Hern v. Beye

• Citation: 57 F.3d 906
• Decision Date: 08 June 1995
• Docket Number: No. 94-1205,94-1205
• Parties: , Medicare & Medicaid Guide P 43,270 Warren M. HERN; Grand Junction Women's Clinic; Planned Parenthood of the Rocky Mountains, named: Planned Parenthood of the Rocky Mountains, Inc.; Mayfair Women's Center, Plaintiffs-Appellees, v. Karen BEYE, Executive Director, State Department of Social Services, in her official capacity, Defendant-Appellant, Colorado State Legislature, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 906

57 F.3d 906

48 Soc.Sec.Rep.Ser. 200, Medicare & Medicaid Guide

P 43,270

Warren M. HERN; Grand Junction Women's Clinic; Planned Parenthood of the Rocky Mountains, named: Planned Parenthood of the Rocky Mountains, Inc. Mayfair Women's Center Plaintiffs-Appellees, v. Karen BEYE, Executive Director, State Department of Social Services, in her official capacity, Defendant-Appellant Colorado State Legislature, Amicus Curiae.

No. 94-1205.

United States Court of Appeals Tenth Circuit.

June 8, 1995.

Kathryn Kolbert, The Center for Reproductive Law & Policy, New York City (Eve C. Gartner and Janet Crepps, The Center for Reproductive Law & Policy, New York City, Daniel M. Reilly, McDermott, Hansen and Reilly, Denver, CO, with her on the brief), for plaintiffs-appellees.

Howard Holme and Craig A. Umbaugh, Fairfield and Woods, P.C., Denver, CO, on the brief for plaintiff-appellee Planned Parenthood of the Rocky Mountains, Inc.

Wade Livingston, First Asst. Atty. Gen., for the State of Colorado, Denver, CO (Gale A. Norton, Atty. Gen., and Paul Farley, Deputy Atty. Gen., with him on the briefs), for defendant-appellant Karen Beye.

Paul Benjamin Linton and Clarke D. Forsythe, Americans United for Life, Chicago, IL, on the brief amicus curiae for Colorado State Legislature.

Before MOORE, ANDERSON, and TACHA, Circuit Judges.

TACHA, Circuit Judge.

Plaintiffs are a physician and three women's health care facilities that provide abortion services to women in Colorado. They brought this action pursuant to 28 U.S.C. Secs. 2201 and 2202 seeking to enjoin defendant Karen Beye, the executive director of Colorado's Department of Social Services, from enforcing Colo. Const. art. V, Sec. 50, Colo.Rev.Stat. Secs. 26-4-105.5, 26-4-512, and 26-15-104.5, and 10 Colo.Code Regs. Sec. 2505-10 (8.733). These provisions forbid the Colorado state government, its agents, or its political subdivisions from funding abortions except to save the life of an expectant mother. The United States District Court for the District of Colorado held that a state that participates in the Medicaid program must fund abortions for Medicaid-eligible women to terminate pregnancies resulting from rape or incest. Accordingly, it granted plaintiffs an injunction prohibiting defendant from enforcing any of these provisions to the extent that they conflict with federal Medicaid law so long as Colorado continues to participate in Medicaid. We have jurisdiction pursuant to 28 U.S.C. Secs. 1291 and 1292(a)(1), and we affirm.

I

By initiative, the voters of Colorado amended the state's constitution in 1984 to add the following section:

No public funds shall be used by the State of Colorado, its agencies or political subdivisions to pay or otherwise reimburse, either directly or indirectly, any person, agency or facility for the performance of any induced abortion, PROVIDED HOWEVER, that the General Assembly, by specific bill, may authorize and appropriate funds to be used for those medical services necessary to prevent the death of either a pregnant woman or her unborn child under circumstances where every reasonable effort is made to preserve the life of each.

Colo. Const. art. V, Sec. 50. Colorado has incorporated the mandate of section 50 into its statutes, Colo.Rev.Stat. Secs. 26-4-105.5, 26-4-512, 26-15-104.5, and its code of regulations, 10 Colo.Code Regs. Sec. 2505-10 (8.733).

In 1976, eleven years after the creation of the Medicaid program, Congress passed the Hyde Amendment, a rider attached to the appropriations bill for the Departments of Labor and Health, Education and Welfare (HEW). ¹ Congress has subsequently altered the Hyde Amendment several times. The version in force from 1981 until 1993 prohibited the use of federal funds for abortions "except where the life of the mother would be endangered if the fetus were carried to term." See, e.g., Pub.L. No. 101-166, Sec. 204, 103 Stat. 1159, 1177 (1989).

On October 22, 1993, President Clinton signed into law the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 1994, Pub.L. No. 103-112, 107 Stat. 1082 (1993). The Act contained a new version of the Hyde Amendment that expanded the category of abortions for which federal funds are available under Medicaid. Id. Sec. 509, 107 Stat. at 1113 (the 1994 Hyde Amendment). The language now in force states:

None of the funds appropriated under this Act shall be expended for any abortion except when it is made known to the Federal entity or official to which funds are appropriated under this Act that such procedure is necessary to save the life of the mother or that the pregnancy is the result of an act of rape or incest.

Id.

On November 8, 1993, plaintiffs brought this action seeking injunctive relief. They claimed that, because Colorado's funding restriction denies coverage for abortions for which federal funds are available under the 1994 Hyde Amendment--namely, abortions to terminate pregnancies resulting from rape or incest--Colorado's Medicaid program violates mandatory federal requirements. Defendant contended that participating states are not required to fund all abortions for which federal funds are available. Rather, she argued, the language of the Hyde Amendment is purely permissive, and the underlying federal statute and regulations leave the decision of whether to finance such services to the discretion of participating states. The district court granted plaintiffs injunctive relief, enjoining defendant from enforcing Colorado's abortion funding restriction to the extent that it conflicts with federal law. ² Defendant now appeals.

II

Title XIX of the Social Security Act of 1965, 42 U.S.C. Secs. 1396-1396v, establishes Medicaid, a jointly funded federal-state program designed to finance medical care for indigent Americans. Its stated purpose is to "enabl[e] each State, as far as practicable under the conditions in such State, to furnish ... medical assistance [to those persons] whose income and resources are insufficient to meet the costs of necessary medical services." 42 U.S.C. Sec. 1396. Each state's participation in Medicaid is purely optional. Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671, 2680, 65 L.Ed.2d 784 (1980). But "[o]nce a State voluntarily chooses to participate in Medicaid, the State must comply with the requirements of Title XIX and applicable regulations." Alexander v. Choate, 469 U.S. 287, 289 n. 1, 105 S.Ct. 712, 714 n. 1, 83 L.Ed.2d 661 (1985). Colorado participates in Medicaid through the Colorado Medical Assistance Act, Colo.Rev.Stat. Secs. 26-4-101 to -704.

The Hyde Amendment circumscribes participating states' obligations to fund abortions under Medicaid. On its face, the Hyde Amendment appears to be only an appropriations measure; it merely prohibits the use of federal funds for certain services. But in Harris v. McRae, 448 U.S. at 297, 100 S.Ct. at 2677-78, the Supreme Court construed the Hyde Amendment as indirectly modifying states' obligations under Title XIX. The plaintiffs in McRae contended that, despite the Hyde Amendment, Title XIX required states to fund all medically necessary abortions, including those for which federal funds were unavailable. See id. at 304-05, 100 S.Ct. at 2681-82. The Court, however, reasoned that "Title XIX was designed as a cooperative program of shared financial responsibility, not as a device for the Federal Government to compel a State to provide services that Congress itself is unwilling to fund." Id. at 309, 100 S.Ct. at 2684. As a result,

by the normal operation of Title XIX, even if a State were otherwise required to include medically necessary abortions in its Medicaid plan, the withdrawal of federal funding under the Hyde Amendment would operate to relieve the State of that obligation for those abortions for which federal reimbursement is unavailable.

Id. at 310, 100 S.Ct. at 2684.

Thus, the Hyde Amendment--by denying federal funds for certain abortions--operates as an overlying exception to the requirements of Title XIX and accompanying regulations, carving out particular services that states are not obligated to cover. Under the 1994 Hyde Amendment, states are not required to fund abortions when the pregnancy is not the result of rape or incest and the expectant mother's life is not at stake.

Importantly, however, the Hyde Amendment does not affect states' underlying obligations imposed by Title XIX and federal Medicaid regulations. That is, although the Hyde Amendment relieves states of having to fund abortions for which federal funding is unavailable, it does not alter states' obligations with respect to abortions for which federal funding is available. Because the 1994 Hyde Amendment permits federal funding for abortions to end pregnancies resulting from rape or incest, the only issue here is whether Colorado's funding restriction contravenes the requirements of Title XIX and accompanying regulations.

III

Title XIX requires participating states to provide medical assistance to the "categorically needy"--individuals who qualify for Medicaid because they receive some form of federal cash assistance (e.g., Aid to Families with Dependent Children or Supplemental Security Income). 42 U.S.C. Sec. 1396a(a)(10)(A)(i); 42 C.F.R. Sec. 436.100-.128. States may also, at their option, cover "medically needy" individuals--persons who do not qualify as categorically needy but nevertheless cannot afford adequate medical care. 42 U.S.C. Sec. 1396a(a)(10)(A)(ii); 42 C.F.R. Sec. 436.300-.330.

While states have considerable flexibility in determining the scope of their Medicaid coverage, see 42 C.F.R. Sec. 430.0; Beal v. Doe, 432 U.S. 438, 444, 97 S.Ct. 2366, 2370-71, 53 L.Ed.2d 464 (1977), Title XIX requires states to cover at least seven general categories of medical services for categorically needy individuals, 42 U.S.C. Sec. 1396a(a); id. Sec. 1396d(a)(1)-(5), (17), (21); 42 C.F.R. Sec. 440.210. Abortion falls...