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Urbish v. Lamm

Supreme Court of Colorado

September 12, 1988

Mary Rita URBISH; Earl F. Dodge; William L. Woodley; Eleanor J. Boyd; Diane M. Hochevar; The Rt. Rev. James O. Mote; The Rev. Philip A. Nevels; The Rev. Francis A. Quintana; The Rev. Mr. John Woolley; The Rev. Mr. Roscoe Reed; Charles H. Buell; Jean E. Frascona; Rosalind E. Frascona; James Lewis; Michael K. Moore; Mary L. Nevels; Judith A. Quintana; Gloria Risow; Jeanne M. Woolley; Kristine Woolley; and Richard P. Woolley, Plaintiffs-Appellants,
v.
Richard D. LAMM, Governor of the State of Colorado; George S. Goldstein, Executive Director of the Colorado Department of Social Services; The Board of Social Services; The Colorado Department of Social Services; and The State of Colorado, Defendants-Appellees.

Page 758

Paul F. Lewis, Charles J. Onofrio, Denver, for plaintiffs-appellants.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Vivianne Chaumont Oates, Asst. Atty. Gen., Susan L. Warren, Deputy Atty. Gen., Denver, for defendants-appellees.

LOHR, Justice.

This appeal presents questions concerning the constitutionality of sections 26-4-105.5 and 26-15-104.5, 11 C.R.S. (1987 Supp.), and Rule 8.733, 10 C.C.R. 2505-10 (1985), which permit public funds to be used to pay for abortions that are necessary to prevent the death of a pregnant woman when every reasonable effort has been made to preserve the lives of both the woman and the unborn child. A number of individuals brought an action in Denver District Court, seeking a declaration that the statutes and the rule violate Article V, Section 50, of the Colorado Constitution, which prohibits the use of public funds for abortions except in narrowly limited circumstances. The district court upheld the statutes and the rule against the constitutional challenge and also rejected the plaintiffs' arguments that there was no statutory

Page 759

authority for the rule and that it was void for want of a sufficient fiscal impact statement. The plaintiffs appealed directly to this court because the constitutionality of a statute is in question. Sees 13-4-102(1)(b), 6A C.R.S. (1987). We affirm in part and reverse in part.

I.

In 1984 the voters of the State of Colorado adopted Article V, Section 50, of the Colorado Constitution. This section is popularly known as Amendment 3 and prohibits the use of public funds to pay for induced abortions except in narrowly defined circumstances where necessary to prevent the death of the pregnant woman. In 1985 the General Assembly adopted section 26-4-105.5, 11 C.R.S. (1987 Supp.), implementing the provisions of Amendment 3 under the Colorado Medical Assistance Act, and section 26-15-104.5, 11 C.R.S. (1987 Supp.), serving that same function under the Reform Act for the Provision of Health Care for the Medically Indigent. The language relevant to this appeal is identical in each statute. The Colorado Department of Social Services then adopted Rule 8.733, 10 C.C.R. 2505-10 (1985) (Rule 8.733), pursuant to sections 26-4-105.5 and 26-15-104.5, further detailing the criteria and procedures with respect to the use of public funds to pay the medical costs associated with abortions. Rule 8.733 was adopted first as an emergency rule and was later made permanent in August of 1985.

In October 1985 the plaintiffs, a group of individuals who are Colorado citizens and taxpayers, brought the present action in Denver District Court against the Governor, the Executive Director of the Department of Social Services, the Board of Social Services, the Colorado Department of Social Services, and the State of Colorado. The complaint sought a declaration that sections 26-4-105.5 and 26-15-104.5 (the Statutes) violate Article V, Section 50 (Amendment 3), of the Colorado Constitution by purporting to permit public funding of abortions in circumstances not allowed by Amendment 3. The complaint also sought the district court's determination that Rule 8.733 violates Amendment 3 for that same reason. The complaint further alleged that Rule 8.733 was passed without statutory authority and without compliance with section 24-4-103(8)(d), 10 C.R.S. (1987 Supp.), a part of the State Administrative Procedure Act, because the fiscal impact statement required by that statute was inadequate. The plaintiffs also requested the district court to issue a permanent injunction preventing the Colorado Department of Social Services from enforcing Rule 8.733. On September 22, 1986, the district court issued a written order holding that section 26-4-105.5 [1] and Rule 8.733 were constitutional, that the Rule was adopted pursuant to adequate statutory authority, and that the fiscal impact statement complied with the State Administrative Procedure Act. The individual plaintiffs then brought this appeal.

We first consider in general the scope of the constitutional prohibition of the use of public funds to pay for abortions. We then address the appellants' constitutional challenges to Rule 8.733 and their contentions that Rule 8.733 was not validly adopted because of the absence of statutory authority and the insufficiency of the fiscal impact statement. Finally, we address the appellants' challenges to the statutes.

II.

Colo. Const. art. V, § 50 (Amendment 3), provides:

No public funds shall be used by the State of Colorado, its agencies or political subdivisions to pay or otherwise reimburse, either directly or indirectly, any person, agency or facility for the performance of any induced abortion, PROVIDED HOWEVER, that the General Assembly, by specific bill, may authorize and appropriate funds to be used for those medical services necessary to prevent

Page 760

the death of either a pregnant woman or her unborn child under circumstances where every reasonable effort is made to preserve the life of each.

In construing a constitutional amendment, we should ascertain and give effect to the intent of those who adopted it. Cooper Motors v. Bd. of County Comm'rs of Jackson County, 131 Colo. 78, 83, 279 P.2d 685, 688 (1955). Because Amendment 3 was adopted by popular vote, we must seek to determine what the people believed the amendment to mean when they accepted it as their fundamental law. In re Senate Resolution No. 2 Concerning Constitutionality of House Bill No. 6, 94 Colo. 101, 113, 31 P.2d 325, 330 (1934). To this end, words used in the Constitution are to be given the natural and popular meaning usually understood by the people who adopted them. A-B Cattle Co. v. United States, 589 P.2d 57, 61, 196 Colo. 539, 545 (1978); Prior v. Noland, 68 Colo. 263, 267, 188 P. 729 (1920). With these principles as our guide, we must ascertain the meaning of Amendment 3.

Amendment 3 prohibits the use of public funds to pay for induced abortions subject to a narrow exception. It is the scope of that exception that is the focus of the present case. [2] The exception, for purposes of definiteness and clarity, is broader in one respect than the prohibition to which it applies. Even though the prohibition relates only to the use of public funds for abortions, the exception makes it clear that public funds may be used for "those medical services necessary to prevent the death of either a pregnant woman or her unborn child." Since an abortion, by definition, results in the death of the unborn child, any medical services that prevent the death of the unborn child must necessarily consist of procedures other than abortion.

Some examples may serve to provide clarity. If a pregnant woman's life were endangered by the continuation of the pregnancy, the amendment would permit the public funding of an abortion to save her life, provided that every reasonable effort had been made to preserve the unborn child's life. If the pregnant woman's life were not endangered, but the unborn child's life were endangered, the amendment would permit public funding for those medical services necessary to prevent the unborn child's death. However, the amendment would not authorize the public funding of an abortion in such an instance, for the abortion would not be necessary to prevent the death of the woman and, by definition, would cause the death of the unborn child. As a final illustration, where a pregnant woman's life would be endangered if she carried an unborn child to term but would not be endangered if she carried the child to the point at which the child would be capable of living outside of the mother's womb (the point of "viability") and could be delivered by a medical procedure such as caesarean section, the amendment would not allow the public funding of an abortion.

Taken as a whole, Amendment 3 expresses the intention that no induced abortion shall be paid for by public funds unless necessary to prevent the death of the pregnant woman and unless every reasonable effort also has been made to preserve the life of the unborn child. It also makes clear, however, that medical services other than abortions may be publicly funded when necessary to prevent the death of either the pregnant woman or the unborn child under circumstances where every reasonable effort is made to preserve the life of each. It is against this understanding of the purpose and meaning of Amendment 3 that the appellants' constitutional challenges to the Statutes and Rule 8.733 must be evaluated.

III.

We now address the appellants' various challenges to Rule 8.33. The appellants first challenge the constitutionality of Rule 8.733 and then contest the validity of the rule on the basis of lack of statutory authorization and insufficiency of the fiscal impact

Page 761

statement. We address the appellants' arguments in that order. [3]

The appellants first assert that Rule 8.733 violates Amendment 3 by authorizing the public funding of abortions in circumstances in which Amendment 3 prohibits such funding. In evaluating this argument we are guided by the principle that administrative regulations are presumed valid and will be set aside only when the challenging party establishes their invalidity beyond a reasonable doubt. Pigg v. State Dept. of Highways, 746 P.2d 961, 967 (Colo.1987); Augustin v. Barnes, 626 P.2d 625, 627-28 (Colo.1981); Moore v. Dist. Court, 184 Colo. 63, 67, 518 P.2d 948, 951 (1974).

Rule 8. 733 provides:

Abortion services shall not be a benefit of the Colorado Medical )

Assistance

Program except when the life of the pregnant woman or her child is )

endangered as determined by the attending physician, and that (sic) )

every

reasonable effort has been made to preserve respective lives. The )

procedure

must be performed by a licensed physician in a licensed health care )

facility.

However, such services may be performed in other than a licensed health )

care

facility if, in the medical judgment of the attending physician, the ) A

life of the

pregnant woman or her umborm child is substantially threatened and a )

transfer

to a licensed health care facility would further endanger the life of )

the pregnant

woman or the unborn child. Such medical services may be performed in )

other

than a licensed health care facility if the medical services are )

necessitated by a

life-endangering circumstance and if there is no licensed health care )

facility

within a thirty-mile radius of the place where such medical services )

are

performed. )

Any claim for payment must be accompanied by a case summary which )

includes

the following information: )

1. Name, address, and age of the pregnant woman; )

2. Gestational age of the unborn child; )

3. Description of the medical condition which necessitated the ) B

performance of

the abortion; )

4. Services performed: )

5. Facility in which the abortion was performed; and )

6. Date of service. )

If the abortion is performed as a result of the prsence of a lethal )

medical

condition which would result in the pending death of the unborn child )

during the

term of pregnancy or at birth, the documentation must also be ) C

accompanied by

a statement from another physician who is not the attending physician )

certifying

the necessity of the abortion as a result of the ...


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