ACLU of Michigan sues state over Medicaid abortion ban

The ACLU of Michigan is filing a lawsuit to overturn a ban on state Medicaid funding of abortion, lawyers said Thursday, arguing it violates the reproductive rights constitutional amendment passed by voters in 2022.

“The decision not to have a child is irrelevant if an abortion is not financially possible,” said Susan Rosas, CEO of YWCA Kalamazoo, the plaintiff in the case. “By not covering the cost of abortion, Medicaid ignores the will of Michigan voters, just as it ignores the autonomy of Michigan women. In this way, the state controls what women can do with their bodies.”

It’s the latest attempt by abortion rights activists to lift remaining restrictions and define exactly what Proposition 3’s sweeping language means for patients. By banning Medicaid from covering abortions, the state is essentially creating two levels of abortion access, the lawsuit says: one for those who can afford private health insurance (which may cover abortions) and another for those who can’t.

The YWCA Kalamazoo’s reproductive health fund has covered the cost of abortions for about 150 Medicaid beneficiaries in fiscal years 2022 and 2023, according to the complaint. That money, they argue, could be used to fund other services that would improve maternal and child health, such as doula services and free or low-cost child care, if the state did not exclude abortions with that coverage gap.

The ban is also inherently discriminatory, Rosas argued. Black residents make up a disproportionate share of Michigan’s Medicaid enrollees, and black women in the U.S. are three times more likely to die from pregnancy-related causes than white women.

“Abortion care is a right protected by Michigan voters,” she said at a news conference Thursday. “When Medicaid ignores the will of Michigan voters and arbitrarily restricts access to health care, Medicaid disproportionately limits access to care, especially for people of color.”

The debate about public funds for abortion

But opponents of health insurance say that lifting the ban on federal Medicaid funding for abortion would de facto force taxpayers to subsidize abortion, regardless of their personal beliefs.

“Today, abortion-obsessed activists are once again turning to the courts to accomplish what they failed to get in the legislative process. They now hope to force Michigan taxpayers, already struggling with the financial burden of high inflation, to pay for other people’s abortions with Medicaid funds,” Amber Roseboom, president of Right to Life of Michigan, said in a statement Thursday.

“Radical activists are appeasing their big donors and special interest groups while showing total disregard for the taxpayers of Michigan and their ongoing, overwhelming opposition to funding other people’s abortions with taxpayer-funded Medicaid money.”

More than thirty years ago, Michigan voters passed the Medicaid abortion funding ban, which prohibited the use of Medicaid funds for an abortion unless to save the life of the pregnant person. (Federal funds may not be used to fund abortions under the Hyde Amendment of 1977 except in cases of rape, incest, or to save the life of the pregnant person. However, states are permitted to use their own funds to fund abortions, as 17 states currently do.)

But even last year, Democrats failed to get enough votes from their own party members to overturn the Medicaid ban, which is why this lawsuit is so necessary, said Bonsitu Kitaba, deputy legislative director of the ACLU of Michigan.

“We will use every single tool in our toolbox to ensure that every Michigander can fulfill the promise of Proposition Three and freely exercise their right to reproductive freedom,” she said. “The legislature had the opportunity to repeal this harmful and outdated law, and they failed. Now it is up to the courts to ensure that this law is overturned. Because it clearly contradicts the right to reproductive freedom that is now enshrined in the state constitution.”

Earlier this week, a Michigan Court of Claims judge issued a temporary restraining order against further restrictions on abortion, including a mandatory 24-hour waiting period.