Maine’s highest court will decide whether the state can be forced to provide abortions to MaineCare recipients.

The American Civil Liberties Union of Maine announced Monday that it has appealed to the Maine Supreme Judicial Court after a lower court dismissed its original lawsuit last fall.

The ACLU sued in November 2015 on behalf of three providers – Mabel Wadsworth Center, Maine Family Planning and Planned Parenthood of Northern New England – arguing that refusing to fund abortions for women on MaineCare, the state’s version of Medicaid, violates the Maine Constitution and state statute.

MaineCare already provides coverage to women for pregnancy-related care if they choose to carry their pregnancy to term. The lawsuit contends that because the state funds one kind of health coverage for low-income women but doesn’t provide coverage for women having legal abortions, it discriminates against women who decide to have an abortion and violates an equal protection clause in the state constitution.

Federal legislation that went into effect in 1977, known as the Hyde Amendment, bars federal funds from being used for abortions unless the pregnancy was a result of rape or incest or the abortion is necessary to save the life of the mother.

However, that legislation allows states to pay for other abortions, which means Maine could authorize coverage under MaineCare as long as state funds are used. MaineCare costs about $2.5 billion in state and federal funds annually, $750 million of which comes from the state General Fund.

Susan Herman, the assistant attorney general representing the state, said during oral arguments last September that the Maine Legislature has had the option to explicitly fund abortions through MaineCare but has not done so.

In his 31-page decision last October, Superior Court Justice Andrew Horton ruled against the ACLU.

“Given the wording of the statutory and constitutional provisions that the plaintiffs rely upon, and given the Law Court’s longstanding deference to federal constitutional precedent in its interpretation of the Maine Constitution, this court cannot find a basis in the Maine Constitution or a Maine statute for compelling the state to provide MaineCare funding that plaintiffs seek to have made available to their patients,” Horton wrote. “The public policy questions raised in this case are valid and significant. In this court’s view, however, the recourse and remedy plaintiffs seek in this case lies with other branches of government.”

Four states – Hawaii, Maryland, New York and Washington – voluntarily provide abortion coverage to low-income women, while 13 more – Alaska, Arizona, California, Connecticut, Illinois, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, Oregon, Vermont and West Virginia – have been ordered by state courts to fund the coverage.

However, attempts to use the courts to force public abortion funding have failed in numerous other states.

The ACLU said Maine’s top court should weigh in as other state courts have done.

“We are disappointed in the Superior Court’s decision, and we are seeking review at the Maine Law Court,” Alexa Kolbi-Molinas, staff attorney at the ACLU Reproductive Freedom Project, said in a prepared statement. “This case raises important questions that must be answered by Maine’s highest court. The right to abortion shouldn’t depend on your income, and we will not stop fighting for the rights of all women to get the care they need.”

The Attorney General’s Office declined to comment Monday because the case is still pending.

Last fall, the ACLU sued the state in another abortion-related case, contesting a nearly 40-year-old law that says only doctors can perform abortions.

The complaint said most abortions in Maine are done at three women’s health centers in Portland, Augusta and Bangor and that allowing nurse practitioners and nurse-midwives to perform the procedures would improve access to care for many in rural Maine.

Eric Russell can be contacted at 791-6344 or at:

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