Coe v. Hooker

• Decision Date: 08 January 1976
• Docket Number: 75-244 and 75-253.,Civ. A. No. 75-206
• Citation: 406 F. Supp. 1072
• Parties: Carol COE et al. v. Thomas HOOKER et al. Rebecca ROE et al. v. Thomas HOOKER et al. Wanda WOE et al. v. Thomas HOOKER et al.
• Court: U.S. District Court — District of New Hampshire

406 F. Supp. 1072

Carol COE et al. v. Thomas HOOKER et al.

Rebecca ROE et al. v. Thomas HOOKER et al.

Wanda WOE et al. v. Thomas HOOKER et al.

Civ. A. Nos. 75-206, 75-244 and 75-253.

United States District Court, D. New Hampshire.

January 8, 1976.

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Mary Susan Galway, Orr & Reno, Concord, N. H., Barbara Sard, N. H. Legal Assistance, Manchester, N. H., for plaintiffs.

Richard V. Wiebusch, G. Wells Anderson, Hall, Morse, Gallagher & Anderson, Concord, N. H., for defendants.

MEMORANDUM OPINION

BOWNES, District Judge.

This is an action for a declaratory judgment and injunctive relief alleging infringement of plaintiffs' civil rights guaranteed by both the statutes and the Constitution of the United States. It is brought under 42 U.S.C. § 1983 and 28 U.S.C. § 2201 with jurisdiction conferred by 28 U.S.C. § 1343.

Plaintiffs challenge the New Hampshire Medicaid regulation which excludes as a reimbursable medical service all "medically unnecessary" abortions.

Effective July 18, 1975, the New Hampshire Division of Welfare will make payment for surgical, obstetrical and medical services (in or out of hospital) excluding payment for surgical, obstetrical and medical service procedures to terminate pregnancy except (1) when performed in conformity with New Hampshire law then in effect, and (2) when medically necessary to preserve the life or health of the mother or fetus.

Plaintiffs claim that this regulation violates Title XIX of the federal Social Security law, 42 U.S.C. § 1396 et seq., and that it abridges their constitutional rights to privacy and the equal protection and benefit of the laws. U.S.Const. amend. IX and XIV. Defendants argue that New Hampshire is allowed great latitude in determining the extent of medical coverage it will provide, and that it may refuse, under Title XIX and the Constitution, to finance "medically unnecessary" abortions for plaintiffs.¹

Plaintiffs' original complaint was filed on July 15, 1975, and alleged only infringement of plaintiffs' constitutional rights. Accordingly, a Three-Judge Court was convened pursuant to 28 U.S.C. § 2281. At argument on September 22, 1975, the issue was raised as to whether defendants' regulation violates controlling federal law, Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. See, Doe v. Beal, 523 F.2d 611 (3rd Cir., 1975), petition for cert. filed, 44 U.S.L.W. 3287 (U.S. 11/11/75) (N. 75-554).

The statutory issue is solely within the jurisdiction of this court under 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Because plaintiffs' constitutional claim is plainly not insubstantial, this court also has pendent jurisdiction over plaintiffs' statutory claim. Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); Rosado v. Wyman, 397 U.S. 397, 402-403, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). See, Roe v. Norton, 522 F.2d 928 (2d Cir., 1975); Doe v. Rose, 499 F.2d 1112 (10th Cir., 1974). Because the statutory claim must be decided before the constitutional question can be reached, the Three-Judge Court on December 10, 1970, remanded the case back to this single district judge for consideration of the statutory question. Westby v. Doe, 420 U.S. 968, 95 S.Ct. 1385, 43 L.Ed.2d 648 (1975); Hagans v. Lavine, supra, 415 U.S. at 536, 94 S.Ct. 1372; Dandridge v. Williams, 397 U.S. 471, 475-476, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Rosado v. Wyman, supra, 397 U.S. at 402, 90 S.Ct. 1207. The Three-Judge Court has retained jurisdiction over the constitutional claims. Both parties have moved for summary judgment.

The parties agree that the Medicaid program leaves to the states' discretion the content of the services composing medical assistance. Plaintiffs contend that defendants' exclusion of elective abortions as an eligible medical expense violates Title XIX's reasonableness and equality standards. I find plaintiffs' statutory claim dispositive and do not reach the constitutional issues.

FACTS

The following facts are taken from either the stipulations or the affidavits submitted by the parties.² New Hampshire participates in the Medical Assistance Program under Title XIX of the Social Security Act of 1935, 42 U.S.C. § 1396 et seq.; NH RSA 161:2 VIII (1964); NH RSA 167:6 VII (Supp.1975). New Hampshire administers medical assistance to both the "categorically needy" and the "medically needy" through the Division of Welfare of the Department of Health and Welfare. NH RSA 167:6 VII; 45 C.F.R. 248.10(a)(1), (2).

Defendant Whaland is the New Hampshire Commissioner of Health and Welfare and is responsible for the overall administration of the New Hampshire Department of Health and Welfare. Defendant Hooker is the former director of the New Hampshire Division of Welfare, a part of the Department of Health and Welfare. He was responsible for the overall administration of the Medicaid program in New Hampshire. Defendant Kaschub, Director of Medical Services, Division of Welfare, is immediately accountable for the administration of the New Hampshire Medicaid program.

Plaintiffs Woe, Poe, Roe, Smith and Boe are or were residents of the State of New Hampshire at the time their complaints were filed. They have all assumed fictitious names for the purposes of this suit because they wish to assure their anonymity during the course of this litigation. They are indigent recipients of Aid to Families with Dependent Children (AFDC) and are eligible for medical assistance within the New Hampshire Medicaid program.

Prior to commencing or entering this litigation, but after July 18, 1975, plaintiffs Woe, Poe, Roe, Smith and Boe were each diagnosed as pregnant by a qualified physician. All were within the first trimester of pregnancy. Each plaintiff decided in consultation with her physician to terminate her pregnancy. In each case, the physician advised plaintiff that her abortion was not "medically necessary" in that it was not "necessary to preserve the life or health of the mother or fetus." None of the plaintiffs had sufficient means to pay for an abortion, but each was eligible for Medicaid assistance at the time.

Plaintiffs gave a variety of reasons for desiring to terminate their pregnancies. Each plaintiff had at least one child; several had more. All stated that they were not sufficiently stable, either economically or emotionally, to adequately rear an additional child. Affidavits Woe, Poe, Roe, Smith and Boe.

Plaintiff Dr. Kenneth McKinney is a physician licensed to practice medicine in New Hampshire. As a part of his medical practice, Dr. McKinney performs first and second trimester abortions for his patients. By affidavit he has expressed his willingness to perform such abortions for Medicaid patients if he could receive Medicaid reimbursement for these medical services.

In 1973, the New Hampshire Attorney General announced that the United States Supreme Court decisions, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), voided all New Hampshire criminal statutes concerning abortion. Therefore, abortion is a legal medical service under state law in New Hampshire. Until July 18, 1975, New Hampshire's Medicaid Manual included abortion as a reimbursable medical service as both a family planning service and a physician's service. Defendant Hooker, pursuant to NH RSA 161:4 I (Supp.1975),³ with the approval of defendant Whaland promulgated the contested regulation, effective July 18, 1975. New Hampshire's regulations have at all times relevant to this suit "provided for Medicaid benefits for full-term deliveries and other pregnancy related medical care." Stipulations of Fact ¶ 7 at 2.

Plaintiffs Woe, Poe, Roe, Smith and Boe were all informed by their physicians that, because they did not medically require an abortion, the abortion would be a nonreimbursable medical service; therefore, their Medicaid cards could not be used to pay for the costs of the abortion. Affidavits Poe, Woe, Roe, Smith and Boe. Plaintiffs then commenced a constitutional attack on defendants' regulation and each pregnant plaintiff obtained a temporary restraining order from this court directing defendants to provide Medicaid reimbursement for the abortion of each plaintiff.

THE FEDERAL STATUTE

The Medicaid program was established in 1965 by Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. It is designed to enable participating states through federal grants-in-aid to provide indigents with medical assistance. 42 U.S.C. § 1396. The program is jointly funded by the state and federal governments and is locally administered.

While a state has the option of participating in the Medicaid program, once it does so, it is bound to conform to federal law. Shea v. Vialpando, 416 U.S. 251, 94 S.Ct. 1746, 40 L.Ed.2d 120 (1974); Rosado v. Wyman, supra, 397 U.S. 397, 90 S.Ct. 1207; King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). Further, participating states must submit their plans for medical assistance to the Department of Health, Education and Welfare (HEW) for approval. See, 42 U.S.C. § 1396a(b).

The Medicaid program represents a "scheme of cooperative-federalism," King v. Smith, supra, 392 U.S. at 316, 88 S.Ct. 2128, in which the states have considerable freedom in designing their own plans. Nevertheless, the statute does outline basic provisions which the states must follow. First, states are required to furnish medical assistance to the "categorically needy." 42 U.S.C. § 1396a(a) (10)(A); 45 C.F.R. 248.10(b)(1). Second, states must provide to the "categorically needy" five mandatory types of medical services. 42 U.S.C. § 1396a(a)(13)(B); 45 C.F.R. 249.10(a)(1). The five services are: The five services are:

(1) inpatient hospital services . . .;

(2) outpatient hospital services;

(3) other laboratory and X-ray services;

(4)(A) skilled nursing facility services . . . (B) . . . early

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