Simat Corp. v. Arizona Health Care Cost Containment Sys.,

1 CA-CV 00-0334
DEPARTMENT E
O P I N I O N
Filed 8-7-01

IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
)
SIMAT CORP. d/b/a ABORTION SERVICES OF
)
PHOENIX; ARIZONA REPRODUCTIVE MEDICINE
)
& GYNECOLOGY, LTD., ROBERT H. TAMIS,
)
M.D.; FAMILY PLANNING ASSOCIATES
MEDICAL GROUP; JOEL B. BETTIGOLE, M.D.; )
)
DAMON S. RAPHAEL, M.D.; TUCSON WOMAN’S
CLINIC; and WILLIAM A. MEYER, JR., M.D.,)
)
Plaintiffs-Appellees,
)
)
v.
)
)
ARIZONA HEALTH CARE COST CONTAINMENT
)
SYSTEM, and PHYLLIS BIEDESS, in her
)
capacity as Director of AHCCCS,
)
)
)
Defendants-Appellants.
_______________________________________ )
Appeal from the Superior Court of Maricopa County
Cause No. CV 99-014614
The Honorable Kenneth L. Fields, Judge
REVERSED AND REMANDED

Johnston & Kelly, P.L.C.
by
Logan T. Johnston
Attorneys for Defendants-Appellants
LaVoy & Chernoff, PC
by
Christopher LaVoy
and
Mark Chernoff
and
Center for Reproductive Law & Policy
by
Bebe J. Anderson
and
Suzanne Novak
and
Deborah Baumgarten
Attorneys for Plaintiffs-Appellees
Mueller & Drury, P.C.
by
James P. Mueller

Phoenix

Phoenix

New York, N.Y.

Scottsdale

Northbrook, Ill.

and
Paul Benjamin Linton
and
Center for Arizona Policy
Scottsdale
by
Len L. Munsil
Attorneys for Amici Curiae, Members of the Arizona Legislature
_________________________________________________________________
T H O M P S O N, Judge
¶1
This appeal presents three issues of first impression in
Arizona: (1) Whether the right to privacy under Article 2, § 8 of
the Arizona Constitution requires the State of Arizona (the state)
and the Arizona Health Care Cost Containment System (AHCCCS) to
cover “medically necessary” abortions in spite of Arizona law that
expressly prohibits the state from doing so; (2) whether the
statutory scheme violates Article 2, § 13 of the Arizona
Constitution (privileges and immunities); and (3) whether the
statutory scheme violates Article 4, part 2, § 19(13) of the
Arizona Constitution (prohibition against special laws). We hold
that the Arizona statutes and regulations prohibiting the state
from funding medically necessary abortions are constitutional and
reverse the decision of the trial court.
FACTUAL AND PROCEDURAL HISTORY
¶2
The facts are not in dispute. The appellees are doctors
who provide abortion services. They each see a significant number
of AHCCCS patients per year. All of the doctors have had patients
with medical conditions which, together with pregnancy, threaten
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their health but not necessarily their lives. Such medical
conditions include heart disease, diabetes, kidney disease,
polyostosis, liver disease, chronic renal failure, asthma, Marfan’s
syndrome, arthritis, inflammatory bowel disease, gall bladder
disease, hypertension, uterine fibroid tumors, epilepsy, toxemia,
and lupus. Neither AHCCCS nor federal Medicaid funds abortion
services unless the mother’s life is threatened or she is a victim
of rape or incest. However, medically necessary abortions often
must be performed at a hospital and can cost thousands of dollars.
Women who receive AHCCCS benefits have incomes at or below 140% of
the federal poverty level, and privately raising funds for an
abortion can be a hardship for many of these women. The majority
of AHCCCS-eligible women who seek to obtain non-covered, medically
necessary abortions are ultimately able to do so, however.
¶3
The appellees filed a complaint in superior court
requesting declaratory and injunctive relief, alleging that the
Arizona law prohibiting AHCCCS coverage of “almost all” medically
necessary abortions violates the Arizona Constitution. Specific-
ally, the complaint alleged that Arizona’s ban on funding medically
necessary abortions for AHCCCS recipients violates Article 2, § 8
(right to privacy), Article 2, § 4 (due process), Article 2, § 13
(equal privileges and immunities), and Article 4, part 2, § 19(13)
(prohibition against special laws). The state moved to dismiss the
complaint for failure to state a claim. The appellees filed a

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motion for summary judgment, and the state filed a cross-motion for
summary judgment. The trial court denied the state’s motion to
dismiss the complaint and cross-motion for summary judgment and
granted the appellees’ motion for summary judgment. It issued a
permanent injunction prohibiting the enforcement of Arizona Revised
Statutes Annotated (A.R.S.) § 35-196.02, and ordered the state to
fund medically necessary abortions to the same extent that it funds
other pregnancy-related services. The state filed a petition for
special action. This court declined to accept special action
jurisdiction. The state timely appealed. We have jurisdiction
pursuant to A.R.S. § 12-120.21(A)(1).
DISCUSSION
¶4
This appeal requires us to determine whether A.R.S. § 35-
196.02 violates the Arizona Constitution. The constitutionality of
a statute involves a question of law, which we review de novo.
Little v. All Phoenix S. Cmty. Mental Health Ctr., Inc., 186 Ariz.
97, 101, 919 P.2d 1368, 1372 (App. 1995). We will presume that a
statute is constitutional. Tucson Elec. Power Co. v. Apache
County, 185 Ariz. 5, 11, 912 P.2d 9, 15 (App. 1995).
¶5
Section 35-196.02, entitled “Use of public funds for
abortion prohibited,” provides:
Notwithstanding any provisions of law to the contrary, no
public funds nor tax monies of this state . . . nor any
federal funds passing through the state treasury or the
treasury of any political subdivision of this state may
be expended for payment to any person or entity for the
performance of any abortion unless an abortion is
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necessary to save the life of the woman having the
abortion.
Administrative regulations pertaining to AHCCCS and its scope of
services likewise exclude abortions not authorized under federal or
state law and abortion counseling from AHCCCS coverage. See Ariz.
Admin. Code R9-22-205(B)(4), R9-22-215, R9-30-205, R9-30-215.
AHCCCS does pay for abortions for rape and incest victims. See
AHCCCS Medical Policy for Maternal and Child Health, Chapter 400,
Policy 410.
A.R.S. § 35-196.02 Does Not Violate Article 2, § 8 of the Arizona
Constitution
¶6
The trial court found that A.R.S. § 35-196.02 and the
AHCCCS regulations pertaining to abortions violate Article 2, § 8
of the Arizona Constitution. That constitutional provision states:
No person shall be disturbed in his private affairs, or
his home invaded, without authority of law.
Arizona courts have described the right to privacy provided for in
the Arizona Constitution as the “right to be let alone.” See Reed
v. Real Detective Pub. Co., 63 Ariz. 294, 302, 162 P.2d 133, 141
(1945).
¶7
In Roe v. Wade, 410 U.S. 113, 152-53 (1973), the United
States Supreme Court concluded that “a right of personal privacy,
or a guarantee of certain areas or zones of privacy, does exist
under [the Due Process Clause of the United States] Constitution”
and that “[t]his right of privacy . . . is broad enough to
encompass a woman’s decision whether or not to terminate her
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pregnancy.” In 1980, in Harris v. McRae, 448 U.S. 297, the Supreme
Court considered the constitutionality of the Hyde Amendment, which
prohibits the use of federal funds to reimburse states for the cost
of abortions under Medicaid except when the mother’s life is in
danger or she is a victim of rape or incest in light of a woman’s
constitutional right to an abortion. The Court concluded that the
Hyde Amendment was constitutional, stating:
[I]t simply does not follow that a woman’s freedom of
choice carries with it a constitutional entitlement to
the financial resources to avail herself of the full
range of protected choices. The reason why was explained
in [Maher v. Roe, 432 U.S. 464 (1977)]: although
government may not place obstacles in the path of a
woman’s exercise of her freedom of choice, it need not
remove those not of its own creation. Indigency falls in
the latter category. The financial constraints that
restrict an indigent woman’s ability to enjoy the full
range of constitutionally protected freedom of choice are
the product not of governmental restrictions on access to
abortions, but rather of her indigency. Although
Congress has opted to subsidize medically necessary
services generally, but not certain medically necessary
abortions, the fact remains that the Hyde Amendment
leaves an indigent woman with at least the same range of
choice in deciding whether to obtain a medically
necessary abortion as she would have had if Congress had
chosen to subsidize no health care costs at all. We are
thus not persuaded that the Hyde Amendment impinges on
the constitutionally protected freedom of choice
recognized in Wade.
Although the liberty protected by the Due Process
Clause affords protection against unwarranted government
interference with freedom of choice in the context of
certain personal decisions, it does not confer an
entitlement to such funds as may be necessary to realize
all the advantages of that freedom. To hold otherwise
would mark a drastic change in our understanding of the
Constitution. It cannot be that because government may
not prohibit the use of contraceptives, Griswold v.
Connecticut, 381 U.S. 479, or prevent parents from

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sending their child to a private school, Pierce v.
Society of Sisters, 268 U.S. 510, government, therefore,
has an affirmative constitutional obligation to ensure
that all persons have the financial resources to obtain
contraceptives or send their children to private schools.
To translate the limitation on governmental power
implicit in the Due Process Clause into an affirmative
funding obligation would require Congress to subsidize
the medically necessary abortion of an indigent woman
even if Congress had not enacted a Medicaid program to
subsidize other medically necessary services. Nothing in
the Due Process Clause supports such an extraordinary
result. Whether freedom of choice that is constitu-
tionally protected warrants federal subsidization is a
question for Congress to answer, not a matter of
constitutional entitlement. Accordingly, we conclude
that the Hyde Amendment does not impinge on the due
process liberty recognized in Wade.
448 U.S. at 316-18 (footnotes omitted).
¶8
While “decisions of the United States Supreme Court have
great weight in interpreting those provisions of the state
constitution which correspond to the federal provisions,” we do not
blindly follow federal precedent. Pool v. Superior Court, 139
Ariz. 98, 108, 677 P.2d 261, 271 (1984). The appellees urge that
we should not follow Harris v. McRae because “the Arizona
Constitution provides independent, and often greater, protection of
individual rights” and because the Arizona Constitution contains an
explicit privacy provision while the federal constitution does not.
¶9
The appellees cite State v. Bolt, 142 Ariz. 260, 689 P.2d
519 (1984). In Bolt, the Arizona Supreme Court considered Article
2, § 8 of the Arizona Constitution in the context of a warrantless
entry of police into an Arizona citizen’s home. Id. at 263, 689
P.2d at 522. Our supreme court concluded that a warrantless entry
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of a home in the absence of exigent circumstances violated the
Arizona Constitution’s guarantee of the right to privacy. Id. at
265, 689 P.2d at 524. Focusing on the specific language in Article
2, § 8, the court stated:
While we are cognizant of the need for uniformity in
interpretation, we are also aware of our people’s
fundamental belief in the sanctity and privacy of the
home and the consequent prohibition against warrantless
entry. We believe that it was these considerations that
caused the framers of our constitution to settle upon the
specific wording in Article 2, § 8.
Id. at 264, 689 P.2d at 523.
¶10
Nothing in Article 2, § 8 suggests that the framers of
the Arizona Constitution intended the right to privacy under our
constitution to create a right of Arizona citizens to subsidized
abortions to which they are not entitled under the United States
Constitution, even if Arizona citizens have a greater right to
privacy under the Arizona Constitution.
¶11
The appellees cite a number of opinions from other
jurisdictions in which state courts have found that their states’
refusal to fund abortions for Medicaid-eligible women violated a
state constitutional right to privacy. See Comm. to Defend Reprod.
Rights v. Myers, 625 P.2d 779 (Cal. 1981); Doe v. Maher, 515 A.2d
134 (Conn. Super. Ct. 1986); Moe v. Sec’y of Admin. & Fin., 417
N.E.2d 387 (Mass. 1981); Women of Minn. v. Gomez, 542 N.W.2d 17
(Minn. 1995). There is nothing in our state’s jurisprudence that
would suggest a similar result. Appellees cite no Arizona cases

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that hold that the right to privacy under the Arizona Constitution
is broader in abortion matters than under the federal constitution.
In Florida, where, unlike here, state supreme court precedent holds
that Florida citizens’ right to privacy is broader in abortion
matters under the Florida Constitution, see In re T.W., 551 So. 2d
1186, 1192 (Fla. 1989), it has nonetheless been held that the
government’s decision not to fund abortions does not impinge on the
right to choose. The Florida Supreme Court stated:
Although the Florida Legislature has opted to subsidize
medically necessary services generally, but not certain
medically necessary abortions, the fact remains that
Florida’s Medicaid program leaves an indigent woman with
at least the same range of choice in deciding whether to
obtain a medically necessary abortion as she would have
had if the Legislature had chosen to subsidize no health
care costs at all. The right of privacy in the Florida
Constitution protects a woman’s right to choose an
abortion. But contrary to the petitioners’ arguments,
the right of privacy does not create an entitlement to
the financial resources to avail herself of this choice.
Poverty may make it difficult for some women to obtain
abortions. Nevertheless, the State has imposed no
restriction on access to abortions that was not already
present. Therefore, we find that the rules in question
do not violate the right of privacy in the Florida
Constitution.
Renee B. v. Fla. Agency for Health Care Admin., No. SC00-989, 2001
WL 776533, at *4 (Fla. July 12, 2001). Courts in Michigan, North
Carolina, and Pennsylvania have reached a similar result. See Doe
v. Dep’t of Soc. Services, 487 N.W.2d 166 (Mich. 1992); Rosie J. v.
N.C. Dep’t of Human Res., 491 S.E.2d 535 (N.C. 1997); Fischer v.
Dep’t of Pub. Welfare, 502 A.2d 114 (Pa. 1985).

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¶12
The trial court relied on Rasmussen v. Fleming, 154 Ariz.
207, 741 P.2d 674 (1987). In Rasmussen, our supreme court held
that the right to refuse medical treatment is a state
constitutional right under Article 2, § 8. Id. at 215, 741 P.2d at
682. The Rasmussen court stated that “[a]n individual’s right to
chart his or her own plan of medical treatment deserves as much, if
not more, constitutionally-protected privacy than does an
individual’s home or automobile.” Id. Appellees argue that the
statutory scheme violates an AHCCCS patient’s right to chart her
medical treatment. They argue that once government undertakes to
provide medical care to the indigent it cannot restrict the care.
However, even if an AHCCCS patient has a right to direct her
medical care under the Arizona Constitution, it does not follow
that the patient has a constitutional right to receive financial
assistance to obtain all potential treatments. The patient is free
to elect to undergo an abortion and is not penalized by the statute
for doing so. Government is not interfering with a woman’s right
to direct her medical care in this instance. Instead, any
impairment comes from the woman’s inability to pay for an abortion.
See Maher, 432 U.S. at 474 (“The State may have made childbirth a
more attractive alternative, thereby influencing the woman’s
decision, but it has imposed no restriction on access to abortions
that was not already there. The indigency that may make it
difficult – and in some cases, perhaps, impossible for some women

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to have abortions is neither created nor in any way affected by the
Connecticut regulation (limiting state Medicaid benefits for
abortions to those that are ‘medically necessary’)”).
¶13
Because we disagree with the trial court’s conclusion
that A.R.S. § 35-196.02 violates Article 2, § 8 of the Arizona
Constitution, we now address the appellees’ remaining constitu-
tional claims.
A.R.S. § 35-196.02 Does Not Violate the Privileges and Immunities
Clause of the Arizona Constitution
¶14
Article 2, § 13 of the Arizona Constitution provides:
No law shall be enacted granting to any citizen, class of
citizens, or corporation other than municipal, privileges
or immunities which, upon the same terms, shall not
equally belong to all citizens or corporations.
Arizona courts equate Article 2, § 13 with the Equal Protection
Clause of the Fourteenth Amendment. See Phoenix Newspapers, Inc.
v. Purcell, 187 Ariz. 74, 77, 927 P.2d 340, 343 (App. 1996).
¶15
The appellees argue that A.R.S. § 35-196.02 creates three
impermissible governmental classifications. First, they argue, it
creates an impermissible classification between low-income women
who do not wish to have an abortion and low-income women who do
wish to have an abortion. Second, they argue that the statutory
scheme creates an impermissible classification between low-income
men who seek medically necessary health care and low-income women
who seek medically necessary health care through AHCCCS. Finally,
they argue that the statutory scheme creates an impermissible

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classification between life-saving and health-preserving abortions.
¶16
In Harris v. McRae, 448 U.S. at 322, the Supreme Court
also considered whether “the fact that . . . although federal
reimbursement is available under Medicaid for medically necessary
services generally, the Hyde Amendment does not permit federal
reimbursement of all medically necessary abortions” violates the
guarantee of equal protection under the Fifth Amendment of the
United States Constitution. It concluded that it did not, finding
that the Hyde Amendment was not predicated on a constitutionally
suspect classification and that there was a rational basis for the
law. Id.
¶17
In Williams v. Zbaraz, 448 U.S. 358 (1980), a case the
Supreme Court decided on the same day as Harris v. McRae, the
Court considered whether an Illinois statute prohibiting state
medical assistance payments for all abortions except those
necessary to save the life of the woman seeking the abortion
violated the Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution. Citing Harris v. McRae, the Court
found that the funding restrictions in the Illinois statute did not
violate equal protection. Williams, 448 U.S. at 369.
¶18
Like the United States Supreme Court, we conclude that
Arizona’s statutory scheme is not predicated on a constitutionally
suspect classification. The Arizona law does not discriminate on
the basis of sex. Nor does the classification impinge upon the

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exercise of a fundamental right. See Maher v. Roe, 432 U.S. at
474. Moreover, the statutory scheme is rationally related to a
legitimate government purpose, because the state has a legitimate
interest in protecting unborn life and in promoting childbirth.
See Doe v. Dep’t of Soc. Services, 487 N.W.2d at 178-79.
A.R.S. § 35-196.02 Does Not Violate the Arizona Constitution’s
Prohibition of Special Laws
¶19
Finally, the appellees argue that the statutory scheme
violates Article 4, Part 2, § 19 of the Arizona Constitution, which
prohibits the enactment of “local or special laws . . . [g]ranting
to any corporation, association, or individual, any special or
exclusive privileges, immunities, or franchises.” They argue that
the AHCCCS program violates the prohibition of special laws by
“providing all necessary health services to eligible individuals
who have health conditions that can be remedied or relieved by a
service other than termination of pregnancy while denying health
services to eligible individuals who have health conditions that
can only be remedied or relieved by termination of pregnancy.” We
disagree. The services that AHCCCS does provide to Medicaid-
eligible individuals are not special or exclusive simply because
AHCCCS does not provide medically necessary abortions.

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CONCLUSION
¶20
The trial court erred in holding that A.R.S. § 35-196.02
and the corresponding regulations violate the right of privacy
under the Arizona Constitution. Moreover, Arizona’s statutory
scheme does not violate Article 2, § 13 or Article 4, Part 2, § 19
of the Arizona Constitution. Accordingly, we reverse the decision
of the trial court and remand for entry of summary judgment in
favor of the state. The permanent injunction against the
enforcement of A.R.S. § 35-196.02 is lifted. The appellees’
request for costs and attorneys’ fees is denied.

___________________________________
JON W. THOMPSON, Judge

CONCURRING:

______________________________
ANN A. SCOTT TIMMER
Presiding Judge

______________________________
EDWARD C. VOSS, Judge