Doe v. Maher

• Decision Date: 09 April 1986
• Docket Number: No. 196874,196874
• Court: Connecticut Superior Court
• Parties: , Medicare & Medicaid Guide P 36,381 Rosie J. DOE et al. v. Edward MAHER et al.

Page 134

515 A.2d 134

40 Conn.Supp. 394, Medicare & Medicaid Guide P 36,381

Rosie J. DOE et al. v. Edward MAHER et al.

No. 196874.

Superior Court of Connecticut Judicial District of New Haven.

April 9, 1986.

Martha Stone, Catherine Hartford, Roraback Canaan, and Shelley Geballe, Stony Creek, for plaintiffs

Michael Arcari, Paige Everin and Richard Couture, Asst. Attys. Gen., Hartford, for defendants.

BERDON, Judge.

The plaintiffs, Rosie J. Doe and her physician, Marshall Holley, ¹ have brought this class action against the defendant commissioner of income maintenance (commissioner) ² challenging the legality and constitutionality of Policy 275 of 3 Manual, Department of Income Maintenance Medical Assistance Program, c. III. (Revised January 22, 1981) (regulation). ³ The regulation restricts the funding of abortions under the Connecticut Medical Assistance Program (hereinafter medicaid); General Statutes § 17-134a et seq.; to those abortions "necessary because the life of the mother would be endangered if the fetus were carried to term."

The court concludes that the regulation exceeds the statutory authority of the commissioner and is violative of the due process clause (article first, § 10) and equal protection clause (article first, §§ 1 and 20), and more specifically the equal rights amendment (article fifth) of the constitution of the state of Connecticut.

Before setting forth the background and facts, and evaluating the statutory and constitutional claims of the plaintiffs, the court deems it advisable to put the case in its proper perspective. It is not "a referendum on the morality of abortion"; it does not seek to delve into "the profound questions about the moral, medical, and societal implications of abortion," and it does not attempt "to determine when life begins or at what point a fetus is a person." Right to Choose v. Byrne, 91 N.J. 287, 299, 450 A.2d 925 (1982). This case is concerned only with the narrow issue of funding of medically necessary or therapeutic abortions. ⁴ The issue of whether our state constitution mandates that the state fund nontherapeutic abortions for the poor has not been raised by the parties and is not addressed in this decision. ⁵

I CHRONOLOGY OF THERAPEUTIC ABORTION FOR THE POOR IN CONNECTICUT

It is helpful to review the chronology of events pertaining to therapeutic abortions in Connecticut. Shortly after the Supreme Court of the United States in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, reh. denied, 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973), held that the constitutional right of privacy protects a woman's right to terminate her pregnancy, the commissioner revised his policies to provide The commissioner, thereafter, made further changes in the regulation mirroring those of the federal medicaid program; Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq.; which provides for partial reimbursement to the states of medical expenses for the poor. These changes in the federal program, referred to as the Hyde amendment, ⁶ restricted funding to abortions necessary to preserve the woman's life or, at varying times, to termination of pregnancies resulting from rape or incest. ⁷

                that therapeutic abortions would be funded through the state medicaid program.   Prior thereto, the regulation permitted medicaid funding for abortions "only when necessary to preserve the physical life of the mother."
                

The regulation was in effect until July 17, 1979, when the Federal District Court in the case of Women's Health Services, Inc. v. Maher, 482 F.Supp. 725 (D.Conn.1980) (Women's Health Case I ), held that it was "not rationally related to any legitimate, articulated state interest and the exclusion of therapeutic abortions from medicaid coverage, being irrational, violates the equal protection clause [of the United States constitution]." Id., 735. The court in Women's Health Case I issued an injunction ordering the state to pay the expenses for all medically necessary abortions under its medicaid program. After the United States Supreme Court decided in Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784, reh. denied, 448 U.S. 917, 101 S.Ct. 39, 65 L.Ed.2d 1180 (1980), that the Hyde amendment met federal constitutional standards, and in Williams v. Zbaraz, 448 U.S. 358, 100 S.Ct. 2694, 65 L.Ed.2d 831, reh. denied, 448 U.S. 917, 101 S.Ct. 38, 65 L.Ed.2d 1180 (1980), that the state could restrict the payment for abortions to the reimbursement limits provided in the Hyde amendment, the Second Circuit Court of Appeals reversed and remanded Women's Health Case I. Women's Health Services, Inc. v. Maher, 636 F.2d 23 (2d Cir.1980) (the remand was granted because of the claim of the plaintiffs that Women's Health Case I was factually distinguishable from McRae and Zbaraz ). On December 16, 1980, the District Court, Blumenfeld, J., denied the plaintiffs' petition to restrain the commissioner from enforcing the regulation, and on May 6, 1981, granted the state's motion to dismiss the case for failure to state a cause of action.

Thereafter, on February 15, 1981, the commissioner reinstated his prior restrictive policy on abortion by revising the regulation to coincide with the then current Hyde amendment.

On March 2, 1981, an action was commenced in the Superior Court of Connecticut for the Judicial District of New Haven entitled Women's Health Services, Inc. v. Maher, No. 190341 (hereinafter Women's Health Case II ), seeking to declare that the regulation violated the constitution of Connecticut and to require the state to pay for all medically necessary abortions. Women's Health Case II was dismissed by the court, Fracasse, J., on the grounds that the plaintiffs in that case had failed to exhaust their administrative remedies and that they lacked standing.

Effective July 15, 1981, the commissioner again revised the regulation by restricting the payment for abortions under the medicaid program to life-threatening conditions.

In August, 1981, the plaintiffs brought this action seeking class certification, a declaratory judgment and temporary and permanent injunctions. The court, Berdon, J., entered, ex parte, a temporary mandatory injunction ordering the state to pay for the abortion of the named plaintiff, Rosie J. Doe. ⁸ At that time Doe was thirty-five years old, had five children, was a welfare recipient, and was eligible for medicaid. Although her life was not endangered as a result of her pregnancy, Doe required an abortion for medical reasons. After she became pregnant, it was necessary to perform a conization (a cutting of the cervix) in order to determine whether she had cervical cancer because the endocervical curetage showed dysplasia (precancerous cells). If an abortion were not performed, there would have been a risk that the conization would cause bleeding and hemorrhaging which could result in a miscarriage. Doe faced the possibility of further severe complications from the continuation of the pregnancy which included the following: She had been on methadone for the three preceding years. Her last two children had been born suffering from methadone withdrawal and they had to be hospitalized. If her pregnancy were to continue while she was on methadone, she also would have been placed at risk of cardiac arrest, shock, respiratory depression, circulatory depression and gastrointestinal problems. Because of Doe's age, her pregnancy could have caused further serious complications, including emotional and psychological distress.

On October 9, 1981, after hearing the parties, the court certified the following two classes: indigent pregnant women who qualify for medicaid and who desire a medically necessary abortion (hereinafter "poor women class"), and physicians who are certified by the state to provide medical care under medicaid and who agree to perform or advise women on medically necessary abortions (hereinafter "physician class"). The court then entered a temporary mandatory injunction in favor of the classes ordering the defendants to pay, under the medicaid program, for the costs of all therapeutic abortions whether or not the life of the woman was endangered by carrying the fetus to term. ⁹

Pursuant to the court's order, the commissioner adopted Policy 173G which provides, in part, that effective October 9, 1981, the state will pay for abortions when the attending physician has certified "that the abortion is medically necessary for the patient's health." ¹⁰

II SPECIAL DEFENSES

On October 9, 1981, the court also denied the defendants' motion to dismiss which challenged the court's jurisdiction. The same issues raised in the motion are included in the special defenses filed by the defendants. For those issues previously raised and ruled upon, the court affirms its decision of October 9, 1981, and incorporates its findings herein. In addition, the court will specifically, but in a summary manner, rule on each special defense. ¹¹

A FIRST SPECIAL DEFENSE--SOVEREIGN IMMUNITY

The harsh doctrine of sovereign immunity was relaxed by the Connecticut Supreme Court in Sentner v. Board of Trustees, 184 Conn. 339, 439 A.2d 1033 (1981). In Sentner the court held that the doctrine does not bar an action for declaratory judgment where the acts complained of are unconstitutional or unauthorized by statute. "In a constitutional democracy sovereign immunity must relax its bar when suits against government complain of unconstitutional acts." Id. at 343, 439 A.2d 1033. Since the present case is an action for declaratory judgment, the court has jurisdiction to grant the relief requested.

Furthermore, the aspect of this case that challenges the commissioner's adoption of the regulation as being ultra vires clearly is not subject to the defense of sovereign immunity. Weaver v. Ives, 152 Conn. 586, 590-91, 210 A.2d 661 (1965); see Sentner v. Board of Trustees, supra, 184 Conn. at 351 n. 4, 439 A.2d 1033 (Healey, J., dissenting).

B ...