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ACLU of Utah Comments on HB 123 “Prohibition of Public Funding for Abortion”

11 February 2003 Published in Legislative Work

Health and Human Services Committee 
Utah State Capitol
Salt Lake City, Utah 84114

February 12, 2003

RE: Illegality of H.B. 123 Prohibition of Public Funding for Abortion 

Dear Committee Members,

The ACLU of Utah would like to take this opportunity to inform you of at least two cases within the jurisdiction of Utah holding that state governments cannot prohibit public funding for abortions in cases where the state receives Medicaid funding and the mother’s life is threatened OR where the mother is the victim of rape or incest. H.B. 123 flies in the face of the holdings in these cases and will be expeditiously challenged in court. 

In Hern v. Beye, 57 F.3d. 906 (10th Cir. 1995) the Court found an identical statute to H.B. 123 violates the Title XIX of the Social Security Act of 1965 in conjunction with the 1994 Hyde Amendment because the federal regulations permit Medicaid funding, a jointly funded federal-state program, for abortions if pregnancy results from rape or incest. The statute prohibited public funding to “be used by the State of Colorado, its agencies or political subdivisions to pay or otherwise reimburse, either directly or indirectly, any person, agency or facility for the performance of any induced abortion” except when the life of the mother is threatened. The court found that states participating in the Medicaid program may not arbitrarily deny or reduce the scope of services to eligible recipients solely because of the diagnosis, type of illness or their condition. The Court found that treating abortion as medically necessary care under Title XIX, then denying treatment by singling out one medical condition by restricting coverage to cases where the woman’s life is at risk, violates Title XIX. 

Similarly, in Utah Women’s Clinic v. Utah, 892 F. Supp. 1379 (D.Utah 1995), the Court relied on Hern to find that Utah’s abortion funding statute contravenes federal Medicaid statutes by failing to provide funding for abortions in cases of rape and incest. The Court found that Utah CANNOT deny Medicaid funding for medically necessary abortions to eligible women whose pregnancies were the result of rape or incest. The Court held that “so long as Utah continues to accept federal Medicaid funds, the Supremacy clause requires the state to participate on the terms established by Congress,” in the Hyde Amendment and Title XIX. Because those statutes allow funding for abortions in rape and incest cases, the statute at issue violated the law. H.B. 123 is similar in spirit and intent to statute permanently enjoined in this case. 

In conclusion, deliberating and passing H.B. 123 is futile. The bill violates federal law and is in direct conflict with on point legal precedent in Utah. If this bill is passed, it will be summarily challenged and permanently enjoined. Therefore, we urge you to prevent expensive litigation over this issue by immediately rejecting this bill. 


Janelle P. Eurick 
Staff Attorney

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