already federal for it has been Turning challenge brought to the under sought by determined that the relief Low- Constitution, the Texas Low-Income Income is not available under Women by funding Women claim that abortion A challenge United States Constitution. similar to the circumstances, one raised Low-Income only in the most limited of brought Women was under the federal while all other childbirth-related constitution, and the United States Su standard, services under a less restrictive preme Congress’s Court held that refusal impermissibly the State with a interferes to fund medically necessary abortions did right woman’s to choose whether to have liberty not violate the recognized interests abortion, thereby violating an right by Roe v. progeny, Wade7 its nor did it privacy equal protection and the guaran violate the First Amendment establish Constitution, tees of the Texas as well as equal ment clause or the Fifth Amendment Equal Rights Amendment. Tex. Harris, protection clause. See 448 U.S. at Const, I, §§ (equal protection), art. 3a 3 318, 326, 100 S.Ct. 2671. Since Su (ERA); Texas Employees State Union v. decision, preme opponents Court Dep’t Mental Health & Mental challenged Amendment have abor (Tex. Retardation, 203, 746 S.W.2d 205 tion-funding restrictions under state con 1987) (recognizing that while the Texas majority stitutions. The of states that Constitution contains no express guarantee have examined similar Medicaid right privacy, restrictions have determined that their of a several provisions 114, 436, (1973). 7. 410 Panepinto, U.S. 93 S.Ct. 705 Ctr. v. W.Va. 446 S.E.2d 191 658, (1993) (because 667 state act neu must Reprod. Rights 8. See Committee to Defend poor, trally providing care when 252, 866, Myers, Cal.Rptr. 29 Cal.3d 172 625 funding restrictions that favor childbirth over 779, (Cal.1981) (funding P.2d 798 restrictions infringe abortion constitutional express right procreative offended choice rights). Department But see Doe v. Soc. Maher, constitution); in California Doe v. Servs., 650, 166, 439 Mich. N.W.2d (1986) Conn.Supp. A.2d (1992) (prohibition public on use of funds to (funding therapeutic restrictions on abortions pay necessary save for abortion unless statutory provisions pro violate of Medicaid equal protection mother's life does not violate gram, as well as Connecticut constitutional constitution); guarantees Hope of state v. Pe rights process equal protection); of due rales, 811, 634 83 N.Y.2d 611 N.Y.S.2d Fin., Secretary v.Moe Admin. & 382 Mass. (1994) (funding pregnan N.E.2d (1981) (Medicaid 187-88 417 N.E.2d medically cy-related services but not neces impermissibly restriction burdens right protected by sary process to choose abortion abortions does not violate due Massa constitution); guarantee pro chusetts constitutional cess); of due clause of Rosie J. v. North state Gomez, 247, Res., v. Women Minn. 542 N.W.2d Dept. Human 347 N.C. Carolina of of 17, (Minn. 1995) (funding 31 restrictions im- 535, (1997) (funding 491 S.E.2d 537-38 right permissibly infringe upon woman's scheme that favors childbirth over abortion constitution); privacy protected by Minnesota constitution); does not offend North Carolina 287, Byrne, Right to Choose v. 91 N.J. 450 Welfare, Department v. Pub. 509 Pa. Fischer of 925, (statute (1982) limiting Medic A.2d 941 293, 114, (1985) (funding 502 A.2d 117-18 equal pro aid for abortions violates protection equal restrictions do not violate right Jersey in New constitu tection found guarantees Equal and non-discrimination or tion); Right Mex. v. New Choose/NARAL Pennsylvania Rights Amendment of constitu Johnson, 788, 841, 126 N.M. 975 P.2d 844-45 tion). (N.M.1998) (funding restrictions violate state Amendment); Rights Equal Health Women’s

697 “more the ERA is has held that implicitly court Rights combine to the Bill pro- provides specific more extensive and privacy”). protected create “zones Mc- In re provisions. those tection” than our inclination of the occasional Given (Tex.1987). 696, Lean, 697-98 725 S.W.2d the Texas Constitution courts to construe render it otherwise would To construe counterpart, broadly than its federal more guar- pre-existing those ERA redundant of argument merit to the possible there is meaningless. it Id. and make antees privacy guar and equal protection Texas are found Constitution antees along ERA elevates sex— the feder than those contained in stronger race, color, creed, ori and national with Hanlon, LeCroy v. al constitution. See classification, gin suspect a—to (Tex.1986) (“The 335, fed 713 S.W.2d persons for different law that classifies individu sets the floor for eral constitution subject to on the basis of sex is treatment al state constitutions establish rights; 698; scrutiny. Id. at Mercer judicial strict Morales, v. 826 S.W.2d ceiling.”); State Trustees, 201, 206 538 S.W.2d v. Board (“[T]he 1992) 201, (Tex.App. - Austin 1976, (Tex.Civ.App. [14th Dist.] accords individuals - Houston Texas Constitution n.r.e.). A that discrimi writ ref d statute free greater safeguards personal to their the ERA on the of sex violates nates basis does.”), counterpart federal dom than its the classifica rev’d, prove can unless the State grounds, on other 869 S.W.2d unique required by tion is somehow (Tex.1994). We do not need consider characteristics the sexes.9 physical however, because the questions, these Mercer, physical 206. If 538 S.W.2d at a provides ERA sufficient basis resolv justify equali the denial of characteristics ing this dispute. a need demonstrate ty, then the State Equal Rights Amendment otherwise, statute; rational basis for the ERA “Equality The Texas states: under no re must show there is less the State abridged shall not be law denied protect compelling a state way strictive sex, race, color, creed or nation- because of McLean, 698; at interest. See Const, I, § al Tex. art. 3A. The origin.” Mercer, at 206. 538 S.W.2d overwhelmingly passed by ERA Texas was has Supreme Court The United States voters, adopted who the amendment obligate XIX that Title does not held margin on November 1972. four-to-one for which pay for medical services Wayne Kilgarlin and Banks William available, is not but federal reimbursement Tarver, Equal Rights Amendment: medically include a state choose to Lib- Action and Individual Governmental (1990). plan. in its Medicaid necessary abortions Because erty, 68 Tex.L.Rev. 1545 McRae, n. at Harris v. 448 U.S. both the United States Constitution permit- it is Although 2671. 100 S.Ct. process had due the Texas Constitution medically necessary abor- pay for ted to equal protection guarantees before funds, Texas exclusively with state tions adopted, supreme ERA was crime, sodomy a permit homosexual Acknowledging which makes that the ERA does prohibition it violates the ERA. exceptions to the because some limited unconstitutional 14-99-109-CR, discrimination, State, slip op. physi in addition to No. sex Lawrence exception, (Tex.App. the Mercer court cal-characteristics WL 729417 - Houston recognized pet.). a defense for sex-based dis also In so June [14th Dist.] required by constitu that is other holding, crimination that the state had not court held rights compelling tionally protected or “other justify compelling reasons to "other shown Trustees, v. wrought by reasons.” Mercer Board the discrimination the sex-based of (Tex.Civ.App. S.W.2d did not slip op. at 7. The court Id. statute.” - Houston n.r.e.) writref'd [14th Dist.] exceptions because Mercer reach the other applicability raised the state. was not appeals in their Recently, fourteenth court of the code, slip op. n. 3. Id. at 5 penal Houston held section 21.06 race, color, sex, religion, has chosen not to do so. Low-Income because of or national origin. Women insist that the See Tex.Civ.Prac. & Rem. adoption State’s of (West § Code Ann. 106.001 Supp.2000). Amendment restriction Examining legislative history of that Medicaid-eligible equality denies women of statute, supreme court noted that its rights by applying the same standard predecessor statute had been amended in necessity of medical to men and women. a prohibited include sex as basis initially argues The State that its discrimination; this amendment was pay medically necessary refusal during legislative added the same session deny equality abortions does not under the put which the voted to urges law. It that Texas refuses to fund Toungate, ERA on the Texas ballot. medically necessary abortions for all indi S.W.2d at 369. The court went on to note citizens, gent If regardless gender. of a that a further amendment 1983 illumi- abortion, man an require argu were nated what the legislature meant “be- goes, ment would State refuse to fund cause of ... Id. Studying legis- sex.” the treatment unless his life in dan were history, lative court supreme found ger. fallacy argument plain, of this prohibition against sex discrimina- for at it is biologically impossible this time tion section 106.001 had been derived a pregnant require for man to become Act, from the Human Rights now codified protect an abortion to his health. Under in the Texas Labor Code sections 21.001- Program, the Texas Medical Assistance Supp.2000). .306 1996 & Id. The only patient who ever has to demon Rights provides Human Act that sex dis- something strate more than a ne crimination includes discrimination based cessity to pregnant Id.; receive treatment is a on pregnancy. Tex.Lab.Code Ann. Every Thus, woman. other affecting § treatment 21.106. section 106.001 of the Civil reproductive health is funded for both sex Practice and Remedies Code shares a com- Act, origin Rights if mon with the Human medically necessary. es determined to be and “because of sex” has the same mean- apply Amendment does not Toungate, in both ing codes. 958 S.W.2d equally to men and women. Further, at 369. the court tied the statu- tory definition of “because of sex” Pregnancy Discrimination as Sex Dis- ERA, legislature’s drafting of the which crimination analogous language. contains Id. Accord- Legislature plainly The Texas has stated ingly, proclama- we that the ERA’s hold that in the employment context “discrimi “[ejquality tion that law under the shall nation because of or on the of sex basis sex abridged not be denied or because of sex” includes discrimination because of or on on the of proscribes discrimination basis childbirth, pregnancy, of or a basis pregnancy. related medical condition.” Tex.Lab.Code is in line with holding We note our (West 1996). Ann. 21.106 The Texas adopted the view of sex discrimination Supreme has also indicated that dis Court by Congress by majority both a pregnancy crimination based on form passed In Congress states. prohibited by of sex-based discrimination Act, amending Discrimination Pregnancy section 106.001 of the Civil Practice and Rights Title VII of the Civil Act of 1964 Remedies Board Trustees Bas Code. prohibit discrimination on the basis Toungate, trop Indep. Sch. Dist. v. pregnancy. Newport Shipbuild- News (Tex.1997). 365, 369 EEOC, Dock 462 U.S. ing Dry& Co. Toungate challenge involved a to a 103 S.Ct. 77 L.Ed.2d 89 (1983). code un the Act hair-length grooming Specifically, “[t]he school’s states 106.001, the basis of prohibits der section which dis terms ‘because of sex’ ‘on sex’ ... because of or on the basis by public employee crimination officer or include

699 construe it us to childbirth, by require it medi- established or related pregnancy, of 2000e-(k) differ- reproductive or deny sexual § so as 42 conditions.” U.S.C.A. cal Mercer 538 the sexes.” 1994). ences between (West Supreme The United States Nonetheless, it does not at 206. S.W.2d the Act Congress passed that Court noted essen- say, as the State simply suffice con- that Court’s specifically to overrule can does,- only women that because tially v. Electric Co. trary conclusion General re- characteristics physical get pregnant, 125, 401, Gilbert, 50 97 S.Ct. 429 U.S. by effected quire the distinction (1976), that the exclusion of L.Ed.2d 343 case, If dis- that were Amendment. from an em- disabilities pregnancy-related would pregnancy based on crimination disability plan did not constitute ployer’s discrimination, and we sex never constitute New- Title VII. sex discrimination under that statutes that the cases and know from News, 678,103 2622. 462 U.S. at S.Ct. port is not the law. Likewise, have en- many legislatures 1978, pregnancy rape charged of equating acted similar statutes In a man accused discrimination, impossi- it criminal statute made with sex and that the discrimination and perpetrator to be the sex- ble for a woman many interpreted state courts have on sex vio- that discrimination based this statutes to include discrimi- discrimination State, 527 Finley ERA. v. lated the Texas pregnancy.10 basis of nation on the 553, (Tex.Crim.App.1975). 555 S.W.2d Physical-Characteristics Exception agreed that appeals of criminal The court state’s Having determined ex- perpetrator definition of the statute’s medically necessary pay refusal women, held that the different but cluded against pregnant abortions discriminates justi- characteristics of the sexes physical pregnancy women and that discrimination “Hymen distinction: fied the sex-based discrimination, sex we next form of victims, injury rape uterine to female inquire physical whether characteristics physi- pregnancy, possibility require thus excuse—that sex-based —and forcing a woman ological difficulty of proponent of a law distinction. Unless her all intercourse with man to have sexual prima can rebut a facie ERA case dis- justification for the sexual suggest a showing unique physical characteris relying In on this tinction.” Id. at 556. treat require tics of the sexes different exception, the court physical-characteristic law, employ a “strict ment under the we link be- justifiable for a specifically looked scrutiny” reviewing standard in a chal the basis the classification made on tween State, lenged statute. Messina purposes legitimate and the sex 1995, (Tex.App. - Dallas object court held that statute. The Mercer, writ); 206. 538 S.W.2d at assaults prevent was to rape statute usually perpetrated by men adjudicate are that are “For us women women, physi- and so the different against it would be men would be as futile as justified the of the sexes ERA cal characteristics rights Neither the nor the absurd. (Colo.1988) See, (Lexis (employer e.g., § 759 P.2d Alaska Slat. 18.80.200 sex, 1998) (includes pregnancy, parent- and discrimination statute violated state ERA prohibited on list of bases for discrimi- excluding pregnancy-related hood nation); medi- costs of 12926(o) (West § Cal.Gov’t Code plan covering oth- from benefits cal treatment (“sex” Supp.1999) defined in discrimina- as conditions); v. De- Allison-LeBlanc er normal childbirth, pregnancy, or includes tion statute Corrections, Safety partment Pub. & pregnancy related to medical conditions childbirth); (discrimina- (La.Ct.App.1995) So.2d § 4572-A Me.Rev.Stat.Ann. tit. pregnancy is unconstitutional tion based on 1989) (sex discrimination includes discrimination); Elec. Co. Massachusetts sex conditions); pregnancy and related medical Discrim., Against Comm'n v. Massachusetts (1995) (employ- N.H.Rev.Stat.Ann. 354A:7 (1978) Mass. 375 N.E.2d 375 (discrimination pregnan- statute includes ment discrimination pregnancy dis- is sex based discrimination); Colo- cy in of sex definition crimination). Co., Rights v. TravelersIns. rado Civil Comm’n pregnant justifies of in the to women that the denial perpetrator sex-based definition necessary statute. See id.11 medically only of care that wom- patients require. en Applying Finley, we hold that pointing particular phys in addition to to a general Men and women who meet the that ical characteristic illustrates how the their and medi- regarding criteria financial different, sexes are the State must also similarly in their cal needs are situated singling show that out that characteristic Medically for eligibility Medicaid services. goals being furthers the of the statute necessary treatment is to all available challenged. physical-charac Unless the excep- Medicaid-eligible patients, with one narrowly strictly exception teristic and Hyde funding tion: the Amendment denies applied, exception wholly can swallow medically necessary for abortions. This prohibition against the ERA’S discrimina gender-based operates restriction to the tion based on sex. The State cannot rebut disadvantage of women who are otherwise simply showing a discrimination claim for hold eligible Medicaid services. We different; that the sexes are the State adoption Hyde that Texas’s of the Amend- must show that the difference be also singles ment out for less favorable treat- tween the sexes necessitates different gender-linked ment a that condition accomplish purposes treatment to of no unique comparable to women. There is Specifically, may the law. the State not medically necessary on services restriction imposed by defend the discrimination relating physical characteristics that are merely by stating Amendment unique to men. This restriction is not relat- proposition get obvious women purposes ed to the stated of the Texas pregnant. expla There must also be some Program, Medical Assistance which is to why physical nation of characteristics qualified offer medical assistance to all pregnancy justify require of different needy importantly, citizens. More health treatment under care the Medicaid becoming preg- of physical characteristic expla law. The has offered no such State may profound consequences nant have nation. mother; may aggravate the health of the it Program The Medical Assistance was pre-existing conditions such as heart dis- “provide established assistance anemia, ease, hypertension, epilepsy, needy on behalf of individuals” and to en- may hamper treatment of other serious “adequate high quality sure that medical conditions such as cancer. may health care be made available to all Hyde is a Amendment classification children and adults who need the care disadvantage many to the operates financially pay are not able to for it.” program the Medicaid was persons 32.001, §§ Tex.Hum.Res.Code.Ann. .002 all of the dis- designed to serve. Because (West 1990). The effect of the women, we hold advantaged persons are type deny funding Amendment is to for a violates the restriction of treatment that a doctor deem medi- justified by any ERA not and is necessary. singles partic- out one cally It pur- to the physical characteristic related procedure ular medical and denies pose program. it for that treatment even when is medical- require not necessary health. The federal constitution does ly patient’s to fund a woman’s exer- peculiar government characteristic physical There is mining physical characteristic will years itself when a 11. A few later court reversed discriminatory To statutory an otherwise statute. by holding that definition of save rape that other courts have failed intercourse” in the statute does the extent "sexual Finley methodology, perpetrator. apply the we decline limit the sex of the See Ex Dallas, See, Groves, (Tex.Crim. e.g., Fare parte follow them. MJR's Dallas, City 792 S.W.2d App.1978). way This in no invalidated the Inc. v. denied). methodology suggested Finley (Tex.App. deter- writ - Dallas are medical- abortions that that denies an abor ban right to of her constitutional cise 317-18, health. maternal necessary preserve McRae, ly 448 U.S. Harris v. tion. health, it in fetal interest for the State’s As Texas choos 2671. But when S.Ct. interest that the State’s well established necessary services medically provide es to by tempered life is unborn protecting in the ERA mandates indigent persons, to including rights, individual the mother’s way in a that discrimi it not do so that own health. See her right protect to the gender. of nates on account Casey, v. 505 U.S. Parenthood Planned Scrutiny Strict 2791, 846, 120 L.Ed.2d 833, 112 S.Ct. suspect to a clas ERA elevates sex The Wade, (1992) v. Roe (plurality opinion); sification, has stat supreme the court and 113, 164, 35 L.Ed.2d 93 S.Ct. 410 U.S. distinguishes a classification ed that when (1973). protect- in state’s interest basis, “the suspect on a people between the unborn clashes life of ing potential the scrutiny, subjected to strict state action right fundamental the woman’s with be narrow that the classification requiring Wade, v. choice. In Roe procreative govern compelling to serve a ly tailored prior held that to Court Supreme U.S. League Richards v. ment interest.” may regu- impose the state viability, fetal Citizens, Latin Am. 868 S.W.2d United only protect on abortion lations (Tex.1993);12 Lawrence see also mother, protect not to of the health —State, S.W.3d-,-, No. 14-99- v. Wade, 410 at v. U.S. fetus. Roe unborn 109-CR, 7, 2000 WL 729417 slip op. at 705; Casey, 505 164-65, see also 93 S.Ct. June (Tex.App. [14th Dist.] - Houston 2791. The Roe at S.Ct. U.S. (“[T]he yield ERA not pet.) does interest that the state’s decision held Wade interests.”). compelling state except compelling fetus becomes protecting time that viability; before after unable to Because the State is bal- fetus must be in the unborn interest any unique physical characteris show that for the mother’s against concerns anced justifies discriminatory tic of the sexes health, protect not the state funding restriction on women effect of the mother’s expense of the at fetus abortions, medically necessary we seeking 879, 112 at S.Ct. Casey, 505 U.S. health. challenged statute to review subject the 164-65, Wade, 2791; at 410 U.S. Roe v. See scrutiny under the strict standard. for abor- denying funding By 705. S.Ct. Mercer, at 206. Under 538 S.W.2d medically neces- doctors deem tions that standard, is al sex-based discrimination attempt restrictions sary, funding that it only if the State can show lowed at in the fetus interest protect the State’s interest compelling a serves mother’s health of the expense McLean, restrictive manner. See least under the impermissible This is welfare. Mercer, 698; at 538 S.W.2d 725 S.W.2d at Casey. v. Wade framework of Roe 206. 2791; 879, 112 at S.Ct. Casey, 505 U.S. 164-65, Wade, legit that it a 93 S.Ct. urges The State has 410 U.S. at Roe v. carefully both fetal tread more protecting imate state interest The State must health, un- may per it of the and that the interests protecting and maternal when medically born; favors ban on implement policy a blanket missibly narrowly tai- protect necessary those abortions is over abortion childbirth interest. However, advance the State’s has not lored to the State interests. means available are less restrictive in There how its asserted interest demonstrated abortion, such childbirth over encourage by a protected health is maternal suspect to a edged classification, ERA elevates sex protection equal an 12. Richards involved McLean, we League Latin 725 S.W.2d challenge. United Richards v. Citizens, (Tex.1993). scrutiny analysis Be- here. 868 S.W.2d 306 apply Am. the same strict supreme court has also acknowl- cause as continuing prenatal to fund care and tance to the needy, poses it an active childbirth expenses and stepping-up health threat to some women’s health. Texas’s and education prevent efforts to unwanted implicit adoption Amendment pregnancies. These fur- solutions would does not narrowly serve a compelling state ther the State’s interest in encouraging interest.13 birth over abortion without simultaneously Availability Remedy discriminating against women who require an abortion to maintain their health. argues State the relief sought by Low-Income Women is barred

Nor can the sex-based discrimination ef- provision in the Texas fected Constitution justi- Amendment be that states: “No money fied as shall be drawn serving compelling a state fiscal from policy. Treasury the but in pursuance Low-Income Women focus on the fiscal nature of funding specific the appropriations by restriction to made law.” Const, argue only that the state VIII, interest advanced Further, § Tex. art. 6. a funding is scheme to public limit expen- legislature is barred from granting “by ditures. The State has not established otherwise, appropriation any or amount of savings that the resulting from not funding State, money out of the Treasury of the to medically necessary abortions is greater individual, claim, any pretend a real or than the costs associated with the medical ed, when the same shall not have been expenses the Medicaid-eligible woman provided pre-existing law.” Tex. would incur bringing pregnancy to Const, Ill, 1997). art. term dealing or with the costs to her own urges State that by granting injunction health in doing so. Low-Income Women Women, sought by Low-Income this Court point to evidence that carrying a child to would impermissibly require the Medical term, especially in problem a pregnancy Program Assistance to fund abortions risk, where the mother’s health is at is legislature where the has appropriated not costly more than an abortion. if But even funds for them and where there no pre is funding restriction on medically neces- existing authorizing law appropria such sary exclusively abortions with state funds disagree. tion. We money, would save the State the State has pointed why to no reason this fiscal sought by burden The relief Low-Income Wom- must by pregnant be borne only. women funding medically necessary abor- en— A statute to seeking conserve state re- tions—cannot be characterized as a new sources must be narrowly tailored not to appropriation. They do not ask for a new deny medically necessary treatment on the appropriation of funds to the Medical As- basis of sex or pregnancy. Rather, Program. sistance they seek de- claratory injunctive against relief un-

Perhaps most compellingly, there is dis- placed constitutional restrictions on the sonance goal between the of the Medical use of already appropriated pursu- Program Assistance funds and the effect of the pre-existing ant to a authorizing law funds funding By delaying pre- restrictions. to be used for health care under venting pro- women obtaining medically from a treatment, Therefore, necessary gram. we find no constitution- abortion-funding restriction not fails al violation in granting request- to advance the the relief in providing State’s interest medical assis- ed. reasons,

13. For years these same we doubt that the some nine before the enactment of the funding restrictions on abortion could survive It Amendment. is therefore difficult for scrutiny even under a rational-basis test. The point policy the State abortion as the provisions statutory being challenged are si- provisions statutory rationale behind the that fact, provi- lent as to abortion. In correlative pro- limit the benefits available under the place sions have been in since the Medical gram. Program Assistance was established in en,” scrutiny Response not survive strict to the Dissent and it does analysis. dissent, we not response In do that the ERA creates a constitutional

hold do we that entitlement funds. Nor hold CONCLUSION poverty suspect ERA makes a classifi- presently against claim Because Rather we hold that because cation. pro- Act unfunded Health Maternal/Infant suspect sex ERA elevates classifica- part we vacate that gram ripe, tion, may not the state fund that concerning against claims judgment that services in a manner has and dis- program and its administrators discriminatory on women effect absent hold miss cause. We portion ap- interest compelling some de- scheme that Medicaid in the least restrictive manner. plied medically treat- necessary nies McLean, We 725 S.W.2d find reimbursed the federal ment is not justifies compelling state interest that de- form impermissible effects an government medically abortions. Nei- nying necessary against pregnant of sex discrimination ther does dissent. Because the State has not shown women. Moreover, recognizes the that dissent tai- statutory narrowly that the scheme is of the legislature’s the enactment interest, compelling to lored serve a a Program has dispa- Medical Assistance implicit adoption we hold that the State’s impact “Although rate on women: im- of the Amendment the Tex- violates these almost pact of events is felt exclu- there- Equal Rights as Amendment. We women, sively by indigent the ERA does portion the trial fore reverse that change identifying not calculus of a State; court’s in favor of we judgment suspect Poverty is classification. not a declaratory granting the judgment render suspect classification in Texas.” Post injunctive requested in Low- relief might This if the 706. be true federal summary Income motion for Women’s funding disadvantages restriction all indi- por- judgment. We further remand that Texans it not. gent equally; does In the Low-Income concerning tion the cause face of restriction’s admitted discrimi- attorneys’ costs request Women’s women, poor against nation dissent in fees to the trial court consideration wrongly asserts ERA “does light opinion. this change identifying our calculus of a sus- classification.” pect What ERA does YEAKEL, Justice, dissenting. elevate suspect is sex a classification. I respectfully dissent. Id. Whether discrimina- not sex-based violates equal protection tion federal ap- agree majority I with the that this guarantees, subject it privacy is strict is a to have peal right not about woman’s ERA. Id. scrutiny under the Texas agree there is an abortion. I further that us the Ma- ripe regarding There is no entitlement to funds under claim before ERA; funding. Act there is no constitutional obli- Health abortion ternal/Infant indigent. majority ways to care for and I gation part There is Where the Legislature, mandate to over the Texas only programs enact that do whether establishing Texans on the the Texas Medical Assistance against not discriminate Program,1 impermissibly discriminated of sex. The Texas Medical Assis- basis against on the basis of their sex Program tance does not discriminate women Texans; matching devising accept indigent impact plan all its federal against It is funds restricted their use. exclusively by indigent almost wom- that are “felt 1967, repealed and codified at Tex.Hum.Res. Act of 60th since 1. See Medical Assistance 1-24, R.S., 151, & §§ Leg., §§ ch. 1967 Gen.Laws Code Ann. 32.001-.052 (Tex.Rev.Civ.Stat.Ann. 695j, 695j 1, Supp.2000)). arts. — that undisputed provided pursu- Hyde services Amendment.4 Id. at 100 S.Ct. ant to the Medical Program Assistance are In addressing Amend- limited to for which the can those State ment, the Court noted that the Due Pro- matching receive federal funds. Tex. cess “affords protection against Clause un- 32.024(e) (West Hum.Res.Code Ann. warranted government interference” but Supp.2000). disputed Nor is it compel does not an “affirmative Amendment,” “Hyde in the form currently obligation” procedures to subsidize medical Court, prohibits before this reimbursement 317-18, for indigent women. Id. at except for abortion services cases of S.Ct. 2671. The also Court held rape or incest or pregnancy where the Hyde Amendment does not violate the con- threatens the mother’s life. See Omnibus guarantee equal protection stitutional Emergency Consolidated & Supplemental because the amendment is not “predicated Appropriations Act of Pub.L. No. suspect 322-23, on a classification.” Id. at 105-277, 508(a), 509(a), §§ 112 Stat. Specifically, S.Ct. 2671. the Court (1998). question 2681-385 is whether observed that principal impact “the the Equal Rights Amendment to the Texas Hyde Amendment falls indigent. on the Constitution compels ap- But that fact does not itself render the propriate beyond state funds those neces- invalid, constitutionally restriction sary to entitle the State to receive federal repeatedly for this Court has held if matching funds the federal funds alone, poverty, standing suspect is not a expended compensate physicians not be classification.” Id. at 100 S.Ct. 2671 who perform procedure a medical that can Valtierra, (citing James v. 402 U.S. performed be aon woman. See Tex. (1971)); S.Ct. 28 L.Ed.2d 678 accord Const, I, § art. 3a (“Equality under the Roe, 464, 470-71, Maher v. 432 U.S. 97 law abridged shall not be denied or be- 2376, (1977). S.Ct. 53 L.Ed.2d 484 sex, race, color, cause of creed or national McLean, In In re origin.”). way, legis- Supreme Said another the Texas did the lature violate the ERA2 Court held that ERA when it did no the is “more exten minimally more than what required provides was to sive and specific protection more obtain for the citizens of Texas federal than both the United States and Texas due funds that are restricted in their use? Be- process equal protection guarantees.” cause, majority, unlike the I (Tex.1987). believe that 696, 725 S.W.2d 698 The court legislature the the acted within constitu- generally referred to the amendment’s tion, I respectfully dissent. guarantees” “added and held that ERA “elevates sex to a suspect classifica

The Amendment neither violates suspect tion.” Id. Because sex is a classifi the Due Process nor the Equal Protection cation, subject sex-based discrimination is Clauses of the United States Constitution. judicial to scrutiny. strict Id. “Under [the McRae, 297, 318, 326, Harris v. 448 U.S. judicial scrutiny, model of strict (1980). Texas] 2671, 100 S.Ct. 65 L.Ed.2d 784 such discrimination is allowed when Supreme The Court has held that the fed- the proponent of the discrimination can eral program3 Medicaid assistance does prove that there compel other manner to participating pay state to for protect compelling that state’s interest.” medical services for which federal reim- TVs., by (citing bursement is unavailable virtue of the Id. v. N. Mercer Board of however, sex-equality provi- participating may, 2. I use "ERA” to mean the 4.The in- clude unfunded services within its own Med- Equal Rights sion of the Texas Amendment. Const, McRae, 297, plan. 448 I, icaid Harris v. U.S. See Tex. art. 3a. (1980); 311 n. 16 see also Omnibus Consoli- Emergency Supplemental Appropria- dated & §§ 3. 42 U.S.C.A. 1396-1396v & 1992 1999, 105-277, No. tions Act of Pub.L. Supp.1999). 2681, 509(b), (c), §§ 2681-385 112 Stat. (1998).

705 (Tex.Civ. than both the United ISD, protection cific 538 201 Forest process equal 1976, Texas due ref'd States and writ App [14th Dist.] . -Houston McLean, 725 n.r.e.)). guarantees.” protection one majority The finds S.W.2d at clearly tier establishes McLean ERA holding that area in its such by Texas scrutiny to be observed courts the basis “proscribes discrimination on applying in ERA to sex-based-discrimi at 698. Supra pregnancy.” recog greater than nation cases legislature no evidence that the There is by applying federal courts when nized design legislation and enact set out to Protection Clause of Fourteenth Equal program “To create medical-assistance Amendment similar cases. with abor- of state funds for prohibited ... the use challenge, classifi stand constitutional Rather, important procedures. tion by gender must serve cations program required minimum objectives and must sub created the be govermnental fed- of those receive federal Medicaid funds. stantially related to achievement Boren, 190, Craig eral means of the objectives.” Congress, v. 429 U.S. 451, (1976). Amendment, consistently has restricted L.Ed.2d 397 97 S.Ct. 50 majority’s use funds. The heightened Court of those Supreme possibly holding Texas cannot today in means that the federal review standard somewhat appro- accept largesse v. without Virginia Congress’s States when Court United funds, those re- gen priating beyond opined, “Parties who seek defend additional expand the Medical quired Congress, governmental der-based action must dem majority finds Program. The ‘exceedingly persuasive justifi onstrate an Assistance obligation for that 518 U.S. ERA an affirmative cation’ action.” (1996) I man- no such government 116 135 L.Ed.2d 735 action. find S.Ct. T.B., The amendment (citing J.E.B. v. Alabama ex rel. 511 date the amendment. 127, 136-37, power the State. 128 is a limitation on the U.S. S.Ct. (1994); pre-existing than the Mississippi specific Univ. It is more L.Ed.2d 718, 724, guaran- Hogan, equal-protection due-process Women U.S. (1982)). guar- clear tees that it makes that these S.Ct. L.Ed.2d standard, both But Whatever federal McLean antees extend to sexes. deny Program for Medical does scrutinizing raised the bar Texas state Assistance had right of she deprive any the ERA made a woman action under and certain Con- ERA sex to enactment. pro program’s has elevated before the in the states comparable gress race Medicaid funds to tected status to federal offered on their use and Regents the Univ. restrictions analysis. See Cal. with certain Bakke, Texas, 265, 291, S.Ct. 2733, legislature, accepted through its U.S. (1978) (“Racial the and them burdened with restrictions. 57 L.Ed.2d ethnic any inherently are sus distinctions sort pro generally The Constitution exacting and thus call for the most pect “public from legislature granting hibits the determination.”); Lucas v. judicial United moneys” to individual. Tex. Const. (Tex.1988) States, 705 n. III, § In order medi provide art. to (“Pursuant C.J., to (Phillips, dissenting) the needy persons, cal care for certain Amendment, Equal Rights strict scru the Tex. constitution was amended. all tiny applied ... in Texas to classifica is III, § interp. 51-a commen Const. art. sex, the classes involving protected tions (West 1997). The autho tary legislature’s color, race, origin.”). creed and national Pro rization the Medical Assistance for the Texas However, is in section 51-a of day gram for found McLean left another pro Legislature may “The guarantees” of the “added Constitution: identification ... for care areas, the Law medical any, in if ERA is vide General and what may Legislature persons. “provides spe- needy more for “more extensive” and prescribe such eligibility require other based may discrimination be sustained and participation ments for in these programs specifically protection govern- affords from as it deems appropriate may and make sex, person’s ment action based on a appropriations out of state funds for such amendment provide does not an entitle- III, purposes.” § Tex. Const. art. 51- ment to funds or create an affirmative a(b).5 provides The constitution further obligation constitutional to ensure that all that, if section 51-a’s “limitations and re persons have the financial resources to strictions” are found to be in conflict with obtain medical services. Because law, federal “then that event the ERA itself does not create an affirmative Legislature specifically authorized and obligation to fund the medical services left empowered prescribe such limitations unfunded the Medical Assistance Pro- and restrictions and enact such laws as gram, there is no need to scrutinize that may necessary be in order that such feder program to if compel- determine there is a al matching money will be available for ling justify state interest the legisla- ... medical care needy or on for behalf of ture’s failure to fund the services. 51-a(c) III, persons.” Tex. Const. art. added). (emphasis specifical Section 51-a Supreme Court has held that the ly provides the constitutional foundation restrictions of the Amend- allowing legislature to seek federal pass ment federal constitutional muster. Program. funds for the Medical Assistance Congress incorporated has these restric- restricting In provided services under tions into the Medicaid pro- assistance the Medical Program Assistance to those gram. When Texas participate elected for which matching federal funds are availa program such enacted state Medi- ble,6 legislature acted within the au cal Assistance Program, legislature thority granted it by section 51-a. appropriate chose to not additional state Thus, majority’s result is that provide funds to procedures ERA is so much more extensive than the which federal reimbursement is un- due-process equal-protection guaran- Although impact available. of these tees of the Texas and United States Con- exclusively by events is felt almost indi- stitutions that the amendment constitu- women, gent the ERA change does not tionally an confers entitlement to such of identifying suspect calculus classifica- necessary funds as be to obtain med- Poverty suspect tion. is not a classifica- ical services the State not to pro- chooses Poverty blight tion Texas. is a on our words, vide. In scope other the ERA’s society, and it is appropriate seek its trumps such that it section 51-a and com- Indeed, it may good eradication. not be pels reject either to Medic- public policy deprive indigents of the aid matching altogether ap- funds or to medical services available to same those propriate provide additional funds to pay, able to but that decision the law services for which there matching are no legislature. leaves to the funds. The Supreme Court has not held the ERA to be so nor expansive; Because the ERA not compel does would I. procedures to fund the medical sought by to so appellants and failure existing

Based on I precedent, would class, fund I predicated suspect although requires hold that the ERA strict judicial court scrutiny to determine that there is would hold the district was cor- compelling denying sought by state interest before sex- rect in appel- relief 32.024(e) 5. Section 51-a was amended November 6. Ann. See Tex.Hum.Res.Code changes after this suit was filed. The Supp.2000). affected the amendment are not material opinion. to this The current version of sec- tion 51-a is cited for convenience. majority holds other- lants. Because the

wise, respectfully dissent.7 I Texas, Appellant,

The STATE of LAIRD, Appellee. Shack

Joe

No. 03-00-00327-CR. Texas, Appeals

Court of

Austin.

Dec. 2000.

Discretionary Review Refused

April above, I would thus overrule stated Court decides this case on the reasons 7. Because the ERA, majority does not ad al- majority, basis of the appellants’ other claims. appellants' claims re dress addressing equal-protection though not equal-protection pri violate the strictions issues, greater privacy observes that the vacy guarantees of the Texas Constitution. similar that have addressed number of states - supra provisions If the state 697 found that their constitutions issues have protection guarantees afford exceed the procedures. the medical compel Constitution, I by the United States do not ed tally be appears to at 696 n. 8. The See id. they they do so to the extent believe I find this statistic four. See id. seven to compel the medical fund persuasive. nor conclusive neither For the procedures at issue this case.

Case Details

Case Name: Low-Income Women Ex Rel. Prince v. Bost

Court Name: Court of Appeals of Texas

Date Published: Dec 7, 2000

Citation: 38 S.W.3d 689

Docket Number: 03-98-00209-CV

Court Abbreviation: Tex. App.