This is a formal opinion regarding whether abortion must be included in the coverage provided under the Husky Plan, Part B ("Husky B"), a program designed to ensure health care coverage to all children in Connecticut.1 Based on the correspondence we have reviewed, the Department of Social Services (the "Department"), through David Parella, Director of Medical Care Administration for the Department, has already indicated to Judy Tabar, Executive Director of Planned Parenthood of Connecticut, Inc., that it intends to adhere to the restrictions on abortion services coverage that are in federal law and will cover only those abortions that are necessary to save the life of the mother or to terminate a pregnancy that is the result of rape or incest. The Department is seeking an opinion from this office prior to your drafting a response to a letter from the Connecticut Coalition for Choice in which the group is urging you to reconsider the Department's position.

Our understanding is that the Department does not feel that the decision in Doe v. Maher, 40 Conn. Supp. 394 (1986), which held that the state's restriction on Medicaid recipients' access to medically necessary abortions violated the state constitution, has any bearing on the benefits conferred under Title XXI, 42 U. S. C.  1397aa to 1397jj, inclusive, because Doe is a Medicaid case. Consequently, in the Department's proposed regulations for Husky B, abortion is covered under the basic benefit package "only if necessary to save the life of the mother, or a pregnancy resulting from an act of rape or incest." Proposed Draft Regulations,  97-1-13(d).

Based on our review, we conclude that the differences between the Medicaid program and Title XXI , the state Children's Health Insurance Program, are not legally sufficient to render Doe inapplicable to Husky B. Although Doe is not a decision of the Connecticut Supreme Court and the law in this area is unsettled, we are of the opinion the legal analysis in Doe is correct and is applicable to Husky B and that the Department's proposed regulation would violate the state constitution. Accordingly, we conclude that medically necessary abortions should be covered under Husky B.

Background

Title XXI is the State Children's Health Insurance Program. It provides funds to states "to initiate and expand the provision of child health assistance to uninsured, low-income children in an effective and efficient manner that is coordinated with other sources of health benefits coverage for children." 42 U.S.C.  1397aa. As with the Title XIX Medicaid program, Title XXI is a joint state-federal program. States must provide coverage in accordance with federal and state law requirements and the federal government provides matching funds to the states. Family planning services and prenatal care are covered by both programs.

Just as for Title XIX, under Title XXI, federal funding can be used to cover abortion "only if necessary to save the life of the mother or if the pregnancy is the result of an act of rape or incest." 42 U.S.C.  1397ee(c)(1), 1397ee(c)(7). Federal law, however, also provides that "[n]othing in this section shall be construed as affecting the expenditures by a State . . . (other than funds expended under the State plan) for any abortion or for health benefits coverage that includes coverage of abortion." 42 U.S.C.  1397ee(c)(7)(C). In other words, states may not use federal dollars to fund all medically necessary abortion services under Title XXI, but federal law does not restrict states from using their own funds to cover these services.

The United States Supreme Court upheld the provision in federal Medicaid law restricting access to abortion to situations where it is necessary to save the life of the mother or to end a pregnancy that is the result of rape or incest. Harris v. McRae, 448 U.S. 297 (1980). As noted above, however, federal law does not restrict state funding for abortions, and the Connecticut Superior Court held, in Doe v. Maher, that the State of Connecticut could not restrict the funding of abortions under Connecticut's Medicaid program to cover only those pregnancies where the woman's life was in danger or the pregnancy was the result of rape or incest. The Court ruled that such restrictions violated the due process clause, the equal protection clause and the equal rights amendment of the constitution of the State of Connecticut. That decision was not appealed by the state.

There are two main differences between Title XIX and Title XXI. First, Title XIX is an entitlement program and Title XXI is not. While funding must be made available to provide Medicaid benefits to eligible participants, Title XXI benefits may be terminated if the funding allotted to the program is depleted. Second, Title XIX assists only poor people. Eligibility is granted only if the individual or family is indigent. By contrast, Title XXI is available to all children, regardless of the families' income levels. State benefits under Husky B range from full subsidization of the premium to no subsidization at all. In situations where there is no subsidization, the benefit to the family is the opportunity to obtain health insurance at the lower-than-commercial and state-negotiated rate. As discussed below, we conclude that, despite these differences, the constitutional analysis in Doe is applicable to the Title XXI Husky B program.

Doe v. Maher

Doe was a class action brought by a Medicaid recipient and her physician, challenging the legality and constitutionality of the state regulation restricting abortion to those necessary because the woman's life would be endangered if the pregnancy were carried to term.

The first constitutional claim was that the regulation was a violation of due process rights because it impinged on the Medicaid recipients' right of privacy guaranteed by the state constitution. After discussing the right to privacy, as set forth by the United States Supreme Court in Roe v. Wade, 410 U.S. 959 (1973), the Court cited to Connecticut's first formal constitution of 1818 which the Court wrote "compels the conclusion that the right of privacy is also implicitly guaranteed under our state charter of liberty." Doe, 40 Conn. Supp. at 421. Described as a fundamental or a "natural" right, the right of privacy is taken for granted as a right "implicit in Connecticut's ordered liberty" and protected by the due process clause of the state constitution. "It is well settled that, quite apart from the guarantee of equal protection, if a law impinges upon a fundamental right explicitly or implicitly secured by the Constitution [it] is presumptively unconstitutional." Id. at 427 (quoting Harris, 448 U.S. at 312) (internal quotation marks and citations omitted).

After concluding that the state constitutional and fundamental right to privacy encompasses (1) a woman's guaranty of freedom of procreative choice and the right to secure an abortion; (2) the doctor-patient relationship regarding a woman's health; and (3) a person's right to make decisions that are necessary for the preservation and protection of one's health, the Court determined that the regulation limiting state reimbursement for medically necessary abortions infringed upon that right. It concluded that the state must, in the face of a fundamental right protected by the Constitution, "maintain its neutrality unless an intrusion is justified by a compelling state interest." Doe, 40 Conn. Supp. at 427.

The Court then supported its conclusion that the regulation was a violation of the due process clause of the state's constitution because the state was not preserving its neutrality:

Under the program it provides funds for childbirth, but denies funds to terminate the pregnancy; it provides for all other necessary medical needs of the woman, save one -- the medically necessary abortion. The fact that the regulation singles out one medical procedure flies in the face of the medicaid program's admitted goals. . . . And since the one exception also is a subject of a woman's constitutional rights, the regulation impinges on those constitutional rights to the same practical extent as if the state were to affirmatively rule that poor women were prohibited from obtaining an abortion.

Doe, 40 Conn. Supp. at 430.

The Court also ruled that the state's regulation of abortion violated the equal protection clauses of the state constitution and the equal rights amendment. "The Connecticut equal protection clauses require the state when extending benefits to keep them 'free of unreasoned distinctions that can only impede [the] open and equal' exercise of fundamental rights." Doe, 40 Conn. Supp. at 442 (quoting D'Amico v. Manson, 193 Conn. 144, 147 (1984)) (internal citation omitted).

The Court found that the selective funding of medically necessary abortions and the absolute funding of medically necessary procedures to bring the fetus to term "at least implicitly impinges on the fundamental right of privacy guaranteed to all pregnant women - rich and poor alike - and that is, the right to choose whether to have an abortion." Doe, 40 Conn. Supp. at 443. As under the due process analysis, the Court ruled that the state failed to provide a compelling reason to exclude abortion from Medicaid funding when the health of the woman is at stake, i.e., when the abortion is medically necessary. "Under either analysis, the regulation which encourages a woman through financial coercion to bear children at the risk of their health does not meet constitutional standards." Id. The Court also found that the regulation violated the ERA because it discriminated on the basis of sex.

Although Connecticut's Doe v. Maher is a Superior Court decision, the Connecticut Supreme Court has cited to it when referring to the right to privacy in the context of state funding of abortion. Perkins v. Freedom of Information Comm'n, 228 Conn. 158, 171 n. 15 (1993). It has also cited to Doe for the propositions that the Connecticut Supreme Court is not bound by federal precedents in interpreting the state's own constitution, Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey, 229 Conn. 312, 316 (1994), and that the federal constitution provides a minimum baseline of rights below which states cannot tread. State v. Morales, 232 Conn. 707, 726-27 n. 21 (1995).

The Connecticut Supreme Court often looks to the court rulings in other states in resolving legal issues of first impression in Connecticut. See Flagg Energy Dev. Corp. v. General Motors Corp., 244 Conn. 126, 150 (1998); Flint v. Universal Mach. Co., 238 Conn. 637,650 (1996); Harvey v. Travelers Indem. Co., 188 Conn. 245, 249 (1982). The highest courts in several states have ruled that, based on their state constitutions, all medically necessary abortions must be funded by those states' Medicaid programs. See, e.g., Women of the State of Minnesota v. Gomez, 542 N.W. 2d 17 (Minn. 1995); Right to Choose v. Byrne, 91 N.J. 287, 450 A.2d 925 (1982); Committee to Defend Reproductive Rights v. Myers, 29 Cal. 3d 252, 172 Cal. Rptr. 866, 652 P.2d 779 (1981); Moe v. Secretary of Administration and Finance, 382 Mass. 629, 417 N.E.2d 387 (1981).

Application of Doe to Husky B

Because we believe the rationale of Doe is correct, we think the Department's proposed regulation restricting reimbursement for abortion under Husky B would be unlawful under the state constitution. We do not believe that the differences between Medicaid and Title XXI are significant enough to render the Doe analysis inapplicable to Husky B.

It is true that, because the people covered by Husky B are not as indigent as those on Medicaid, Husky B participants can, theoretically, better afford to pay for an abortion, even if it is not a covered benefit. It could be argued that the state would not be depriving Husky B recipients of their fundamental rights because some Husky B recipients may have the money to exercise their rights. 2

It should be noted, however, that Husky B covers only minors. Under Connecticut law, minors have the right to obtain an abortion without parental consent. Conn. Gen. Stat.  19a-601. Minors who choose not to involve their parents in the decision to have an abortion may not have access to money to pay for an abortion and may well need the Husky B funding to exercise their choice to the same extent as women covered by Medicaid.

Moreover, the different economic status of recipients under the two programs does not resolve the equal protection problem of providing full prenatal care benefits to those participants who choose to carry a pregnancy to term and no medical benefits to participants who choose to terminate a pregnancy by abortion.

Once [the state] undertakes to fund medically necessary care attendant upon pregnancy, . . . government must proceed in a neutral manner. Given the high priority accorded in this State to the rights of privacy and health, it is not neutral to fund services medically necessary for childbirth while refusing to fund medically necessary abortions. Nor is it neutral to provide one woman with the means to protect her life at the expense of a fetus and to force another to sacrifice her health to protect a potential life.

Right to Choose, 450 A. 2d at 935. Accordingly, we do not believe the differences between the two programs justify departure from the constitutional analysis in Doe.

We note that Doe is not a decision by the Connecticut Supreme Court. As a trial court decision, it does not establish binding precedent. McDonald v. Rowe, 43 Conn. App. 39, 43 (1996). A state regulation may be declared invalid by one Superior Court and upheld by a different Superior Court decision. Id. Although Connecticut Superior Court opinions may be persuasive, they are "by no means binding upon [an appellate court]" or on one another. L & R Realty v. Connecticut Nat'l Bank, 46 Conn. App. 432, 438 (1997). Nevertheless, while "not automatically binding," the Connecticut Supreme Court has acknowledged that Superior Court decisions "are entitled to 'proper regard' in ascertaining the applicable state law." Id. J.M. Lynne Co. v. Geraghty, 204 Conn. 361, 368-69 (1987).

The Connecticut Supreme Court has written repeatedly that, "[i]n order to construe the contours of our state constitution and reach reasoned and principled results," one of the tools of analysis that should be considered is "holdings and dicta of this court, and the Appellate Court," interestingly citing to the Superior Court decision in Doe for support of this proposition. State v. Geisler, 222 Conn. 672, 684-85 (1992). See also State v. Wilkins, 240 Conn. 489, 505 (1997); State v. Joyce, 229 Conn. 10, 16 n. 7 (1994); State v. Miller, 227 Conn. 363, 380 (1993). When a decision from the highest state court is lacking, however, "we must anticipate how that court would rule on the question presented." J.M. Lynne Co., 204 Conn. at 368-69. Based on the analysis discussed above, we conclude that the reasoning of Doe is correct and that the state Supreme Court would apply it to the Husky B program. Therefore, it is our opinion that the proposed restriction on Husky B abortion coverage would violate the state constitution, and if adopted, the proposed regulation would be unconstitutional.3

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Phyllis E. Hyman
Assistant Attorney General

RB/PEH

Footnote:

1 Husky B is sections 1 to 16, inclusive, of Public Act 97-1, October 29, 1997 Special Session. It is assumed that medically necessary abortions will be covered under Part A of the Husky Program because children receiving assistance under section 17b-261 of the Connecticut General Statutes, as amended, are participants in the Husky Plan, Part A.

2 In Hope v. Perales, 83 N.Y.2d 563, 634 N.E.2d 183 (1994), the New York Court of Appeals held that New York was not required by its state constitution to fund abortions under a joint state-federal program (the Prenatal Care Assistance Program)("PCAP") that was funded and administered through the state's Medicaid program, even though the state funded all medically necessary abortions under its Medicaid program. It reasoned that this case was different from a Medicaid case because the recipient was not indigent and had the financial means to exercise her fundamental right of choice. The Court concluded that PCAP did not burden a fundamental right to the state's interest in providing much-needed prenatal care to low-income women. Id. at 188.

3 Our research has not revealed any court decisions regarding states' constitutional obligations to fund medically necessary abortions under Title XXI. Massachusetts is funding medically necessary abortions under its Title XXI program using state funds only, not because of a court decision, but as a matter of policy.

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