Doe v. Rose

• Decision Date: 27 June 1974
• Docket Number: No. 73-1736.,73-1736.
• Parties: Jane DOE, on behalf of herself and all others similarly situated, et al., Plaintiffs-Appellees, v. Paul S. ROSE, Individually and in his capacity as Executive Director of the Utah State Department of Social Services, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

499 F.2d 1112 (1974)

Jane DOE, on behalf of herself and all others similarly situated, et al., Plaintiffs-Appellees, v. Paul S. ROSE, Individually and in his capacity as Executive Director of the Utah State Department of Social Services, Defendant-Appellant.

No. 73-1736.

United States Court of Appeals, Tenth Circuit.

June 27, 1974.

David S. Dolowitz, Salt Lake City, Utah, for plaintiffs-appellees.

Willard Michael Howery, Asst. Atty. Gen. (Joseph McCarthy and William C. Loos, Asst. Attys. Gen., on the brief), for defendant-appellant.

Before DURFEE,^* Judge, and HILL and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

The issue here presented concerns the propriety of a so-called informal policy in Utah concerning abortions and the circumstances under which they would be paid for by federal-state welfare funds. Though the policy had not been reduced to writing, it nonetheless was followed by Paul S. Rose, the Executive Director of the Utah State Department of Social Services, in his administration of welfare monies.

Rose's policy was that an indigent pregnant woman entitled to medical services and care for her pregnancy under the Medicaid program is not entitled to an abortion at the expense of Medicaid unless application therefor is approved by him, in his official capacity, in advance of the operation as being a "therapeutic" abortion. A "therapeutic" abortion, in turn, is defined by Rose as one necessary to save the life of the expectant mother or to prevent serious and permanent impairment to her physical health, and none other.

The trial court concluded, in effect, that such policy was certainly not required by either the state or federal statutes relating to medical care and services for the indigent, and that, on the contrary, under applicable federal statutes¹ Rose was actually without authority to deny payment for abortions unless such were deemed therapeutic under his definition of that word. The trial court additionally held the policy to be at odds with the Fourteenth Amendment. Accordingly, the trial court enjoined Rose from enforcing his policy concerning abortions and when they would be paid for by Medicaid. As will be developed, we prefer to dispose of this appeal on constitutional grounds, and we affirm on that basis. Some background facts will place the controversy in context.

Jane Doe, Jane Roe and Jane Poe are all eligible for categorical assistance under Medicaid. At the time the present proceeding was instituted in the trial court, each was pregnant, Jane Doe and Jane Roe being in the second trimester of their respective pregnancies, and Jane Poe being in her first trimester. Each sought an abortion at the University of Utah Hospital, and in each instance the proposed abortion was approved by the hospital staff as being medically appropriate. However, the hospital authorities had been put on notice by Rose that there would be no reimbursement by Medicaid for any abortion unless an application therefor was made to him, Rose, prior to the operation and approved by him as being a therapeutic abortion. As concerns the proposed abortion of the three, though each had been deemed medically appropriate by the hospital staff, none was therapeutically necessary under Rose's definition of that word. It was in this setting that the three pregnant women went to court.

Doe, Roe and Poe instituted the present action in the United States District Court for the Central Division of Utah on behalf of themselves and all others similarly situated. As indicated, the one defendant was Paul S. Rose, individually and in his official capacity as Executive Director of the Utah State Department of Social Services.

In their complaint the plaintiffs sought a declaration that Rose's abortion policy be declared illegal and that Rose be enjoined from enforcing it. Upon hearing, after notice, the trial court granted a preliminary injunction enjoining Rose from enforcing the policy here in question, and plaintiffs Roe, Doe and Poe, and possibly others similarly situated, were then aborted. Later the parties agreed upon a stipulated statement of facts, and then each moved for summary judgment based on such stipulation. The trial court denied Rose's motion for summary judgment, and granted the motion filed by the plaintiffs. In accord therewith the trial court² then permanently enjoined Rose from refusing to disburse Medicaid funds for the payment of nontherapeutic abortions. Rose now appeals. We affirm.

At the outset, so far as we are advised the applicable federal statutes regarding Medicaid make no mention, as such, of abortions. Hence, we lack specific guidance as to whether Congress intended that abortions be covered by Medicaid and, if so, more critically, which abortions were to be covered by Medicaid benefits. The import, however, of the federal statutory scheme is that indigents who qualify for Medicaid benefits are to receive all necessary medical and hospital care, and in connection therewith the respective states are empowered to impose reasonable standards for carrying out the objectives of the federal program.

The implementing state statutes of Utah, as well as the latter's state plan, submitted to and approved by the federal authorities, also make no mention, as such, of abortions. Hence, this is not an instance where the administrative policy under attack is mandated by either state or federal statute. By the same token, in our view there is nothing in either the federal or state statutes which specifically bars the policy here followed by Rose. In this regard, we are mindful of the Supreme Court's preference for statutory, as opposed to constitutional, resolution of welfare controversies. See Wyman v. Rothstein, 398 U.S. 275, 90 S.Ct. 1582, 26 L.Ed.2d 218 (1970). Nevertheless, in light of the applicable statutes' complete silence on the abortion question, we prefer to dispose of the present appeal on constitutional grounds, rather than by any strained effort to show that the policy in question is, in effect, though not in so many words, prohibited by either federal or state statute. To reiterate, then, since the abortion question finds its first, and only, mention in the informal policy of Rose, this policy, and not any federal or state statute relating to Medicaid, is the heart of the present controversy.

We see no need to here review in detail the nature of the federal-state relationship in the broad field of welfare benefits for the indigent. It is sufficient to simply note that a state need not, in the first instance, participate at all in the various federal welfare programs, and that should a state decide to participate, then the degree of its participation is also a matter to be determined by the state. However, once a state elects to participate in a federal welfare program, it must follow federal statutes and regulations and must also administer the program in a constitutional manner. See Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), and King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). In fact, even a state welfare program funded entirely by the state must be administered in a manner consistent with the United States Constitution. New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619, 93 S.Ct. 1700, 36 L.Ed.2d 543 (1973). At the same time, however, a state does have considerable latitude in dispensing its available welfare funds, and accordingly a state regulation concerning the disbursement of welfare funds which is "rationally based and free from invidious discrimination" will not offend the Constitution and is to be given effect. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).

Proceeding from these general principles to the case at hand, we deem Doe v. Rampton, 366 F.Supp. 189 (D.Utah 1973) (three-judge court), to be particularly helpful in disposing of the present appeal. That case involved the constitutionality of a series of Utah statutes regulating abortions. Section 314 of the statute there under consideration declared, inter alia, that no public assistance grant, medical or otherwise, may be used for an abortion. This section further provided that no state funds could be used to pay for abortions unless the abortion was necessary to save the life of the pregnant woman or to prevent serious and permanent injury to her physical health.

In Doe v. Rampton, the aforesaid § 314 of the Utah statute was held to be unconstitutional under the Ninth and Fourteenth Amendments, the court stating that such provision is invalid because it would limit the exercise of the right to an abortion in all trimesters, for reasons having no apparent connection to the health of the mother or child. And in that case the court went on to declare in so may words that "the State may not use its Medicaid program to limit abortions." We generally agree with these pronouncements.

In the instant case, we are concerned, not with a statute, but with an informal policy of the Executive Director of the Utah State Department of Social Services which is almost identical to the aforesaid § 314. Each would preclude an indigent pregnant woman from receiving an abortion at the expense of public welfare funds unless the abortion was necessary to save her life or prevent serious and permanent damage to her physical health, regardless of her trimester. If a statute to such effect is invalid, as was the holding in Doe v. Rampton, it would seem to logically follow that an informal policy to the same effect is also invalid. And we so hold.

Without analyzing in depth 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), a contrary holding in the instant case would in our view fly in the face of those two cases. The Supreme Court's decisions in Wade and Bolton clearly indicate that in the absence of a compelling state interest a state may not bar all abortions,...