The justices of the Arizona Supreme Court aren't exactly left leaning—all but one are Republican appointees—but they recently chose to draw on state law to expand state abortion rights. At the end of October the court ruled, in Simat Corp. v. Arizona Health Care Cost Containment System, that the Arizona Constitution requires its state Medicaid program to fund medically necessary abortions for women who can't afford to pay for them.
This win for pro-choice advocates was the latest in a concerted state-by-state drive to undermine federal abortion decisions. Since 1980, when the U.S. Supreme Court ruled 5-4, in Harris v. McRae, that the federal Constitution doesn't require Medicaid to pay for medically necessary abortions, pro-choice groups have been asking state courts to upend their funding restrictions by rooting the right to choose in their own constitutions. "Ignore McRae," goes the argument. "Our state constitution requires something more."
Groups like the Center for Reproductive Law and Policy have brought 21 suits like the one in Arizona, and they've won 15 of them. As a result, states quietly spend millions of taxpayer dollars to pay for tens of thousands of abortions that are recommended by doctors when there's a risk to a woman's physical or mental health. (Medicaid isn't set up to fund any other kind of abortion, probably because policy-makers figure they're rationing public health-care dollars.)
Why so many pro-choice rulings? And why have there been such successes in traditionally conservative states like Alaska, Illinois, Indiana, Montana, New Mexico, Texas, and West Virginia—as well as in more liberal California, Connecticut, Massachusetts, Minnesota, New Jersey, Oregon, and Vermont? For one thing, the pro-choice litigators deliberately choose to file suits in state courts that aren't afraid to interpret their own state constitutions in ways that differ from the U.S. Supreme Court's rulings on the federal one. And they seek out state constitutions that offer stronger protections for women's rights than the federal Constitution does. In New Mexico and Texas, for instance, the hook for a pro-choice victory was a state Equal Rights Amendment. In Connecticut, it was the right to privacy. Other state courts have held that Medicaid funding for medically necessary abortions was needed to ensure that all pregnant women were guaranteed equal protection under the law. "The regulation in question discriminates between two classes of women," the Arizona justices said six weeks ago, of the state's willingness to pay for abortions for women whose lives are at risk but not for those whose health is at risk. The California Supreme Court asked rhetorically in a parallel 1981 decision, "Can the state tell a poor woman that it will pay for her medical care but only if she gives up her constitutional right to choose whether or not to have a child?" Language like this represents a 180-degree turn away from the rule of McRae, which held that Medicaid programs could absolutely refuse to pay for medically necessary abortions, even if they paid for every other doctor-recommended health benefit, because, "no other procedure involves the purposeful termination of a potential life." But it's all garnering almost no attention.
In fact, the most surprising aspect of the state Medicaid cases involves abortion politics rather than law. In spite of the money these rulings free up for abortions, the decisions rarely make it past Page B6 of the local newspapers. Pro-life protesters don't rally outside state court buildings during these cases or work afterward to unseat the elected judges who voted against them. The main reason for this barely-a-murmur local response is that the national pro-life groups prefer to focus on federal court and legislative battles. Right now, for instance, the National Right to Life Committee and the Family Research Council are charging hardest against reproductive cloning and "partial-birth" abortions—issues that are emotionally wrenching and play well in the media—even if they actually only impact a tiny number of pregnancies. You have to comb their Web sites for a mention of state Medicaid-funded abortions. Which makes sense, if you think about it: Who wants to keep track of 21 little abortion cases if you can make your point—and your money—by spotlighting one national issue without ever leaving the comfort of your D.C. office?
Local pro-life leaders fill the gap left by the national groups with their own limited resources. The Arizona ruling came down a week before the November election. The state's Right to Life chapter was happy when its press release blasting the decision drummed up a sympathetic column in the Arizona Republic. The chapter's president, John Jakubczyk, said, "We care about this," but conceded that the case wasn't a "campaign issue per se."
But if Arizona fits the usual low-profile pattern, Texas is the exception. After a state appeals court similarly ordered Medicaid funding for abortions last year, John Cornyn, then state attorney general and now senator-elect, appealed to the Texas Supreme Court. Sixty-six state representatives and senators filed a friend-of-the-court brief on Cornyn's side. The Texas Alliance for Life took out a full-page newspaper ad headlined "What If Your Taxes Paid for Abortions?" The state's high court has now waited for more than a year to rule in the case; the rumor is that the justices didn't want to issue a decision until after the November elections.
But whatever happens in Texas, winning these small battles in state court looks like a pretty good strategy to pro-choice lawyers, even if they were first forced there by necessity. At least in this arena, they seem to have diffused their opponents' usual fervor by taking the fight down to the local level. And they've further discovered that a significant number of state judges all over the country are open to broadening the right to choose. These judges have been receptive to pro-choice arguments in areas other than Medicaid funding as well: According to the Alan Guttmacher Institute, a nonprofit that focuses on sexual and reproductive health, 10 state courts have blocked parental consent and notification laws, three have enjoined waiting periods, and three have stopped restrictions on post-viability abortions from going into effect. So, it's not just on state Medicaid decisions that pro-choice advocates are chipping away at federal law; they are winning locally what they can't seem to score nationally.
There's a nice irony here: Conservatives, who usually argue for state-based solutions, and liberals, who usually argue for federal ones, find themselves switching sides. It's an odd swap of strategy (and principle) that's at least somewhat reminiscent of the upside-down notions of federalism that pervaded the arguments in Bush v. Gore. It takes some sleight of hand on the part of conservatives to go from lauding the states as incubators of democratic innovation to blasting them for daring to disagree with their federal betters—although it's no more astonishing than hearing liberals importuning state courts to save them from the mistakes of the federal Constitution. Maybe consistency is too much to ask for here. But the lurking question in these abortion cases is whether, all the yammering about federalism notwithstanding, "states' rights" is anything more than a label of convenience to be grabbed by whomever the grabbing is good for.