-"-..1,-...~ATIONAL RIGHT TO LIFE NEWS- DECEMBE1~ 1 (). 199.1)

By NRLC Federal Legislative Office--

that simply means that the abor-tion was performed by a licensedprofessional. Thus, the orderactually requires the state to payfor abortion on demand forMedicaid-eligible women. (Seesidebar on this page.)

Writing for the court, JusticePamela Minzner wrote that thestate's rule "undoubtedly singlesout for less favorable treatment agender-linked condition that isunique to women."

She also wrote, "Under theDepartment's regulations, there

is no comparable restriction onmedically necessary servicesrelating to physical characteris-tics or conditions that are uniqueto men. Indeed, we can find noprovision in the Department'sregulations that disfavor anycomparable, medically necessaryprocedure unique to the maleanatomy."The ruling was based entirely on

the state ERA, which says,"Equality of rights under lawshall not be denied on account ofthe sex of any person."

NRLC Federal Legislative

The New Mexico SupremeCourt has ruled that the state's"Equal Rights Amendment"(ERA) requires the state to payfor abortion on demand for poorwomen.The ruling validates years of

warnings by NRLC and othersthat ERAs can be used as power-ful pro-abortion legal weapons,uxUess they are suitably amend-ed.The New Mexico case involved

Medicaid, the joint federal-stateprogram that provides medicalservices for low-income people.Under the Hyde Amendment, thefederal government does not payfor abortions under the program,except in cases of danger to thelife of the mother, rape, or incest.In New Mexico, a state humanservices department rule also pro-hibited the use of state funds forMedicaid abortions, with thesame three exceptions.The state's pro-life policy was

challenged in a lawsuit filed bystate affiliates of PlannedParenthood and of the NationalAbortion and Reproductive RightsAction League (NARAL). Thesegroups argued that the state poli-cy violated several provisions ofthe New Mexico Constitution,including the state ERA, whichwas adopted in 1973.

In a 5-0 ruling handed down onNovember 25, the New MexicoSupreme Court agreed that thestate's refusal to fund electiveabortions violated the state ERA.The court ordered the state topay for all so-called "medicallynecessary" abortions. Within thecontext of abortion law, "medical-ly necessary" is a legal term of art

What Does "Medically Necessary" Really Mean?

As reported in the article on this page, in November the New MexicoSupreme Court ordered that state to pay for all so-called "medically nec-essary" abortions for Medicaid-eligible women.

To the layperson, the tenn "medically necessary" suggests that anabortion is performeq because of some sort of medical emergency arisingfrom a woman's pregnancy. However, under federal court decisions goingback more than 20 years. "medically necessary abortion" is a legal termof art which simply means that an abortion is performed by a licensedmedical professional.

Thus, a decision to pay for "medically necessary" abortions underMedicaid is in fact a decision to pay for all abortions performed onMedicaid-eligible women -the vast majority of which are performedsimply as a method of birth control.

Pro-abortion advocacy groups understand this very well. A fewexamples:

.In 1993, William Hamilton, vice president of the Planned ParenthoodFederation of America, told Knight-Ridder Newspapers that "medicallynecessar)." abortIons include "anything a doctor and a woman construe tobe in her best interest, whether prenatal care or abortion" (PhiladelphiaInquirer, Sept. 8,19931.

.The National Abortion and Reproductive Rights Action League(NARALI defIned "medically necessary" as "a tenn which generallyincludes the broadest range of situations for which a state will fundabortion" (Who Decides? A Reproductive Rights Issues Manual, 1990).

.A senior Clinton Administration health official told Congress, "Whenwe.re talking about medically necessary or appropriate [abortion]services we are also talking about all legal services" (Judith Feder,principal deputy assistant secretary for planning and evaluation,Department of Health and Human Services, Jan. 26,1994).

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Director Douglas Johnsoncommented, "These fivejudges in effect ruled that thestate may not recognize anydifference between a man'senlarged prostate gland andan unborn child. By thatcold-blooded logic, evenrestrictions on late-termabortions or parental consentlaws would be a form of illegalsex discrimination."The court rejected the state's

argument that the policy was alegitimate cost-saving measure,noting that abortion during the"early stages of pregnancy" is lessexpensive to the state than thecosts of bringing a pregnancy toterm and "coverage for newborninfants."During the 1~96-97 budget year,

during which the pro-life rule wasnot enforced because of thelawsuit, the state paid for 1,370abortions, only one of which wasto save a mother's life, accordingto the Associated Press.

Implications for Federal ERAThe New Mexico court's ruling

has implications for ongoingefforts to enact an ERA to thefederal Constitution.The New Mexico ERA language,

"Equality of rights under lawshall not be denied on account ofthe sex of any person," is veryclose to the proposed ERAapproved by Congress in 1972,which said, "Equality of rightsunder the law shall not be denied

or abridged by the United Statesor by any State on account of sex."The 1972 ERA resolution con-

tained a seven-year deadline forratification, which expired in1979 with only 35 state legisla-tures having ever acted to ratify.

Beginning in 1983, withattempts underway to revive theERA in Congress, NRLC insistedon the need for adoption of an"abortion-neutralization amend-ment" to the ERA. Sponsoredby Congressman James Sensen-brenner (R-Wi.), the amendmentwould have added to the ERA thesentence, "Nothing in this article[ the ERA] shall be construed togrant, secure, or deny any rightrelating to abortion or thefunding thereof."

Leading ERA supporters brand-ed the amendment as unaccept-able. On November 15, 1983,then-Speaker Tip O'Neill tried toram the ERA through the Houseunder a procedure that did notpermit consideration of amend-ments, but that move failed whenit was strongly opposed by pro-lifeforces, including NRLC and theNational Conference of CatholicBishops.

ERA-Abortion LinkWas Denied

During the 1970s and 1980s,most prominent ERA supportersargued that an abortion-neutralamendment was "unnecessary,"because, they claimed, there wasno rational basis for NRLC'sinsistence that ERAs could beused to attack pro-life policies.

For example, Prof. ThomasEmerson of Yale Law School,often cited by ERA supporters as

National Groups InvolvedBesides the involvement by

NARAL and Planned Parenthood,several other national pro-abortion groups filed friend-of-the-court briefs urging the courtto strike down the pro-life policy:the ACLU, the Center forReproductive Law & Policy, andthe NOW Legal Defense andEducation Fund. In addition,such briefs were filed by the stateWomen's Bar Association, PublicHealth Association, and Leaguesof Women Voters.

New Mexico Attorney GeneralThm Udall (D) refused to defendthe state policy, instead filing abrief urgmg its invalidation. OnNov. ~, Udall was elected to theU.S. House of Representatives,

defeating pro-life Rep. BillRedmond (RJ.

Pro-life attorneys James Bopp,Jr., and John K. Abegg filed afriend-of-the-court brief in sup-port of the pro-life policy on behalfof the Right to Life Committee ofNew Mexico, the state NRLCaffiliate. Bopp is NRLC's generalcounsel.

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ERA that does not containexplicit abortion-neutraliza-tion language."

For the last several years, theNational Organization for Women(NOW) and some other ERA pro-ponents have sought to persuadeadditional state legislatures toadopt resolutions "ratifying" the1972 ERA, based on a novel legaltheory that the seven-year timelimit imposed by Congress has nobinding legal force. So far, nostate legislature has done so.Others, such as Sen. Ted

Kennedy (D-Mass.) and Rep.Carolyn Maloney (D-NY), haveintroduced proposals for Congressto send a new ERA to the statesfor ratification --but this timewithout any time limit. Theseproposals have received no actionfrom the Republican-controlledCongress.

For a copy of the New MexicoSupreme Court ruling andother documentation on theERA/abortion connection,write to the NRLC FederalLegislative Office, 419-SeventhStreet, Northwest, Suite 500,Washington, D.C. 20004, fax(202) 347-3668.

the leading authority on the legalmeaning of the proposed federalERA, said government regula-tions on abortion "would not beaffected one way or the other bythe passage of the ERA. Thisallegation is pure red herring."When Sen. Orrin Hatch

(R-Utah) held a hearing in 1984examining the ERA-abortionissue, Prof. Anne Freedman ofRutgers University Law Schooltestified as the consensus legalexpert for ERA proponents. Whenasked if the ERA would "createany new abortion rights" or "haveimpact on the Federal, State, orlocal limitations on public fund-ing of abortions," Prof. Freedmanres.ponded, "No."

Likewise, liberal Catholicactivists Maureen Fiedler andElizabeth Alexander, co-foundersof Catholics Act for ERA, said in a1980 cover story in the Jesuitmagazine America, "The EqualRights Amendment is not con-nected with abortion," andsuggested that those who arguedotherwise were laboring under"misconceptions and distortions."In 1983, Fiedler spoke of theNRLC-backed abortion-neutralamendment as one among several"dishonest amendments proposedby people who wanted to killERA."NRLC's Johnson comment-

ed, "Th-e New MexicoSupreme Court ruling demon-strates that ERA supporterswho denied an ERA-abortionconnection were disingenu-ous or terribly naive. Thisruling underscores the nece8-sity of attaching airtightabortion-neutral language toany future proposals for afederal ERA, and to any ERAsthat may be proposed instates that do not alreadyhave them. In addition,pro-life federal and state leg-islators should be urged notto sponsor or support any