The state is interfering with a woman’s right to decide whether to have an abortion by refusing to pay for the procedure in its Medicaid program, the ACLU of Maine argued in court Thursday.

But state lawyers told Cumberland County Superior Court Judge Andrew Horton that laws restricting the use of federal funds for abortions take precedence over Maine laws and are behind a rule adopted by the state Department of Health and Human Services that bars the state’s Medicaid program, known as MaineCare, from paying for abortions.

Oral arguments Thursday marked the first time that the case, filed in 2015 on behalf of three women’s health care providers, was argued before a judge. Horton said he will rule quickly on motions by both sides seeking a summary judgment or immediate ruling, but didn’t indicate when that decision might be handed down.

The ACLU argued that paying for pregnancy-related services, but not abortion, interferes with a woman’s right to choose to have an abortion by tilting the scales on the decision in favor of continuing a pregnancy. The funding inequity also violates equal protection clauses in the state and federal constitutions, the lawsuit contends.

“The choice and its constitutional protections are affected by the fact pregnancy services are funded and abortion isn’t,” said Zachary Heiden, the legal director of the ACLU of Maine.

Thirteen states have been forced by court order to pay for abortions for low-income women, as the ACLU of Maine is seeking, but attempts to use the courts to force public abortion funding have failed in numerous states. Four states allow state programs to pay for abortions for low-income women and on Thursday, Illinois’ governor announced he would sign a bill that will allow women to use the state’s Medicaid program to pay for abortions. The bill would also allow state employees to use their health insurance for abortion coverage.

MaineCare costs about $2.5 billion in state and federal funds annually, $750 million of which comes from the state General Fund.

The ACLU of Maine sued on behalf of three nonprofits that specialize in reproductive and sexual health care – Mabel Wadsworth Women’s Health Center, Maine Family Planning and Planned Parenthood of Northern New England. Combined, the three provide care to 21,500 Maine residents each year, more than half of whom qualify for low-income health coverage, the groups said when the suit was filed. The suit was not prompted by a specific patient.

At the time the suit was filed, Heiden said he believed the lawsuit would be successful because similar suits have succeeded in states such as Massachusetts and Vermont that have constitutions similar to Maine’s.

But Susan Herman, the assistant attorney general representing DHHS, said the Maine Legislature has had the option to explicitly fund abortions through MaineCare, but hasn’t done so.

She noted that federal law, known as the Hyde Amendment, bars the use of federal funds to pay for abortions, except for cases of pregnancy that results from rape or incest or when the life of the woman might be in danger if she continued the pregnancy.

While that would restrict the use of federal funds that pay for part of MaineCare, Heiden said, it does not bar the use of state funds in the program from being used to pay for abortions. Heiden said the Legislature doesn’t bar the use of state money for abortions and Horton noted that Maine is one of a handful of states that has minimal restrictions on access to abortions, regardless of how they are paid for.

Four states provide abortion coverage to low-income women, while 13 have been ordered by state courts to pay for the procedures. The other 33 states have varying restrictions or bar the use of state funds for abortions.

Whatever Horton rules, it’s unlikely to be the final word on the case, as the judge himself noted when he moved Thursday’s hearing from a small courtroom to the more spacious room used by the Maine Supreme Judicial Court.

“It strikes me that this case will likely end up in this courtroom, so we might as well get an early start on it,” he said.

Edward D. Murphy can be contacted at 791-6465 or at:

[email protected]

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