ACLU files suit challenging Michigan's ban on Medicaid funding for abortion

LANSING, Mich. — The American Civil Liberties Union of Michigan has filed a challenge to the state's ban on Medicaid-funded abortions, arguing the law violates the constitutional right to reproductive freedom that Michigan voters enshrined in the state constitution in November 2022.

The filing on behalf of YWCA Kalamazoo in the Court of Claims comes two days after a judge in the same court blocked enforcement of other state regulations on abortion in an order that found the state's 24-hour waiting period, informed consent requirements and a ban on abortions performed by advance practice clinicians violated the state's voter-approved right to abortion.

The Democratic-led Legislature had attempted last year to repeal the ban abortions funded by Medicaid, the state's health insurance program for low-income residents. But a no vote from one Democratic House member from Detroit foiled the effort in the lower chamber, where Democrats hold a slim 56-54 majority.

Bonsitu Kitaba, deputy legal director for the ACLU of Michigan, argued Michigan's ban on Medicaid coverage for abortion creates a "two-tiered system" between those who can afford private health insurance for terminating a pregnancy and those who cannot. The deprivation, Kitaba said, infringes on the fundamental right to reproductive freedom and is discriminatory since Medicaid covers childbirth but not abortion.

"The state ban on Medicaid on abortion care not only violates this fundamental right (to reproductive freedom), it unduly burdens people of low income and disproportionately impacts people who already face a set of barriers to accessing health care," Kitaba said.

The YWCA has helped with the cost of abortion care for clients who have Medicaid coverage and have paid for more than 150 women seeking abortion in the past year alone, essentially "subsidizing a government responsibility," said Susan Rosas, CEO of YWCA Kalamazoo. If the organization didn't cover those abortions, it would be able to devote more efforts toward maternal health care services, she said.

"By covering medical care only for women who decide to carry their pregnancies to term, Medicaid currently perpetuates the stereotype that women are by nature destined to become mothers and that any other choice should be met with contempt," Rosas said. "The choice not to be a parent is irrelevant if obtaining an abortion is financially out of reach."

The filing from the ACLU was assigned to Court of Claims Judge Brock Swartzle, an appointee of Republican former Gov. Rick Snyder. The most recent successful challenge of Michigan's abortion regulations was assigned to Court of Claims Judge Sima Patel, an appointee of Democratic Gov. Gretchen Whitmer.

The federal Hyde Amendment prohibits federal funding of abortions, including through Medicaid, but Michigan could use state dollars to cover abortions if the ban was repealed. Seventeen other states have similar allowances for Medicaid funding of abortions, Kitaba said.

Right to Life of Michigan helped lead a petition initiative in 1987 to put the Medicaid ban into law. Once a requisite number of signatures were collected, the Republican-led Legislature voted to enact the law instead of allowing it to go to the ballot for a vote of the people.

The filing from the ACLU comes after a heated campaign debate ahead of the 2022 vote on Proposal 3, known as the Reproductive Freedom for All proposal, over whether the constitutional amendment would nullify existing state regulations on abortion. Opponents argued it would, while proponents of Proposal 3 accused their foes of fear mongering.

In some instances, over the past few months, laws believed to have been in conflict with the new constitutional amendment were repealed by the new Democratic legislative majority.

But Democrats in the Legislature were unable to muster support within their own caucus for a repeal of the ban on Medicaid coverage for abortion, the 24-hour waiting period or the informed consent provision, setting the stage for litigation this year that sought to repeal those measures through the court system.

"The Legislature had an opportunity to repeal this harmful and outdated law and they didn’t get the job done," Kitaba said Wednesday. "So now it's up to the courts to make sure that this law is struck down because it is clearly in conflict with the right to reproductive freedom now enshrined in the constitution”

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