Battles over Medicaid Funding for Abortion 

Conflicts about whether Medicaid can pay for abortion have raged since the 1970s. In recent years, however, courts are confronting state constitutional questions about Medicaid-funded abortion with more frequency. Litigation around this question has increased as more state courts find their constitutions protect abortion and citizens pass abortion-rights amendments.

From the Hyde Amendment to Trump’s Budget Bill

Medicaid is funded jointly by the states and federal government. The Hyde Amendment, passed by Congress in 1976, barred individuals from using federal Medicaid dollars for abortion reimbursement. As for state dollars, there were a variety of policies: In addition to the states where abortion is a crime, another 17 states followed the Hyde Amendment in their own policies. But anti-abortion groups are pushing to further limit Medicaid availability for abortions, and they have scored some recent victories.

One focus is a strategy to defund Planned Parenthood and other abortion providers by blocking them from participating in Medicaid, even though these providers are being reimbursed only for non-abortion services. As part of the “One Big Beautiful Bill Act,” Congress imposed a one-year prohibition on Medicaid participation on health care providers that primarily provide reproductive health care and also offer abortions. Following last month’s U.S. Supreme Court decision in Medina v. Planned Parenthood of South Atlantic, which held that states could exclude Planned Parenthood from their Medicaid programs without violating a federal provision affording Medicaid patients their choice of provider, some states are likely to kick Planned Parenthood out of state Medicaid programs.

At the same time, voters have passed amendments to protect abortion. Since the U.S. Supreme Court said there was no federal right to abortion in 2022’s Dobbs v. Jackson Women’s Health Organization, voters in 10 states have approved abortion-rights initiatives, including in conservative states. And many state courts have said their constitutions provide at least some abortion protections even absent an explicit amendment.

Yet bans on Medicaid reimbursement for abortion are on the books even in states that protect abortion. Across the country, litigants are arguing that these bans violate state constitutional rights to abortion, privacy, equal rights, and more.

Setback for Abortion Advocates in Michigan

A Michigan trial judge recently dismissed a challenge to the state’s Medicaid abortion restriction on standing grounds. The suit was filed by the ACLU on behalf of the YMCA of Kalamazoo, which maintains a fund that provides financial support for people seeking abortions. The YMCA argued that the Michigan law violated a right to reproductive freedom, discriminated on the basis of sex, and disfavored a protected procedure — abortion — in favor of childbirth.

The judge, however, did not reach the constitutionality of the ban. Instead, he held that the YMCA lacked standing. He rejected the YMCA’s contention that its interests were directly harmed by the statute — because as much as 77 percent of its fund went to Medicaid-eligible abortion seekers, the YMCA argued, it was less able to help other deserving patients with their costs. The judge reasoned that Michigan’s amendment applied only to an individual right to reproductive freedom. While an organization might have standing to sue on behalf of its individual members, the YMCA did not have any such members. And though the amendment did protect corporations and individuals from being penalized for providing certain kinds of care, the YMCA wasn’t an abortion provider.

The court also addressed whether the YMCA could rely on so-called taxpayer standing, which allows anyone who pays taxes to challenge certain public expenditures. The court stressed that it could find no examples of taxpayer standing to force the government to spend money. Such a reading was implausible, the court reasoned, because it would open the door to any number of challenges to budget decisions.

Victories Based on Privacy

The Michigan court is not the first to hear a case challenging a ban on using Medicaid to fund abortion. In March, a district judge in Montana issued an injunction blocking rules prohibiting Medicaid reimbursement for abortion patients unless they were survivors of rape or incest or suffered a health condition that would put them “in danger of death.” The order also blocked rules mandating that only physicians (versus other providers) could perform Medicaid abortions, narrowly defining medical necessity for abortion procedures, and requiring prior authorization in person for such procedures. The judge said the rules violated the state’s equal protection clause — because the state singled out abortion for restrictions that didn’t apply to other reproductive health services — and state constitutional privacy protections.

The Montana Supreme Court has long held that the state constitution’s right to privacy protects abortion. The state argued that the right to privacy didn’t apply to the case because it involved the state’s discretion about how to allocate funds. The lower court disagreed: Because the state had chosen to fund some services through Medicaid, it couldn’t deny benefits for a constitutionally protected procedure just because lawmakers disliked it.

Because the rules infringed upon a fundamental right — the right to abortion — the court applied strict scrutiny, the most demanding form of judicial review. The physician-only restrictions, the court reasoned, made little sense when other providers offered an equally high quality of care. Similarly, the court said, the state had no evidence that prior authorization — or an in-person visit, which would preclude telehealth care — improved patient safety. The court also rejected the strict definition of medical necessity as having no health-based reason. The state’s flat ban on reimbursement for any case not involving rape, incest, or a threat to life presented an even easier case: The provisions were virtually identical to several struck down by a Montana court in 1995.

Equal Rights Theories

Other cases have unfolded based on an argument for equal rights. In Nevada, an organization that helps cover abortion costs for low-income patients sought a writ of mandamus establishing that the state’s Equal Rights Amendment — which prohibits discrimination on the basis of sex — required reimbursement for abortion services. A writ of mandamus is an extraordinary remedy, available only when there is no alternative that would grant the parties a quick and effective solution. The court nevertheless agreed that a writ was available to require state officials to discharge a duty required under the ERA and because the state’s actions in denying reimbursement were “arbitrary or capricious.”

A Nevada trial court rejected the state’s contention that discrimination based on pregnancy or abortion was not sex discrimination. “A law like the coverage exclusion that targets a sex-specific trait for worse treatment is . . . no less facially discriminatory than a law explicitly targeting ‘women,’” the court said. Even if the provision were not sex-based discrimination, the court concluded, it would fail rational basis: The state could not justify the Medicaid ban based on cost savings because it would actually be more expensive than any alternative.

The court also rejected the state’s arguments that the plaintiff didn’t have standing, reasoning that eliminating the coverage exclusion would make a significant difference for the organization because the exclusion had strained its resources and limited its ability to help clients. The state did not appeal, so the lower court’s decision stands. 

The Pennsylvania Supreme Court similarly held 3–2 last year that a state law allowing Medicaid reimbursement only in cases of rape, incest, or threats to life was presumptively unconstitutional under that state’s Equal Rights Amendment. The plaintiffs argued that the Medicaid exclusion counted as sex discrimination because no equivalent provision applied to men and because the state singled out abortion for exclusion while covering more expensive reproductive services. The three justices in the majority seemed to find this reasoning persuasive, while two of the three also reasoned that there was a fundamental right to abortion under the state constitution and that the state’s Medicaid exclusion discriminated against women who exercised that right. The third justice in the majority found it unnecessary to resolve this question given the court’s decision on the equality argument. The court remanded the case for further proceedings.

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The litigation around Medicaid funding for abortion is a reminder of how state courts may define reproductive rights quite differently — and far more expansively — than did the federal courts before Dobbs overturned Roe v. Wade’s abortion protections, when several state courts found that banning Medicaid reimbursement for abortion violated state equality provisions. Today, with Roe gone and more states amending their constitutions to protect reproductive rights, there is new urgency surrounding questions about whether and how state constitutions protect Medicaid patients seeking abortion.

Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California Davis School of Law. Her new book, Personhood: The New Civil War over Reproduction, is now available.

Suggested Citation: Mary Ziegler, Battles over Medicaid Funding for Abortion, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Jul. 28, 2025), https://statecourtreport.org/our-work/analysis-opinion/battles-over-medicaid-funding-abortion