OAG 1994-017.

• Case Date: April 11, 1994
• Court: Ohio

Ohio Attorney General Opinions 1994. OAG 1994-017. April 11, 1994OPINION NO. 1994-017Arnold R. Tompkins, Director Department of Human Services 30 East Broad Street Columbus, Ohio 43266-0423Dear Director Tompkins: You have requested an opinion concerning Ohio's compliance with federal provisions governing abortion under the Medicaid program. A state's participation in the Medicaid program is voluntary, but once a state elects to participate it must comply with federal requirements. See 42 U.S.C.A. §§1396-1396c (West 1992 & Supp. 1993). If a state that participates in the Medicaid program does not continue to comply with all federal requirements, the state may lose part or all of its federal funding.(fn1)Federal provisions governing the funding of abortions appear in Section 509 of Pub. L. No. 103-112, which states:

None of the funds appropriated under this Act shall be expended for any abortion except when it is made known to the Federal entity or official to which funds are appropriated under this Act that such procedure is necessary to save the life of the mother or that the pregnancy is the result of an act of rape or incest.

Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 1994, Pub. L. No. 103-112, §509, 107 Stat. 1082, 1113 (1993). Under Section 509 of Pub. L. No. 103-112, federal funding is available for abortions performed to save the life of the mother or to terminate pregnancies resulting from rape or incest. Prior to the enactment of Section 509, a corresponding provision known as the Hyde Amendment permitted federal funds to be used for abortions only if the life of the mother would be endangered if the fetus were carried to term, and stated expressly that individual states were "free not to fund abortions to the extent that they in their sole discretion deem appropriate." Department of Health and Human Services Appropriation Act, 1983, Pub. L. No. 97-377, §204, 96 Stat. 1830, 1894 (1982). Several different versions of the Hyde Amendment have been in effect at various times. See, e.g., Departments of Labor and Health, Education, and Welfare Appropriation Act, 1977, Pub. L. No. 94-439, §209, 90 Stat. 1418, 1434 (1976).

Ohio's Participation in the Medicaid Program

The Ohio statutes authorizing participation in the Medicaid program appear in R.C. Chapter 5111. The Ohio Department of Human Services is authorized to implement the program within the state. R.C. 5111.01. Ohio's statutory provisions governing the use of public funds for abortions appear in R.C. 5101.55(C), as follows:

State or local public funds shall not be used to subsidize an abortion, unless the abortion is necessary to preserve the life or physical or mental health of the pregnant woman and this fact is certified in writing by the performing physician to the state or local agency providing the funds.

A state Medicaid program...