Viagra an issue as high court debates abortion for poor

One justice asks why the state can fund Viagra for men but not abortion for women.

By ALISA ULFERTS

© St. Petersburg Times, published March 30, 2001

TALLAHASSEE -- The Florida Supreme Court took up the abortion issue Thursday, hearing arguments in an 8-year-old case that asks whether poor women should be allowed to get Medicaid-paid abortions.

Bonnie Scott Jones, an attorney for the Center for Reproductive Law and Policy, argued that the state unconstitutionally pressures women in its Medicaid program to choose childbirth over abortions that are medically necessary. It pays for childbirth but not abortion.

And the state, via Medicaid funding, forces women to "endanger their own health in order to rear children," Jones said. That violates the state Constitution's right to privacy, she said.

Bill Roberts, the attorney for the state Agency for Health Care Administration, which administers Medicaid, argued that Florida's Constitution does not require the state to fund the rights it guarantees citizens.

The question of whether Medicaid should pay for abortions deals with poverty, not constitutional rights, he told justices.

"The state did not create poverty, and it's not constitutionally obligated to do away with poverty," Roberts said.

But that didn't satisfy Justice Leander Shaw, who questioned the state's policy of covering all medically necessary reproductive procedures for men under Medicaid but not for women.

"It just doesn't meet the smell test that the state would fund Viagra for men, but for women a medically necessary abortion would not be covered," Shaw said.

Of the seven current justices, Shaw alone was also a justice in 1989 when the court overturned a law requiring teenagers seeking abortions to have the permission of a parent.

Shaw wrote that ruling, which concluded that the law violated the privacy provision of the state Constitution. The U.S. Supreme Court has upheld the federal law limiting the use of federal tax dollars.

Like the federal government, Florida bans spending its share of Medicaid money on abortions unless they're needed to save the life of the woman or to end pregnancies caused by rape or incest. That has been the state's policy at least since 1991, according to Roberts.

The Center for Reproductive Law and Policy estimates that each year 7,000 Medicaid-eligible women in Florida either have pregnancy complications or have a health condition that would worsen if they became pregnant. Medicaid is the joint federal-state health care program for the poor.

The class-action lawsuit was filed in 1993 in West Palm Beach. Last year, the 1st District Court of Appeal upheld the state's rules restricting Medicaid abortions.

On Thursday, Jones argued that the state's policy of not paying for medically necessary abortions had the effect and intent of preventing poor women from getting abortions.

"The (state's) interest in potential life is not a compelling one until viability" of the fetus, Jones said.

Roberts agreed that the state did, in fact, intend to protect fetuses. He added that was permitted as long as the state didn't create any legal barriers that keep women from getting an abortion.

"The state is not prohibited from favoring a position. The state has a compelling interest here. It's the preservation of life," and that begins at conception, he said.

The state could refuse to fund any reproductive services for women such as childbirth -- assuming it got a waiver from the federal government -- and still not violate the Constitution, Roberts added.

- Information from the Associated Press was used in this report.

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