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Paul Stam, Jr. v. State of North Carolina et al.

ACLU Analysis: “The Legal Ability of Cities and Counties to Provide Health Insurance which Includes Abortion Coverage to Employees”

Wake County Attorney Scott Warren says that if the county retains coverage of elective abortions in its health insurance program for employees, “I can’t say, if we got sued, we’d win.” And Warren says it’s his job is to advise county leaders how to avoid expensive litigation wherever possible.

Warren called in response to our story (“Wake Commission mulls abortion coverage for county employees“). He’d asked (as we reported) that we submit questions to him in writing. We did, in an e-mail, but the e-mail didn’t reach him, nor did it arrive when we re-sent it this morning. (The county’s spam filters may have something against “abortion” on the subject line?)

Warren said he’ll wait to see if he’s asked the question directly when the Wake Commissioners meet on Monday before saying if it’s his “legal opinion” that they ought to drop the abortion coverage.

He added, “I reviewed and approved the agenda item, which may tell you what you need to know.”

The item, which Commission Chairman Tony Gurley put on the agenda, would drop the coverage.

(The News & Observer is reporting that Wake County Manager David Cooke changed the policy Wednesday and that elective abortions are no longer covered. The county’s self-insurance plan, The N&O reported, will pay for abortions in cases of incest, rape or danger to the life of the mother. Update: Cooke confirmed to the Indy what the N&O reported. He acknowledged that there are “differing legal opinions out there” but took action to remove the coverage based on the county attorney’s advice.)

Warren said the N.C. Supreme Court’s holding in the case of Stam v. State (1981) is problematic for Wake County, because Wake was the original defendant in the case and the court’s holding is directed at Wake.

The original case was “in the context of” a welfare program for pregnant, indigent women, Warren said. But the holding “is not limited to that context,” and it says the defendantWake County”exceeded its statutorily conferred power in levying the tax involved [i.e., property taxes] in the funding of medically unnecessary abortions.”

The legislature could clarify that counties have the authority to include coverage for elective abortions in health insurance benefits, Warren added. It hasn’t done so. Changing the health insurance program doesn’t strip employees of their right to choose abortions, Warren said. It would mean, rather, that Wake County’s insurance plan won’t help pay for them the same as the federal government’s insurance plans don’tand haven’t since 1976.