Hope v. Perales

CourtUnited States State Supreme Court (New York)
Writing for the CourtC. BEAUCHAMP CIPARICK
Citation150 Misc.2d 985,571 N.Y.S.2d 972
PartiesJane HOPE and Jane Moe, on behalf of themselves and all others similarly situated, Vicki Alexander, M.D., Solan Chao, M.D., E. Hakim Elahi, M.D., Arnold Roufa, M.D., Frances Thacher, CNM, Reverend Richard S. Gilbert, Reverend Julia Quinlan, Buffalo GYN Womenservices, Cayuga Family Planning Council, Erie Medical Center, Planned Parenthood of New York City, Planned Parenthood of Suffolk County, Planned Parenthood of Tompkins County, the Committee for Hispanic Children and Families, the League of Women Voters of New York State, the New York Black Women's Health Project, and the New York State Public Health Association, Plaintiffs, v. Cesar PERALES, Commissioner, New York State Department of Social Services and David Axelrod, M.D., Commissioner, New York State Department of Health, Defendants.
Decision Date15 April 1991

Cleary, Gotleib, Steen & Hamilton by Stephanie Cotsirilos, New York Civ. Liberties Union Foundation by Catherine Weiss, and American Civ. Liberties Union Foundation by Janet Benshoof, New York City, for plaintiffs.

Robert Abrams, State Atty. Gen. by Judy E. Nathan, New York City, for state defendants.


This is an action challenging the constitutionality of the Prenatal Care Assistance Program (Public Health Law § 2520 et seq.) (PCAP) a medical assistance program for pregnant women with incomes at or below 100 and 185 per cent of the federal poverty line, offering services designed to promote a healthy pregnancy, delivery and recovery.

Plaintiffs, two women with incomes between 100 percent and 185 percent of the federal poverty line; four physicians who practice as obstetricians and gynecologists; one nurse-midwife affiliated with a New York City hospital; seven health care clinics that serve women in the PCAP income bracket; four advocacy organizations whose memberships include women in this income category; and two members of the clergy who offer women in the stated income category guidance, move for (1) an injunction enjoining enforcement of Chapter 584 of the Laws of 1989, effective January 1, 1990 (amending Public Health Law §§ 2521, 2522 and 2529) and the regulations promulgated thereunder, to the extent Defendants Cesar Perales, Commissioner of the New York State Department of Social Services, and David Axelrod, M.D., Commissioner of the New York State Department of Health, both directors of the state agencies charged with administering PCAP, cross-move for summary judgment declaring that PCAP is constitutional.

that such enactments fail to provide reimbursement to health care providers who perform medically necessary abortions on women otherwise eligible for medical care under PCAP established[150 Misc.2d 987] by Chapter 584; and (2) a declaration that the plaintiff class of women are entitled to funding of medically necessary abortions.

At a hearing on September 24, 1990, plaintiffs' motion for a temporary restraining order enjoining enforcement of Chapter 584 was denied without prejudice to further proceedings. Plaintiff Jane Hope at that time was over twenty-one weeks pregnant. Under the relevant criteria, it is alleged that Hope would be eligible for prenatal medical care under PCAP. As a carrier of sickle cell anemia, Hope was advised to terminate her pregnancy by abortion, a procedure specifically excluded from funding under PCAP. 1

Therefore, Hope and Jane Moe, on behalf of all pregnant women who might require a therapeutic abortion, joined by physicians who provide obstetrical and gynecological care to women who would be eligible for PCAP, a certified nurse-midwife, family planning and medical clinics who service women eligible for PCAP and advocacy organizations who represent and include as members women eligible for PCAP, instituted the instant action challenging the constitutionality of PCAP.

Plaintiffs maintain that Chapter 584 violates provisions of the New York State Constitution including the free exercise of religion clause (Article I § 3), the due process clause (Article I § 6), the equal protection clause (Article I § 11), the clause pledging aid, care and support of the needy (Article XVII § 1), and the clause pledging protection and promotion of the health of the inhabitants of the State (Article XVII § 3) by excluding funds for medically necessary abortions to the class of women with incomes between 100 and 185 percent of the federal poverty line ("eligible women") who would otherwise be eligible for medical assistance under PCAP. Plaintiffs label the funding scheme of PCAP discriminatory against this class of women on the ground that it "burdens the exercise of the right of reproductive choice" and improperly pressures these women toward childbirth.

By stipulation dated and so ordered December 14, 1990, the parties agreed that if an eligible woman elects to have an abortion, she cannot be denied coverage for all other services provided in Public Health Law § 2522(1) including, inter alia, transportation to all covered services, inpatient care, specialty physician and clinic services necessary following pregnancy or abortion to ensure a healthy recovery and mental health and related social services. Defendant

                New York State Department of Social Services agreed to send notices clarifying this to all Medicaid providers.   It was further stipulated that the second and fifth causes of action were withdrawn with the exception of those allegations relating to transportation to and from an abortion and without prejudice to separate lawsuits by eligible women denied coverage for the services enumerated in Public Health Law § 2522(1)

Plaintiffs do not seek to halt the prenatal and postpartum services currently being provided under PCAP. Indeed, it is uncontroverted that PCAP serves a laudatory purpose and none of the parties or amici to this proceeding would have this court void Chapter 584 on the grounds of unconstitutionality effectively terminating all prenatal and obstetric assistance now extended under PCAP. Rather the instant dispute involves the scope of services funded under PCAP.

It is plaintiffs' position that PCAP is underinclusive in its blanket exclusion of funds for all abortions without exception, for example, to preserve the life of the mother. Plaintiffs' objective in this proceeding is to expand the breadth of Chapter 584 to include financing for abortions in the case of medical necessity by way of an injunction prohibiting denial of such funding.

Plaintiffs insist that in the wake of Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989); Hodgson v. Minnesota, 497 U.S. ----, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) and Ohio v. Akron Center for Reproductive Health, --- U.S. ----, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990), the federal right to privacy is tenuous and in this case New York is given the opportunity to reaffirm the fundamental nature of the right to an abortion under the New York State Constitution where, as here, the State lacks the compelling interest needed to justify impairment of such right by legislative decree.

While plaintiffs acknowledge that the State is not required to finance the exercise of fundamental constitutional rights (Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 [1980], they nevertheless maintain that the State cannot wield its economic power to dictate the choice it prefers, in this instance, childbirth.

Defendants counter that New York has an important and substantial interest in providing access to prenatal and obstetric care to women with incomes between 100 and 185 percent of the federal poverty line who otherwise might not have sought such care or postponed it until the late stages of pregnancy. To address this interest the legislature enacted Chapter 584 as "one step" toward ameliorating this serious problem. PCAP is intended to expand an existing medical assistance program; there is no constitutional requirement that it be all encompassing. Defendants contend that the legislative decision to promote the health of newborns through a specifically tailored medical assistance program does not deprive this group of women of their right to obtain an abortion simply because the State is not supplying the funds. Indeed, the State assumes these women can raise the funds necessary to obtain an abortion as they are above the poverty line and presumably have resources to draw upon. Therefore, defendants declare that PCAP places no obstacles in an eligible woman's path to obtain an abortion and does not impinge on the exercise of her right to choose an abortion.


PCAP was first established on the Federal level to authorize reimbursement for medical services related to pregnancy provided to women with incomes up to 185 percent of the poverty level (42 U.S.C. § 1396a[a][10][A][i][III]. Reimbursement is given only for expenditures authorized by statute, unlike Medicaid which provides reimbursement for all medically necessary care rendered to qualified individuals.

To avail itself of these designated PCAP federal funds, New York adopted Chapter 584 establishing the State guidelines for An eligible woman has no claim for state assistance under PCAP unless she is pregnant. At this time, she becomes presumptively eligible for the panoply of services offered under PCAP. Regardless of the circumstances, she is not entitled to funds for an abortion, even if her health and/or life is in grave danger because of the pregnancy.

                PCAP, which act expressly provides that funding is only available to the extent of federal reimbursement--which does not include funding for abortions.   Under PCAP, any Medicaid provider is authorized to furnish the enumerated services and obtain reimbursement

Certainly, the dichotomy of care created by PCAP is not designed to ensure that an eligible woman receives the medical assistance best suited for her for it...

To continue reading

Request your trial
6 cases
  • People v. Arthur
    • United States
    • United States State Supreme Court (New York)
    • November 14, 1997
    ...on other grounds sub. nom. People v. Scott, 79 N.Y.2d 474, 583 N.Y.S.2d 920, 593 N.E.2d 1328 [1992]; see Page 494 also Hope v. Perales, 150 Misc.2d 985, 1000, 571 N.Y.S.2d 972 [Sup.Ct., N.Y.Co.1991] [Ciparik, J.], aff'd on other grounds, 189 A.D.2d 287, 595 N.Y.S.2d 948 [1st Dept.1993], rev......
  • Doe v. Department of Social Services, s. 91092
    • United States
    • Supreme Court of Michigan
    • June 9, 1992
    ...& Finance, 382 Mass. 629, 417 N.E.2d 387 1981), Right to Choose v. Byrne, 91 N.J. 287, 450 A.2d 925 (1982), and Hope v. Perales, 150 Misc.2d 985, 571 N.Y.S.2d 972 3 Although the claim in question has been characterized as positing the recipient's right vis-a-vis that of a nonviable fetus (T......
  • Initiative Petition No. 349, State Question No. 642, In re, 76437
    • United States
    • Supreme Court of Oklahoma
    • August 4, 1992
    ...866, 625 P.2d 779, 796 (1981); Doe v. Director of Dept. of Social Serv., 187 Mich.App. 493, 468 N.W.2d 862, 870 (1991); Hope v. Perales, 150 Misc.2d 985, 571 N.Y.S.2d 972, 979 (1991). We are not called upon here to do so, nor will we speculate concerning the scope of individual liberty unde......
  • Valley Hosp. Ass'n, Inc. v. Mat-Su Coalition for Choice, MAT-SU
    • United States
    • Supreme Court of Alaska (US)
    • November 21, 1997
    ...a pregnancy as a fundamental state constitutional right and striking down legislation restricting abortion rights); Hope v. Perales, 150 Misc.2d 985, 571 N.Y.S.2d 972 (Sup.Ct.1991) (applying a strict scrutiny standard for fundamental rights and determining that state failure to fund medical......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT