dissenting. The question presented in this appeal is whether the Chancellor erred in her interpretation of Ark. Const, amend. 68, §1, which provides, “No public funds will be used to pay for any abortion, except to save the mother’s life.” The argument has to do with whether it is permissible for a State of Arkansas institution to permit abortions, other than those done to save the life of the mother, to be performed there if the abortions are “paid for” by the requesting party or a third party as opposed to being “paid for” with public funds. An example of the arguments made is the contention that anytime an abortion is done at UAMS by state employees using state facilities public funds are used regardless who “pays for” the abortion. We should interpret Amendment 68 and answer the question.
In its order of July 25, 1994, the United States District Court for the Eastern District of Arkansas, Western Division, issued the following injunction: “The enforcement of Amendment 68 is hereby enjoined in its entirety for so long as the State of Arkansas accepts federal funds pursuant to the Medicaid Act. Likewise, the provision of the Arkansas state plan that relate to abortion funding and are inconsistent with the Hyde Amendment are enjoined.” On July 27, 1994, the same Court issued a supplemental order, the last two paragraphs of which provided:
Furthermore, the record makes it absolutely clear that these sponsors knew that their Amendment [the Hyde Amendment] would require the states to either opt out of Medicaid, or provide funding for abortions following rape or incest — as well as for saving the life of the mother. There is not a suggestion to the contrary in the Congressional Record as far as the Court can find — and the parties have not called the Court’s attention to any such suggestion.
Amendment 68 to the Arkansas Constitution directly conflicts with federal law (the 1994 Hyde Amendment) and is, therefore, null, void and of no effect. [Footnote omitted.]
It seems clear to me that the only conflict with federal law is with the Hyde Amendment. The United States District Court’s order is ambiguous because it says Amendment 68 is “null, void and of no effect” but bases that conclusion upon a conditional premise, the condition being acceptance by the State of Arkansas of Medicaid funding. Even if that order were upheld in its present form, the only reasonable interpretation I can give it is that the State must allow public funds to be used to fund abortions in rape and incest cases, in addition to those done to protect the life of the mother, if the State continues to accept Medicaid funding from the federal government. It may seem unlikely, or even bizarre, to suggest Arkansas might forego the acceptance of Medicaid funding for the sake of Amendment 68, but stranger things have happened, and as a legal proposition, the option is there.
My quarrel with the majority opinion’s reconsideration and granting of the motion to stay the appeal thus has to do with this sentence which appears in the opinion: “Yet, unless the preliminary injunction issued by the chancery court is stayed, UAMS and the State of Arkansas can only comply with the terms of one injunction by violating the terms of the other injunction.” That is not so. By deciding to forego receiving Medicaid funding, the State could follow the Chancellor’s order without violating any federal law that has been cited thus far and without violating the injunction language of the District Court’s July 25 order. It enjoined “The enforcement of amendment 68 . . . for so long as the State of Arkansas accepts federal funds pursuant to the Medicaid Act.”
Although both sides want us to postpone our decision, I must point out that this case has been ready for submission to this Court since February 15, 1994. We scheduled oral argument which we have now heard, and the case is ready for decision. A companion case, Knowlton v. Ward, #93-1170, which will also deal with Amendment 68 has been ready for submission since February 17, 1994, and is now under submission to this Court. Surely we should not propose to decide the latter case but postpone the former one.
Any further ruling in the federal courts with respect to Amendment 68 will leave a vestige of it intact. What will the Amendment mean if the conflict with federal law is removed? The Chancellor has ruled on it. At this stage only this Court can declare the meaning of the Amendment. We should do so now.
I respectfully dissent.
Dudley, J., joins in this dissent.