Zbaraz v. Quern

• Decision Date: 15 March 1978
• Docket Number: No. 77-2290,77-2290
• Citation: 572 F.2d 582
• Parties: David ZBARAZ, M.D., Martin Motew, M.D., on their own behalf and on behalf of all others similarly situated; Chicago Welfare Rights Organization, an Illinois not-for-profit Corporation, Plaintiffs-Appellants, v. Arthur F. QUERN, Director of the Illinois Department of Public Aid, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 582

572 F.2d 582

David ZBARAZ, M.D., Martin Motew, M.D., on their own behalf and on behalf of all others similarly situated; Chicago Welfare Rights Organization, an Illinois not-for-profit Corporation, Plaintiffs-Appellants, v. Arthur F. QUERN, Director of the Illinois Department of Public Aid, Defendant-Appellee.

No. 77-2290.

United States Court of Appeals Seventh Circuit.

Argued Feb. 16, 1978.

Decided March 15, 1978.

Robert Bennett, Chicago, Ill., Aviva Futorian, Robert E. Lehrer, Wendy Meltzer, James D. Weill, Legal Assistance Foundation of Chicago, Chicago, Ill., David Goldberger, Lois J. Lipton, Roger Baldwin Foundation of ACLU, Chicago, Ill., for plaintiffs-appellants.

John D. Gorby, Americans United for Life Legal Defense Fund, Chicago, Ill., amicus curiae.

William J. Scott, Atty. Gen., Chicago, Ill., William A. Wenzel, Sp. Asst. Atty. Gen., Chicago, Ill., for defendant-appellee.

Before SPRECHER, BAUER and WOOD, Circuit Judges.

PER CURIAM.

Appellants brought an action in the District Court for the Northern District of Illinois to enjoin enforcement of Illinois statute P.A. 80-1091, which prohibits public assistance funding of all abortions except those medically necessary for the preservation of the life of the pregnant woman. The complaint asserts that P.A. 80-1091 violates Title XIX of the Social Security Act, 42 U.S.C. §§ 1396, et seq., and the equal protection clause of the Fourteenth Amendment to the degree that it denies funding for abortions which are medically necessary for the preservation of the health of the woman seeking treatment, even though her life might not be in danger. The district judge entered an order staying the proceeding based on the abstention doctrine of Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). We reverse and remand to the district court for consideration of appellants' motion for a temporary restraining order and/or preliminary injunction and further proceedings.

I. Background

On November 17, 1977 the Illinois state legislature enacted P.A. 80-1091 which prohibits

the granting of public assistance where the purpose of such aid is to obtain an abortion, induced miscarriage or induced premature birth unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment, or except an induced premature birth intended to produce a live viable child and such procedure is necessary for the health of the mother or her unborn child.

On December 6, 1977 appellants two doctors whose medical practices include the provision of abortions to indigent women filed a complaint in the district court pursuant to 42 U.S.C. § 1983 claiming that the statute deprives them and their patients of their rights under Title XIX of the Social Security Act, 42 U.S.C. §§ 1396, et seq., and the Ninth and Fourteenth Amendments to the United States Constitution. The complaint seeks declaratory and injunctive relief. The statutory claim is based on the argument that although a state has a limited discretion to decide the type and extent of medical assistance to be provided under its Medicaid program, it may not exclude from coverage services which are medically necessary for the patient's health. Appellants thus contend that Title XIX requires the funding of medically necessary abortions even if the woman's life is not in danger. The constitutional claim is predicated on the proposition that Illinois' decision to withdraw funding for abortions necessary for the preservation of the health of the pregnant woman, other than those where her life is in danger, while continuing to fund other types of medical procedures required for "health" rather than "life" reasons, constitutes a violation of the equal protection clause of the Fourteenth Amendment in that the difference in treatment is not based on a sufficient state interest. ¹

Appellants also filed a motion for a temporary restraining order and/or preliminary injunction, in opposition to which appellee Quern the Director of the Illinois Department of Public Aid filed a memorandum. Before appellee's answer to the complaint was to have been filed, the district court issued an order continuing appellants' motion pending the institution and completion of appropriate proceedings in the Illinois state courts. In abstaining, the court reasoned that the Illinois statute, if broadly construed, could authorize reimbursement for some or all of the "medically necessary" procedures which plaintiffs contend should be reimbursed and that even a narrow interpretation would serve to "define precisely the constitutional question presented. Bellotti v. Baird, 428 U.S. 132 (, 96 S.Ct. 2857, 49 L.Ed.2d 844) (1976)." Appellants

argue that the district court's decision to abstain was in error. This court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. Drexler v. Southwest DuBois School Corp., 504 F.2d 836, 838 (7th Cir. 1974) (en banc); Vickers v. Trainor, 546 F.2d 739, 741 (7th Cir. 1976).

II. Abstention

The Pullman -type abstention doctrine invoked by the district court is one of the three exceptions to "the virtual unflagging obligation of the federal courts to exercise the jurisdiction given them" recognized by the Supreme Court in Colorado River Water Conservation District v. United States,424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). Pullman -type abstention is appropriate "where an unconstrued state statute is susceptible of a construction by the state judiciary which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem." Bellotti v. Baird, 428 U.S. at 147, 96 S.Ct. at 2866 (internal quotation marks omitted). Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959). See also Colorado River Water Conservation District v. United States, 424 U.S. at 813-14, 96 S.Ct. 1236; Carey v. Sugar, 425 U.S. 73, 78-79, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976); Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 510, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1971); Zwickler v. Koota, 389 U.S. 241, 249, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The essence of the doctrine is that the federal courts should avoid entering into "a sensitive area of social policy . . . unless no alternative to its adjudication is open." Railroad Comm'n of Texas v. Pullman Co., 312 U.S. at 498, 61 S.Ct. at 644. "Needless friction with state policies" may thus be avoided. Id. at 500, 61 S.Ct. 643. However, the doctrine is limited by considerations of " '(t)he delay and expense to which application of the abstention doctrine inevitably gives rise.' " Lake Carriers' Assn. v. MacMullan, 406 U.S. at 509, 92 S.Ct. at 1757, quoting England v. Medical Examiners, 375 U.S. 411, 418, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); Bellotti v. Baird, 428 U.S. at 150, 96 S.Ct. 2857. The court should thus consider whether there exist "state court proceedings providing an easy and ample means of clarifying Illinois law." Vickers v. Trainor, 546 F.2d at 744.

Although it cannot be disputed that the case at bar would require the court to enter into "a sensitive area of social policy," it is unlikely that a state court construction of P.A. 80-1091 will either moot or materially alter the statutory or constitutional questions raised by appellants. It is also questionable whether there exists an "easy and ample" means of obtaining a state court construction of the statute which would minimize the burden that abstention would place on appellants and the indigent women whose rights they are asserting.

Appellant doctors are asserting the rights of indigent women who might require an abortion for the preservation of their health, even if their lives are not in danger. The size of the class of women involved depends on how the terms "medically necessary for the preservation of the woman's health" and "necessary for the preservation of the woman's life" are interpreted. The Illinois statute's "preservation of life" standard is ambiguous, in the sense that it is uncertain exactly what set of medical diagnoses or prognoses is within its intended ambit. There is a similar ambiguity in the "medically necessary for the preservation of health" standard. However, it is clear that the constitutional and statutory claims raised by appellants will not be obviated in their entirety by a state court interpretation of the "preservation of life" standard unless it is found to be at least coextensive with the "preservation of health" standard. The likelihood of such a construction does not appear sufficiently great to justify abstention.

On the "plain meaning" semantic level there is clearly a distinction between a medical condition which threatens to impair a woman's health and one which threatens Appellee Quern's argument that the ambiguity of the "preservation of life" standard of P.A. 80-1091 is broad enough to encompass the "preservation of health" standard rests primarily on his view of the legislative history of the statute. It is true that there are statements in the legislative debates to the purport that the statute only prohibits funding of "voluntary," "nontherapeutic," "medically unnecessary" abortions. ⁵ However, on our reading of the However, the possibility of a complete mooting of the constitutional question is not a necessary prerequisite to an application of the Pullman doctrine. Abstention may also be properly invoked if resolution of the unclear question of state law might cause the constitutional problem to be "presented in a different posture," County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959), making it possible "to define precisely the constitutional question presented," Bellotti v. Baird, 428 U.S. at 148, 96 S.Ct. at 2866, or to "materially change...