Roe v. Norton

• Decision Date: 12 June 1974
• Docket Number: Civ. No. N-74-17.
• Citation: 380 F. Supp. 726
• Court: U.S. District Court — District of Connecticut
• Parties: Susan ROE, Individually and on behalf of all others similarly situated, et al. v. Nicholas NORTON, Individually and as Commissioner of Welfare for the State of Connecticut, et al.

380 F. Supp. 726

Susan ROE, Individually and on behalf of all others similarly situated, et al. v. Nicholas NORTON, Individually and as Commissioner of Welfare for the State of Connecticut, et al.

Civ. No. N-74-17.

United States District Court, D. Connecticut.

June 12, 1974.

Lucy Katz and Kathryn Emmett, Ann Hill and Catherine G. Roraback of New Haven, Conn. and Marilyn P. A. Seichter of Hartford, Conn., Bridgeport, Conn., for plaintiffs.

Edmund C. Walsh, Asst. Atty. Gen., Hartford, Conn., for defendants.

MEMORANDUM OF DECISION ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

NEWMAN, District Judge.

This suit raises issues of federal law concerning payment of welfare funds for the expenses of certain abortions. As a result of the decisions of the Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and of this Court in Abele v. Markle, 369 F. Supp. 807 (D.Conn.1973), the Connecticut welfare authorities have acknowledged that a pregnant woman, in consultation with her own physician, is entitled to decide to have an abortion. They further agree that those pregnant women who qualify for Medicaid assistance are entitled to have the expenses of most abortions paid for out of state welfare funds, which are substantially reimbursed by federal funds. However, they believe that the federal Medicaid provisions, Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., prohibit federal reimbursement for the expenses of an abortion unless there has been a determination that the abortion is medically necessary, by which they appear to mean that without the abortion the woman's physical or psychiatric health will suffer. Believing that federal law requires such a determination, they have adopted a regulation,¹ Connecticut Welfare Department, Public Assistance Program Manual, Vol. 3, Ch. III, § 275, designed to secure prior medical certification that an abortion is necessary. Whether this regulation is required by or permitted by federal law is the question in this case.

The suit is brought by two women eligible for Medicaid payments. Both are receiving Aid to Families with Dependent Children. Plaintiff Poe had an abortion in September, 1973, for which the welfare department has refused to pay the hospital bill of $244.20. Plaintiff Roe, who was pregnant at the time the suit was filed, obtained by consent of the parties a temporary restraining order, preventing the defendant welfare officials from refusing to pay the costs of her abortion. Neither plaintiff submitted to welfare authorities the certification, required by § 275, from the attending physician and the chief of obstetrics and gynecology of an accredited hospital that the abortion is "recommended as medically or psychiatrically necessary." In attacking § 275, plaintiff Roe seeks to represent a class consisting of all women who are eligible for medical assistance from the State of Connecticut and who are pregnant and have been refused said assistance for the performance of an abortion which they have requested and which has been authorized by a physician.

The suit challenges § 275 as contrary to the Social Security Act and in violation of the United States Constitution. Jurisdiction of the action, brought under 42 U.S.C. § 1983, is conferred by 28 U.S.C. § 1343(3). The constitutional claim is plainly substantial enough to invoke the jurisdiction of this Court and to justify consideration of the pendent statutory claim, see Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), without convening a three-judge court, 28 U.S.C. § 2281, or considering whether decisions of the Supreme Court in Roe v. Wade, supra, and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L. Ed.2d 201 (1973), have obviated the need for a three-judge court to rule on the constitutional claim. Cf. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962).

At oral argument, the defendants were specifically asked whether they had adopted the challenged regulation to implement a state policy or whether the regulation was in force only because defendants believed it was required by federal law. Their position was that the regulation was adopted only because of federal law and would not otherwise be in force.²

Defendants contend that the provisions of Title XIX limit the availability of Medicaid funds to "necessary medical services." Before the meaning of that phrase is considered in the context of abortion services, there is a threshold question as to whether the phrase applies as a limitation on services eligible for Medicaid payments. In Title XIX, the phrase appears only as a limitation on persons eligible for Medicaid payments. Thus, 42 U.S.C. § 1396 authorizes appropriations to enable states to furnish "medical assistance" to welfare recipients "whose income and resources are insufficient to meet the costs of necessary medical services." Similarly, 42 U.S.C. § 1396a(a)(10)(B)(i) permits a state to include in its plan persons not on welfare who would be eligible for welfare if needy and who lack sufficient income and resources to meet the costs of "necessary medical or remedial care and services." But the assistance to be made available to those who are eligible is always described simply as "medical assistance" without the adjective "necessary." See, e. g., 42 U.S.C. §§ 1396, 1396a(a), 1396a(a)(10). In particular, the detailed statutory definition of "medical assistance," 42 U.S.C. § 1396d, contains no reference to medical necessity and does include broadly "medical care, or any other type of remedial care recognized under State law, furnished by licensed practitioners within the scope of their practice as defined by State law." 42 U.S.C. § 1396d(a)(6).

Thus from the terms of the statute, it would be entirely plausible to conclude that a person who lacks sufficient income or resources to pay for necessary medical services is eligible to receive Medicaid payments for any medical care whatever. Under that construction, for example, the person too poor to afford an emergency appendectomy would be entitled to payment for elective cosmetic surgery.

Defendants oppose this construction, contending that a limitation of Medicaid payments to those medical services that are necessary should be read into Title XIX from the Medicare provisions of Title XVIII. That title specifically excludes payment for items or services "which are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member." 42 U.S. C. § 1395y(a)(1). While the existence of this exclusion in the Medicare provisions stands in curious contrast to the absence of any similar provision in the Medicaid provisions, there is some force to defendants' contention that the legislative history supports a common interpretation of both titles. See U.S.Cong. & Admin.News (1965) pp. 1943, 1986, 1989. Moreover it is not likely that Congress intended to provide broader benefits to the indigent than to those who were purchasing coverage under Medicare.

Even if it is assumed arguendo that Medicaid payments are limited to necessary medical services, the question remains whether an elective abortion, not performed to avoid any physical or psychiatric impairment, is "necessary" within the meaning of what at most would be an implied limitation of Title XIX. Contrary to defendants' argument, the fact that the doctors of these plaintiffs have not certified their abortions as necessary does not mean that their abortions were not within a proper construction of the Medicaid statute. The doctors were acting well within their field of expertise in concluding that in neither case did the plaintiff's physical or psychiatric health require an abortion as an alternative to childbirth. But whether that circumstance excludes these abortions from the coverage of a federal statute is a question of law, not of medicine.

There is nothing in the text or legislative history of the statute to suggest that when a patient's condition requires medical attention, each alternative form of medical service that might be rendered must be deemed to be necessary to qualify for federal reimbursement. Such a notion would be contrary to the basic philosophy of both the Medicare and Medicaid provisions, which emphasizes the wide discretion to be accorded physicians in treating their patients. It may well be that where a condition does not require any medical attention whatever, such as a...