Doe v. Director of Dept. of Social Services

• Decision Date: 19 February 1991
• Docket Number: Docket No. 116069
• Citation: 468 N.W.2d 862,187 Mich.App. 493
• Parties: Jane DOE and Nancy Doe, Plaintiffs-Appellants, v. DIRECTOR OF the DEPARTMENT OF SOCIAL SERVICES and Director of Medical Services Administration of the Michigan Department of Social Services, Defendants-Appellees, and Right to Life of Michigan, Inc., Right to Life of Michigan, Inc. Legal Defense Fund, Committee to End Tax Funded Abortions, Mary Zick, Jennifer Donovan, Kent Donovan, Rick Halliburton, Colleen Holbrook, and Joe Klee, Intervening Defendants-Appellees. 187 Mich.App. 493, 468 N.W.2d 862
• Court: Court of Appeal of Michigan — District of US

Page 862

468 N.W.2d 862

Jane DOE and Nancy Doe, Plaintiffs-Appellants, v. DIRECTOR OF the DEPARTMENT OF SOCIAL SERVICES and Director of Medical Services Administration of the Michigan Department of Social Services Defendants-Appellees and Right to Life of Michigan, Inc., Right to Life of Michigan Inc. Legal Defense Fund, Committee to End Tax Funded Abortions, Mary Zick, Jennifer Donovan, Kent Donovan, Rick Halliburton, Colleen Holbrook, and Joe Klee, Intervening Defendants-Appellees.

Docket No. 116069.

187 Mich.App. 493, 468 N.W.2d 862

Court of Appeals of Michigan.

Submitted Feb. 6, 1990, at Detroit.

Decided Feb. 19, 1991, at 9:50 a.m.

Released for Publication May 6, 1991.

[187 MICHAPP 495] Elizabeth Gleicher, William H. Goodman, and Paul J. Denenfeld, Detroit, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John M. Konwinski and George M. Elworth, Asst. Attys. Gen., for the Dept. of Social Services.

Dykema Gossett by John B. Curcio, Richard D. McLellan, and Cindy M. Wilder, Lansing, for intervening defendants-appellees.

[187 MICHAPP 496] William J. Coughlin, Troy, Clarke D. Forsythe, and Kevin J. Todd, Chicago, Ill., amicus curiae, for certain Michigan Senators and Representatives.

James K. Robinson, Detroit, and Marietta S. Robinson, Dearborn, amicus curiae, for Michigan Welfare Rights Organization, et al.

Before SULLIVAN, P.J., and DOCTOROFF and FITZGERALD, ^* JJ.

J.W. FITZGERALD, Judge.

Plaintiffs appeal as of right from the circuit court's order granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(10), dismissing plaintiffs' complaint for injunctive and declaratory relief, and denying plaintiffs' motion for a preliminary injunction. On appeal, plaintiffs contend the trial judge erred in ruling that 1987 P.A. 59, M.C.L. Sec. 400.109a; M.S.A. Sec. 16.490(19a), did not violate their right to privacy and their rights under the Due Process, Equal Protection and Antidiscrimination Clauses of the Michigan Constitution, Const.1963, art. 1, Secs. 2, 17. We agree in relevant part and reverse.

I. Introduction

According to plaintiffs' complaint, Jane Doe ¹ was raped on or about January 15, 1989. At the time, she was a fifteen-year-old resident of this state. Her mother, Nancy Doe, also a Michigan resident, was unemployed, indigent, and a recipient of Aid to Families with Dependent Children. Both plaintiffs were eligible for state medical assistance payments through the State of Michigan's Medicaid [187 MICHAPP 497] program, 1966 P.A. 321, M.C.L. Sec. 400.105 et seq.; M.S.A. Sec. 16.490(15) et seq.

As a result of the rape, Jane Doe became pregnant. On or about February 10, 1989, when Jane Doe was in the first trimester of her pregnancy, Nancy Doe sought medical assistance coverage for a therapeutic abortion for her daughter for the following reasons, as stated in the complaint:

5. Due to her age and her underlying medical condition,[ ²] the continuation of her pregnancy to term will entail substantial health risks for Plaintiff Jane Doe. Additionally, due to the cruel circumstances surrounding conception, as well as her age, Plaintiff is emotionally and psychologically unprepared to undergo a term pregnancy and delivery.

6. Although not necessary to save her life, a first trimester abortion is medically necessary to protect the physical and psychological health of Plaintiff Jane Doe.

Nancy Doe was advised that the Department of Social Services would not pay for the abortion pursuant to M.C.L. Sec. 400.109a; M.S.A. Sec. 16.490(19a), which provides:

Notwithstanding any other provision of this act, an abortion shall not be a service provided with public funds to a recipient of welfare benefits, whether through a program of medical assistance, general assistance, or categorical assistance or through any other type of public aid or assistance program, unless the abortion is necessary to save the life of the mother. It is the policy of this state to prohibit the appropriation of public funds for the purpose of providing an abortion to a person [187 MICHAPP 498] who receives welfare benefits unless the abortion is necessary to save the life of the mother.

As a result of the DSS' refusal, on February 23, 1989, Jane and Nancy Doe filed a complaint against defendants, Patrick Babcock, Director of the DSS, and Kevin Seitz, Director of Medical Services Administration of the DSS, seeking entry both of preliminary and permanent injunctions enjoining the enforcement of Sec. 109a and of a declaratory judgment that Sec. 109a violates the Equal Protection and Due Process Clauses of Const.1963, art. 1, Secs. 2, 17 respectively, as well as the right to privacy guaranteed under Const.1963, art. 1, Sec. 23. Several organizations and individuals were allowed to intervene as parties defendant. On March 10, 1989, defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10) on the grounds that plaintiffs had failed to state a claim on which relief could be granted and that there was no genuine issue of material fact regarding the constitutionality of Sec. 109a. On March 17, 1989, the trial court granted defendants' motion pursuant to MCR 2.116(C)(10), finding that Sec. 109a prohibited state Medicaid funding of Jane Doe's requested abortion and that Sec. 109a was not violative of the Michigan Constitution. The court denied plaintiffs' motion for a preliminary injunction and dismissed their lawsuit.

II. Michigan's Participation in the Medicaid Program

Title XIX of the federal Social Security Act, as amended, 42 U.S.C. Sec. 1396 et seq., established the Medicaid program, jointly funded by the federal and participating state governments, to enable a state to furnish medical assistance to certain categories[187 MICHAPP 499] of needy persons, if the state chooses to do so. With the enactment of 1966 P.A. 321, Michigan became a participant in title XIX's medical assistance program. As a participant in the program, the state may pay only for services which the DSS considers medically necessary under 42 CFR 440.230. Reed v. Hurley Medical Center, 153 Mich.App. 71, 76, 395 N.W.2d 12 (1986). Moreover, the director of the DSS must ensure that reimbursement is made only for "medically appropriate services," and that the state pays only for services that are "needed or appropriate." M.C.L. Sec. 400.111a(3)(b), (4)(b); M.S.A Sec. 16.490(21a)(3)(b), (4)(b). See Reed, supra. Even certain types of cosmetic procedures are funded, provided that the attending physician certifies the reasonable medical necessity for the particular procedure. On the other hand, the availability of federal funds for particular medical care does not require the state to pay for it. See Anderson v. Director, Dep't of Social Services (After Remand), 101 Mich.App. 488, 300 N.W.2d 921 (1980). Thus, fiscal restraints may play a legitimate role in the state's decision making with respect to Medicaid coverage. Id. at 495, 300 N.W.2d 921.

III. Michigan Abortion Law Before and After Roe v. Wade

When Michigan became a medical assistance program participant, three years after the Constitution of 1963 was adopted, neither the federal Social Security Act nor 1966 P.A. 321 contained an express provision concerning assistance for abortions, whether elective or therapeutic, under the program. Stopczynski v. Governor, 92 Mich.App. 191, 194, 285 N.W.2d 62 (1979). At that time, the performing or procuring of all elective and some therapeutic abortions was a felony in this state. [187 MICHAPP 500] M.C.L. Secs. 750.14, 750.15, 750.322, 750.323; M.S.A. Secs. 28.204, 28.205, 28.554, 28.555; M.C.L. Sec. 338.53; M.S.A. Sec. 14.533; Stopczynski, supra.

In 1972, a panel of this Court considered the constitutionality of one of Michigan's abortion statutes, M.C.L. Sec. 750.14; M.S.A. Sec. 28.204, in two cases, one involving a licensed physician, People v. Nixon, 42 Mich.App. 332, 201 N.W.2d 635 (1972), remanded 389 Mich. 809, 387 N.W.2d 921 (1973), rev'd on remand 50 Mich.App. 38, 212 N.W.2d 797 (1973), and the other involving an unlicensed abortion practitioner, People v. Bricker, 42 Mich.App. 352, 201 N.W.2d 647 (1972), aff'd 389 Mich. 524, 208 N.W.2d 172 (1973). After discussing the nature and history of the statute, the Court in Nixon, supra 42 Mich.App. at 335-337, 201 N.W.2d 635, concluded that the statute was not intended to protect the rights of the unquickened ³ fetus, but rather was intended to protect the pregnant woman, having been enacted at a time before the advent of antiseptic surgery. Acknowledging the great advancement of medical science, the Court noted that not only were therapeutic abortions reasonably safe, but also it was safer for a woman to have a first-trimester therapeutic abortion than to bear the child. Id. at 339, 201 N.W.2d 635. Concluding that the intended purpose of M.C.L. Sec. 750.14; M.S.A. Sec. 28.204 no longer existed as it applied to licensed physicians in a proper medical setting, the Court explained:

There is no longer a sufficient state interest to justify continued prosecution of licensed physicians for the mere act of artificially inducing a miscarriage of an unquickened fetus. What state interest there is in the continued protection of the woman [187 MICHAPP 501] is counterbalanced and offset by the superior right of the woman and her physician to undertake such medical treatment as is deemed appropriate. The question of whether any given woman should be given a therapeutic abortion during the first trimester is a question which is properly addressed to the discretion of the physician in the exercise of his professional duties.

Not only has the present Michigan abortion statute become unproductive of the end for which it was originally intended, i.e., the health and safety of the woman, but it would appear that it has become counterproductive. Since In re Vickers, 371 Mich 114 (1963), recognized that the woman could not be prosecuted under the present statute...