Governor Olene Walker
210 State Capitol
Salt Lake City, Utah 84114-0601
March 10, 2004
Dear Governor Walker,
The ACLU of Utah appreciates the opportunity to comment on Third Substitute SB 68, Prohibition of Public Funding for Abortion.
The pending law would prohibit the use of public funds for abortion services, except in limited situations. We are concerned about SB 68 because the pending law has unclear and possibly widespread fiscal ramifications, and it inappropriately contradicts federal Medicaid regulations. We hope that your office recognizes that this law may therefore be impossible to implement without threatening Utah’s Medicaid funding or the funding of public health facilities that perform abortions.
While it is problematic that the fiscal ramifications are both unclear and unknown, we are primarily concerned with SB 68’s narrow waiver of the requirement that cases of rape or incest be reported to the police. The bill only allows waiver of the reporting requirement if the woman was unable to report for physical reasons or fear of retaliation. In contrast, under federal regulations concerning the use of public funds for abortion, the reporting requirement may be waived when a physician certifies that the patient cannot report for physical or psychological reasons. The Utah requirement is more restrictive and lacks the objective standard of a physician to determine whether a woman is unable to report a case of rape or incest.
By imposing eligibility requirements that are more restrictive than those permitted under federal law, SB 68 arguably places Utah’s federal Medicaid funds at risk. Further, by not participating in the Medicaid program under the terms established by Congress, the bill violates the Supremacy Clause of the U.S. Constitution.
We believe the state has an interest in both following the federal regulatory requirements to receive Medicaid funding, and in keeping abortion safe and legal for women of all economic levels. This bill is not about abortion on demand—it is about the use of public funding in unique and limited circumstances.