the Low-Income Women of Texas, as Represented by Robert Prince, M.D. Curtis Boyd, M.D. William Watkins West, Jr., M.D. The Fairmount Center The Routh Street Women's Clinic And Reproductive Health Services v. Eric M. Bost, Commissioner of Human Services, in His Official Capacity and His Successors The Texas Board of Human Services The Texas Department of Human Services Charles E. Bell, Commissioner of Health, in His Official Capacity and His Successors The

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00209-CV

The Low-Income Women of Texas, as Represented by Robert Prince, M.D.; Curtis Boyd, M.D.; William Watkins West, Jr., M.D.; The Fairmount Center; The Routh Street Women's Clinic; and Reproductive Health Services, Appellants

Eric M. Bost, Commissioner of Human Services, in his Official Capacity and his Successors; The Texas Board of Human Services; The Texas Department of Human Services;

Charles E. Bell, Commissioner of Health, in his Official Capacity and his

Successors; The Texas Board of Health; and The Texas

Department of Health, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 93-02823, HONORABLE PAUL DAVIS, JUDGE PRESIDING

DISSENTING OPINION

I respectfully dissent.

I agree with the majority that this appeal is not about a woman's right to have an abortion. I further agree that there is no ripe claim before us regarding the Maternal/Infant Health Act abortion funding. Where the majority and I part ways is over whether the Texas Legislature, in establishing the Texas Medical Assistance Program,⁽¹⁾ impermissibly discriminated against women on the basis of their sex by devising a plan to accept federal matching funds that are restricted in their use. It is undisputed that services provided pursuant to the Medical Assistance Program are limited to those for which the State can receive federal matching funds. See Tex. Hum. Res. Code Ann. § 32.024(e) (West Supp. 2000). Nor is it disputed that the "Hyde Amendment," in the form currently before this Court, prohibits reimbursement for abortion services except in cases of rape or incest or where the pregnancy threatens the mother's life. See Omnibus Consolidated & Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105-277, §§ 508(a), 509(a), 112 Stat. 2681, 2681-385 (1998). The question is whether the Equal Rights Amendment to the Texas Constitution compels the legislature to appropriate state funds beyond those necessary to entitle the State to receive federal matching funds if the federal funds may not be expended to compensate physicians who perform a medical procedure that can only be performed on a woman. See Tex. Const. art. I, § 3a ("Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin."). Said another way, did the legislature violate the ERA⁽²⁾ when it did no more than what was minimally required to obtain for the citizens of Texas federal funds that are restricted in their use? Because, unlike the majority, I believe that the legislature acted within the constitution, I respectfully dissent.

The Hyde Amendment violates neither the Due Process nor the Equal Protection Clauses of the United States Constitution. Harris v. McRae, 448 U.S. 297, 318, 326 (1980). The Supreme Court has held that the federal Medicaid assistance program⁽³⁾ does not compel a participating state to pay for medical services for which federal reimbursement is unavailable by virtue of the Hyde Amendment.⁽⁴⁾ Id. at 311. In addressing the Hyde Amendment, the Court noted that the Due Process Clause "affords protection against unwarranted government interference" but does not compel an "affirmative funding obligation" to subsidize medical procedures for indigent women. Id. at 317-18. The Court also held that the Hyde Amendment does not violate the constitutional guarantee of equal protection because the amendment is not "predicated on a suspect classification." Id. at 322-23. Specifically, the Court observed that "the principal impact of the Hyde Amendment falls on the indigent. But that fact does not itself render the funding restriction constitutionally invalid, for this Court has held repeatedly that poverty, standing alone, is not a suspect classification." Id. at 323 (citing James v. Valtierra, 402 U.S. 137 (1971)); accord Mahrer v. Roe, 432 U.S. 464, 470-71 (1977).

In In re McLean, the Texas Supreme Court held that the ERA is "more extensive and provides more specific protection than both the United States and Texas due process and equal protection guarantees." 725 S.W.2d 696, 698 (Tex. 1987). The court referred generally to the amendment's "added guarantees" and held that the ERA "elevates sex to a suspect classification." Id. Because sex is a suspect classification, sex-based discrimination is subject to strict judicial scrutiny. Id. "Under [the Texas] model of strict judicial scrutiny, such discrimination is allowed only when the proponent of the discrimination can prove that there is no other manner to protect that state's compelling interest." Id. (citing Mercer v. Board of Trs., N. Forest ISD, 538 S.W.2d 201 (Tex. Civ. App.--Houston [14th Dist.] 1976, writ ref'd n.r.e.)).

McLean clearly establishes that the tier of scrutiny to be observed by Texas courts in applying the ERA to sex-based-discrimination cases is greater than that recognized by federal courts when applying the Equal Protection Clause of the Fourteenth Amendment to similar cases. "To withstand constitutional challenge, . . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Craig v. Boren, 429 U.S. 190, 197 (1976). The Supreme Court possibly heightened the federal review standard somewhat in United States v. Virginia when the Court opined, "Parties who seek to defend gender-based governmental action must demonstrate an 'exceedingly persuasive justification' for that action." 518 U.S. 515, 531 (1996) (citing J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136-37 (1994); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)). Whatever the federal standard, McLean raised the bar for scrutinizing Texas state action under the ERA and made certain that the ERA has elevated sex to a protected status comparable to race in federal analysis. See Regents of the Univ. of Cal. v. Baake, 438 U.S. 265, 291 (1978) ("Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial determination."); Lucas v. United States; 757 S.W.2d 687, 705 n.2 (Tex. 1988) (Phillips, C.J., dissenting) ("Pursuant to the Equal Rights Amendment, strict scrutiny is . . . applied in Texas to all classifications involving the protected classes of sex, race, color, creed and national origin.").

However, McLean left for another day identification of the "added guarantees" and in what areas, if any, the ERA is "more extensive" and "provides more specific protection than both the United States and Texas due process and equal protection guarantees." McLean, 725 S.W.2d at 698. The majority finds one such area in its holding that the ERA "proscribes discrimination on the basis of pregnancy." Slip op. at 16.

There is no evidence that the legislature set out to design and enact legislation to create a medical-assistance program that prohibited the use of state funds for abortion procedures. Rather, the legislature created the minimum program required to receive federal Medicaid funds. The federal Congress, by means of the Hyde Amendment, has consistently restricted the use of those funds. The majority's holding today means that Texas cannot accept Congress's largesse without appropriating additional funds, beyond those required by Congress, to expand the Medical Assistance Program. The majority finds in the ERA an affirmative obligation for government action. I find no such mandate in the amendment. The amendment is a limitation on the power of the State. It is more specific than the pre-existing equal-protection and due-process guarantees in that it makes clear that these guarantees extend to both sexes. But the Medical Assistance Program does not deny or deprive a woman of any right she had before the program's enactment. Congress offered Medicaid funds to the states with certain restrictions on their use and Texas, through its legislature, accepted them burdened with the restrictions.

The Texas Constitution generally prohibits the legislature from granting "public moneys" to any individual. Tex. Const. art. III, § 51. In order to provide medical care for certain needy persons, the constitution was amended. See Tex. Const. art. III, § 51-a interp. commentary (West 1997). The legislature's authorization for the Medical Assistance Program is found in section 51-a of the Texas Constitution: "The Legislature may provide by General Law for medical care . . . for needy persons. The Legislature may prescribe such other eligibility requirements for participation in these programs as it deems appropriate and may make appropriations out of state funds for such purposes." Tex. Const. art. III, § 51-a(b).⁽⁵⁾ The constitution further provides that, if section 51-a's "limitations and restrictions" are found to be in conflict with federal law, "then and in that event the Legislature is specifically authorized and empowered to prescribe such limitations and restrictions and enact such laws as may be necessary in order that such federal matching money will be available for . . . medical care for or on behalf of needy persons." Tex. Const. art. III, § 51-a(c) (emphasis added). Section 51-a specifically provides the constitutional foundation allowing the legislature to seek federal funds for the Medical Assistance Program. In restricting the services provided under the Medical Assistance Program to those for which federal matching funds are available,⁽⁶⁾ the legislature acted within the authority granted it by section 51-a.

Thus, the majority's result is that the ERA is so much more extensive than the due-process and equal-protection guarantees of the Texas and United States Constitutions that the amendment constitutionally confers an entitlement to such funds as may be necessary to obtain medical services the State chooses not to provide. In other words, the ERA's scope is such that it trumps section 51-a and compels the legislature either to reject Medicaid matching funds altogether or to appropriate additional funds to provide the services for which there are no matching funds. The Texas Supreme Court has not held the ERA to be so expansive; nor would I.

Based on existing precedent, I would hold that although the ERA requires strict judicial scrutiny to determine that there is a compelling state interest before sex-based discrimination may be sustained and specifically affords protection from government action based on a person's sex, the amendment does not provide an entitlement to funds or create an affirmative constitutional obligation to ensure that all persons have the financial resources to obtain medical services. Because the ERA itself does not create an affirmative obligation to fund the medical services left unfunded by the Medical Assistance Program, there is no need to scrutinize that program to determine if there is a compelling state interest to justify the legislature's failure to fund the services.

The Supreme Court has held that the funding restrictions of the Hyde Amendment pass federal constitutional muster. Congress has incorporated these restrictions into the Medicaid assistance program. When Texas elected to participate in such program and enacted the state Medical Assistance Program, the legislature chose to not appropriate additional state funds to provide for medical procedures for which federal reimbursement is unavailable. Although the impact of these events is felt almost exclusively by indigent women, the ERA does not change the calculus of identifying a suspect classification. Poverty is not a suspect classification in Texas. Poverty is a blight on our society, and it is appropriate to seek its eradication. Indeed, it may not be good public policy to deprive indigents of the same medical services available to those able to pay, but that decision the law leaves to the legislature.

Because the ERA does not compel the legislature to fund the medical procedures sought by appellants and the failure to so fund is not predicated on a suspect class, I would hold that the district court was correct in denying the relief sought by appellants. Because the majority holds otherwise, I respectfully dissent.⁽⁷⁾

Lee Yeakel, Justice

Before Justices Jones, B. A. Smith and Yeakel

Filed: December 7, 2000

Publish

1. See Medical Assistance Act of 1967, 60th Leg., R.S., ch. 151, §§ 1-24, 1967 Gen. Laws 310 (Tex. Rev. Civ. Stat. Ann. arts. 695j, 695j-1, since repealed and codified at Tex. Hum. Res. Code Ann. §§ 32.001-.052 (West 1990 & Supp. 2000)).

2. I use "ERA" to mean the sex-equality provision of the Texas Equal Rights Amendment. See Tex. Const. art. I, § 3a.

3. 42 U.S.C.A. §§ 1396-1396v (West 1992 & Supp. 1999).

4. The participating state may, however, include unfunded services within its own Medicaid plan. Harris v. McRae, 448 U.S. 297, 311 n.16 (1980); see also Omnibus Consolidated & Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105-277, §§ 509(b), (c), 112 Stat. 2681, 2681-385 (1998).

5. Section 51-a was amended November 2, 1999, after this suit was filed. The changes affected by the amendment are not material to this opinion. The current version of section 51-a is cited for convenience.

6. See Tex. Hum. Res. Code Ann. § 32.024(e) (West Supp. 2000).

7. Because the Court decides this case on the basis of the ERA, the majority does not address appellants' claims that the funding restrictions violate the equal-protection and privacy guarantees of the Texas Constitution. See Slip op. at 13-14. If the state provisions exceed the protection and guarantees afforded by the United States Constitution, I do not believe that they do so to the extent that they compel the legislature to fund the medical procedures at issue in this case. For the reasons stated above, I would thus overrule appellants' other claims. The majority, although not addressing the equal-protection and privacy issues, observes that the greater number of states that have addressed similar issues have found that their state constitutions compel funding of the medical procedures. See Slip op. at 12 n.6. The tally appears to be seven to four. See id. I find this statistic neither conclusive nor persuasive.

ords, the ERA's scope is such that it trumps section 51-a and compels the legislature either to reject Medicaid matching funds altogether or to appropriate additional funds to provide the services for which there are no matching funds. The Texas Supreme Court has not held the ERA to be so expansive; nor would I.