Doe v. Busbee

• Decision Date: 05 June 1979
• Docket Number: Civ. A. No. C79-786A.
• Citation: 471 F. Supp. 1326
• Parties: Jane DOE, Individually and on behalf of others similarly situated, Jacob B. Adams, M.D., Lawrence D. Baker, M.D., Charles Butler, M.D., Joel S. Engel, M.D., James M. Freemont, M.D., Steven Gordon, M.D., Otis T. Hammonds, M.D., Henry S. Kahn, M.D., William Mason, M.D., Harold W. Pitts, M.D., Edwin Portman, M.D., Joseph Randall, M.D., and Gerald Rehert, M.D., Individually and on behalf of others similarly situated, Atlanta Center for Reproductive Health, Inc., Atlanta Women's Medical Center, Inc., and Feminist Women's Health Center, Inc., Plaintiffs, v. George D. BUSBEE, Governor of the State of Georgia, Richard Millsap, Director of Fiscal Division of the Georgia Department of Administrative Services, David B. Poythress, Commissioner of the Georgia Department of Medical Assistance, Board of Medical Assistance for the State of Georgia, and James E. Barnett, D. Jack Davis, Vivian P. Hartman, and Ronald Tigner, Individually and in their capacities as members of the Board of Medical Assistance for the State of Georgia, and Arthur K. Bolton, Attorney General of the State of Georgia, Defendants.
• Court: U.S. District Court — Northern District of Georgia

471 F. Supp. 1326

Jane DOE, Individually and on behalf of others similarly situated, Jacob B. Adams, M.D., Lawrence D. Baker, M.D., Charles Butler, M.D., Joel S. Engel, M.D., James M. Freemont, M.D., Steven Gordon, M.D., Otis T. Hammonds, M.D., Henry S. Kahn, M.D., William Mason, M.D., Harold W. Pitts, M.D., Edwin Portman, M.D., Joseph Randall, M.D., and Gerald Rehert, M.D., Individually and on behalf of others similarly situated, Atlanta Center for Reproductive Health, Inc., Atlanta Women's Medical Center, Inc., and Feminist Women's Health Center, Inc., Plaintiffs, v. George D. BUSBEE, Governor of the State of Georgia, Richard Millsap, Director of Fiscal Division of the Georgia Department of Administrative Services, David B. Poythress, Commissioner of the Georgia Department of Medical Assistance, Board of Medical Assistance for the State of Georgia, and James E. Barnett, D. Jack Davis, Vivian P. Hartman, and Ronald Tigner, Individually and in their capacities as members of the Board of Medical Assistance for the State of Georgia, and Arthur K. Bolton, Attorney General of the State of Georgia, Defendants.

Civ. A. No. C79-786A.

United States District Court, N. D. Georgia, Atlanta Division.

June 5, 1979.

Margie Pitts Hames, Elizabeth J. Appley, Karen O'Connor, Hames, Oakley & Appley, Atlanta, Ga., for plaintiffs.

Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty., Don A. Langham, First Asst. Atty. Gen., Michael J. Bowers, Senior Asst. Atty. Gen., Jefferson James Davis, Staff Atty. Gen., Law Department for the State of Georgia, Atlanta, Ga., for defendants.

ORDER

HAROLD L. MURPHY, District Judge.

This is a civil action to obtain declaratory and injunctive relief brought pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, the Social Security Act, 42 U.S.C. § 1396 et seq., and the First, Fifth, Ninth and Fourteenth Amendments to the United States Constitution. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1343. This matter is presently before the Court on plaintiffs' motion for preliminary injunctive relief from the enforcement of the rules promulgated by the Georgia Department of Medical Assistance restricting reimbursement to Medicaid enrollees for medically necessary abortions.

I

The complaint alleges that plaintiffs Jane Doe¹ and Mary Roe² are eligible for medical assistance under Georgia's Medicaid program. Doe and Roe, having been informed that they are pregnant and advised that given their conditions, an abortion is medically necessary, have each expressed a desire to obtain an abortion. However, neither is financially capable of obtaining an abortion without Medicaid reimbursement and neither qualifies for such reimbursement under the present rules promulgated by the Department of Medical Assistance regarding reimbursement for abortions. Plaintiffs Doe and Roe seek to bring this action as representatives of a class consisting of all present and future Medicaid enrollees who are now, or who may become, pregnant and who have decided, or who may decide, with their physicians, to have an abortion and for whom an abortion is "medically necessary", but for whom an abortion is not necessary to prevent death or severe and longlasting consequences for their physical health, or where pregnancy did not result from rape or incest.

Plaintiffs Jacob B. Adams, M.D., Lawrence D. Baker, M.D., Charles Butler, M.D., Joel S. Engel, M.D.,³ James M. Freemont, M.D., Steven Gordon, M.D., Otis T. Hammonds, M.D., Henry S. Kahn, M.D., William Mason, M.D., Harold W. Pitts, M.D., Edwin Portman, M.D., Joseph Randall, M.D., and Gerald Rehert, M.D. are all physicians who receive reimbursement from the Georgia Medical Assistance Program for medically necessary obstetrical, gynecological, psychiatric and anesthetic services which they individually provide to their Medicaid patients. These plaintiff physicians are seeking to bring this action on their own behalf, on behalf of their patients, and on behalf of all physicians and Medicaid providers who are certified by Georgia's Department of Medical Assistance to obtain reimbursement for the provision of medically necessary services to persons eligible for benefits under the Georgia Medical Assistance Program, and who will perform medically necessary abortions for the plaintiff class of women in accordance with the exercise of their best medical judgment.⁴

Plaintiff Atlanta Center for Reproductive Health, Inc. ("ACRH"), Atlanta Women's Medical Center, Inc. ("AWMC"), and Feminist Women's Health Center, Inc. ("FWHC") are corporations which operate clinics which provide gynecological services, education and counseling, including first trimester abortions for women who are eligible for Medicaid.

Defendant George D. Busbee is the Governor of the State of Georgia. Defendant Richard Millsap is the Director of the Fiscal Division of the Department of Administrative Services for the State of Georgia. Defendant David B. Poythress is the Commissioner of the Georgia Department of Medical Assistance. Defendants D. Jack Davis, James E. Barnett, Vivian P. Hartman and Ronald Tigner are all members of the defendant Board of Medical Assistance, which is empowered to establish the general policy to be followed by the Georgia Department of Medical Assistance and approves all rules adopted by the Department. Defendant Arthur K. Bolton is the Attorney General of the State of Georgia.

At this stage of the action, the plaintiffs seek a preliminary injunction, pursuant to Fed.R.Civ.P. 65, enjoining the defendants, their agents, employees and attorneys from refusing to provide Medicaid reimbursement for the provision of all medically necessary abortions. The crux of plaintiffs' argument in support of this injunctive relief is that the rules issued by the Department of Medical Assistance which provide for Medicaid reimbursement for some, but not all medically necessary abortions, violate Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., as well as the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution.⁵ Plaintiffs thereby assert a denial of their rights through which it is argued they will suffer irreparable injury unless injunctive relief is granted.

There are four prerequisites which the Court must find are satisfied before granting a preliminary injunction: (1) a substantial likelihood that the plaintiffs will prevail on the merits, (2) a substantial threat that plaintiffs will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury outweighs the threatened harm the injunction may do to the defendants, and (4) that granting the preliminary injunction will not disserve the public interest. Morgan v. Fletcher, 518 F.2d 236, 239 (5th Cir. 1975); Canal Authority of State of Florida v. Calloway, 489 F.2d 567, 572 (5th Cir. 1974).

II

In Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977), the Supreme Court in holding that a state's refusal to extend Medicaid coverage to nontherapeutic abortions is not inconsistent with Title XIX, stated that "serious statutory questions might be presented if a state medicaid plan excluded necessary medical treatment from its coverage." In evaluating the likelihood that the plaintiffs will prevail on the merits, this Court is squarely faced with this "serious statutory question." Specifically, the issue presented on the merits is whether a state medicaid plan, to the extent that it restricts reimbursement for medically necessary abortions, is inconsistent with Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq.

Pursuant to the current rules promulgated by the Department of Medical Assistance of the State of Georgia,⁶ Medicaid reimbursement for abortions is available only if one of the following conditions is met:

(1) The life of the mother would be endangered if the fetus were carried to term.

(2) Severe and longlasting physical health damage to the mother would result if the pregnancy were carried to term.

(3) The mother was a victim of rape or incest, and the incident was reported promptly.

In addition:

Written certification, verifying the above conditions will be required before payment can be made. In the case of the mother's life being endangered, written certification of one physician is required. In the case of resulting severe and longlasting health damage, written certification of two physicians is required.

In the case of rape or incest, signed documentation from a law enforcement agency or public health service stating that the rape or incest was reported within sixty (60) days of the incident is required.

Billing Procedures and Reimbursement Policies for Physicians Services — Appendix D

(revised 12/1/78) (hereinafter cited as Physician's Manual—Appendix D).

As a participating state, Georgia's Medicaid Plan must meet certain minimum requirements as set out in Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. See Beal v. Doe, 432 U.S. 438, 441, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977); White v. Beal, 555 F.2d 1146, 1149 (3d Cir. 1977); Rush v. Parham, 440 F.Supp. 383, 385 (N.D.Ga. 1977). Having determined to extend eligibility for Medicaid benefits to persons defined as "categorically needy,"⁷ Georgia must provide to eligible persons, as a minimum, the following categories of services:

(1) inpatient hospital services;

(2) outpatient hospital services;

(3) laboratory and x-ray services;

(4) (A) skilled nursing facility services;

(B) early and periodic screening and diagnosis for persons under 21 years of age;

(C) family planning services and supplies;

(5) physicians services (whether furnished in the office, patient's home, a hospital, skilled nursing facility or elsewhere).

42 U.S.C. §§ 1396a(a)(13)(B) and 1396d(a) (1)-(5).

The regulations promulgated by the Department of Health, Education, and Welfare pursuant to Title XIX, which regulations have the force of law,⁸ provide the following...