S.B. 68 Prohibiting Public Funding for Abortion
Senate Judiciary, Law Enforcement,
and Criminal Justice Committee
Utah State Capitol
Salt Lake City, Utah 84114
January 21, 2004
RE: S.B. 68 Prohibiting Public Funding for Abortion
Dear Committee Members,
There was discussion yesterday (January 20, 2004), during the Senate Judiciary Committee meeting, concerning whether legislation similar to draft S.B. 68 (1st Sub.) has been passed in other states, specifically Colorado. The committee requested more information on this issue.
An initiative in Colorado amended the state’s constitution in 1984 to prohibit the use of public funds for abortions, unless an abortion was necessary to prevent the death of the woman or her unborn child. Colo. Const. Art. V, § 50. In Hern v. Beye, 57 F.3d 906 (10th Cir. 1995), the Tenth Circuit held that the provision was not enforceable because it conflicted with federal Medicaid law. While the Colorado initiative, incorporated into Colorado statute, was broader than draft S.B. 68 (1st Sub.), the reasoning of the case demonstrates why the bill should not be passed.
Medicaid is a jointly funded federal-state program, and Utah, as a participant, must comply with Title XIX of the Social Security Act of 1965 establishing Medicaid, and with applicable regulations. States are obligated to fund abortions for which federal funding is available, including pregnancies resulting from rape or incest or pregnancies that put the woman’s life at stake. S.B. 68 imposes narrower requirements for reporting cases of rape or incest than the federal requirements, and therefore violates the Supremacy Clause of the United States Constitution. The exception in the Utah bill only allows use of public funding where rape or incest was reported, “unless the woman was unable to report the crime for physical reasons or fear of retaliation.” This exception is narrower than the requirements stated under the Hyde Amendment, a rider to Title XIX, which waives the reporting requirement “if the treating physician certifies that in his or her professional opinion, the patient was unable, for physical or psychological reasons, to comply with the requirement.” Utah’s bill should reflect this broader waiver of the reporting requirement to comport with federal law.