Hope v. Perales

• Decision Date: 23 March 1993
• Citation: 595 N.Y.S.2d 948,189 A.D.2d 287
• Parties: , 61 USLW 2587, Medicare & Medicaid Guide P 41,545 Jane HOPE and Jane Moe, on behalf of themselves and all others similarly situated, et al., Plaintiffs-Respondents, v. Cesar PERALES, Commissioner, New York State Department of Social Services, et al., Defendants-Appellants, and St. Vincent's Hospital and Medical Center of New York, et al., Proposed Intervenors Appellants.
• Court: New York Supreme Court — Appellate Division

Page 948

595 N.Y.S.2d 948

189 A.D.2d 287, 61 USLW 2587,

Medicare & Medicaid Guide P 41,545

Jane HOPE and Jane Moe, on behalf of themselves and all others similarly situated, et al., Plaintiffs-Respondents, v. Cesar PERALES, Commissioner, New York State Department of Social Services, et al., Defendants-Appellants and St. Vincent's Hospital and Medical Center of New York, et al., Proposed Intervenors Appellants.

Supreme Court, Appellate Division First Department.

March 23, 1993.

Donna Costa, of counsel (Deborah M. Buell, Samantha D. Malloy, Ayala Deutsch, Stephanie Cotsirilos, Catherine Weiss, Donna Lieberman, Robert M. Levy, Janet Benshoof and Laurie R. Rockett, with her on the brief; Cleary, Gottlieb, Steen & Hamilton, New York Civil Liberties Union Foundation; American Civil Liberties Union Foundation and Hollyer, Brady, Smith, Troxell, Barrett, Rockett & Hines, attorneys), for plaintiffs-respondents.

Judy Nathan, of counsel (Jerry Boone, Howard L. Zwickel and Carol S. Knox, with her on the brief, Robert Abrams, Atty. Gen., attorney), for defendants-appellants.

Michael L. Costello, of counsel (Tobin & Dempf, attorneys), for proposed intervenors-appellants other than Alma Poindexter.

Michael P. Tierney, for proposed-intervenor-appellant Alma Poindexter.

Donald Francis Donovan, of counsel (Christopher A. Murphy, Jennifer K. Weidman and Kathleen M. Conkey, with her on the brief, Debevoise & Plimpton, attorneys), on behalf of The American College of Obstetricians and Gynecologists, et al., as amici curiae.

Marcy J. Wilder, of counsel (Dawn Johnsen, Lois Eisner Murphy, Rebecca Arbogast, Ginger Levy, Michael C. Small, with her on brief), as attorneys on behalf of The Nat. Abortion Rights Action League, New York State NARAL and fifty-eight nat. and New York Organizations Committed to Women's Equality, as amici curiae.

Joseph W. Dellapenna and John D. Murnane, attorneys on behalf of The American Academy of Medical Ethics, as amicus curiae.

James W. Lytle, of counsel (Carl F. Patka and Beth A. Bourassa, with him on the brief, Whiteman Osterman & Hanna, attorneys), on behalf of the New York State Legislature, as amici curiae.

Michael L. Costello, Counsel of Record (Richard E. Barnes, Vincenza DeFazio, Clarke D. Forsythe, Alan J. Placa, Mildred A. Shanley, Kevin J. Todd, William J. Toohy and Eileen M. White, on the brief), on behalf of the New York State Catholic Conference, as amicus curiae.

A. Lawrence Washburn, Jr., of counsel (Mary Bridget Spaulding Balch, attorney), for New York State Right to Life Committee, Inc., as amicus curiae.

Lorna Bade Goodman (Meredith Anne Feinman, of counsel), O. Peter Sherwood, attorney, on behalf of the City of New York, amicus curiae.

Before MURPHY, P.J., and MILONAS, WALLACH, KASSAL and RUBIN, JJ.

PER CURIAM.

Plaintiffs, who include income eligible women, physicians and various health care organizations, commenced this action for declaratory and injunctive relief to challenge the constitutionality of the New York State Prenatal Care Assistance Program (PCAP), enacted pursuant to the Laws of 1989, Chapter 584, and codified in sections 2521, 2522 and 2529 of the Public Health Law. Defendants, the Commissioners of the New York State Department of Social Services and the Department of Health, are responsible for administering the program and promulgating guidelines thereunder. ¹ PCAP, which was enacted to take advantage of specifically designated federal funding, was aimed at decreasing infant mortality and promoting the health of infants and mothers. According to its provisions, pregnant women are entitled to receive financial assistance for a wide range of prenatal and postpartum care whenever their family incomes are between 100 and 185 percent of the poverty level.

The program, however, does not furnish any funding for other sorts of health care services, and plaintiffs maintain that, by failing to encompass allowances for medically necessary abortions for the class of women covered by PCAP and limiting the use of money to assure a healthy delivery and recovery, the statute's funding scheme is contrary to the New York State Constitution. In that regard, plaintiffs urge that PCAP interferes with these women's right to reproductive choice by improperly pressuring them toward childbirth, thereby violating Article I, § 3 (exercise of religion), Article I, § 6 (due process), Article I, § 11 (equal protection), Article XVII, § 1 (aid, care and support of the needy) and Article XVII, § 3 (protection and promotion of the health of the State's inhabitants) of the New York State Constitution.

It is defendants' position that the legislature's decision to enhance access to prenatal care does not impair the ability of women, whatever their income level, to procure abortions. Defendants assert that the availability of government funded prenatal care was expanded in order to remedy a special significant problem, the detrimental effect on the health of infants caused by the lack of prenatal care, and that the legislature devised a reasonable solution to deal with the situation. The legislature's determination to finance medical services intended to improve infant health, they claim, in no way damages, discriminates against, or even meaningfully relates to a women's right to an abortion, and, therefore, PCAP is constitutional in all respects. The Supreme Court, unpersuaded by defendants' argument, enjoined New York from denying funding for abortions to women at 100 to 185 percent of the poverty line, observing that:

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 ignores the risks to her health and the likelihood of grave fetal defects if she is left with no alternative but to bear the child when medically unwarranted. Under the existing legislative scheme, a poor working woman in this predicament should be able to raise the funds necessary to obtain an abortion. The wisdom and motivation behind this presumption underlying this policy established by the Legislature not to include funds for abortion, however, are not justiciable issues (Planned Parenthood Federation of America Inc. v. Agency for Int'l Development, 915 F.2d 59 [2d Cir.1990]; Klostermann v. Cuomo, 61 NY2d 525 [475 N.Y.S.2d 247, 463 N.E.2d 588]. What is justiciable is whether the funding scheme abridges an eligible woman's constitutional right to obtain an abortion free from governmental intrusion. (150 Misc.2d 985, 990, 571 N.Y.S.2d 972.)

The court then proceeded to hold that Chapter 584 unconstitutionally discriminates against women's right to reproductive freedom, which is part of the fundamental right to privacy protected by the due process clause of Article I, § 6 of the New York State Constitution. The court explained that "the right to privacy involves freedom of choice, the broad general right to make decisions concerning oneself and to conduct oneself in accordance with those decisions free of governmental restraint or interference (Matter of Doe v. Coughlin, 71 N.Y.2d 48, 52 [523 N.Y.S.2d 782, 518 N.E.2d 536], cert. den. 488 U.S. 879 [109 S.Ct. 196, 102 L.Ed.2d 166]. The essence of this freedom is the absence of governmental restraint or interference in the personal decisions concerning contraception (Eisenstadt v. Baird, 405 U.S. 438 [92 S.Ct. 1029, 31 L.Ed.2d 349, 1972], procreation (Skinner v. Oklahoma, 316 U.S. 535 [62 S.Ct. 1110, 86 L.Ed. 1655, 1942], and abortion (Roe v. Wade, 410 U.S. 113 ... [93 S.Ct. 705, 35 L.Ed.2d 147, 1973], to name just a few that fall within the ambit of this concept of privacy...." In the opinion of the court, "[t]he right of a pregnant woman to choose an abortion in circumstances where it is medically indicated is one component of the right of privacy" and, by excluding any abortion funding, "PCAP is facially deficient as it cannot fulfill its stated objective to combat infant mortality and promote healthier babies", and, moreover, it unconditionally bases assistance on conduct rather than need.

The court agreed with plaintiffs' contention that PCAP impermissibly steers an eligible indigent woman toward childbirth when it pays all of the expenses incurred in childbirth and none of those associated with terminating a pregnancy. Thus, the court noted, "PCAP becomes an affirmative act by the State blocking a woman without means from obtaining an abortion, possibly creating a serious risk to the woman's life and/or health." The practical effect of Chapter 584, the Supreme Court concluded, is to discriminate against women for whom an abortion is medically necessary but cannot afford to pay for such a procedure. The court, while rejecting plaintiffs' claim that PCAP interferes with women's free exercise of religion, nonetheless determined that the program also abridges their rights under the aid to the needy, public health and equal protection clauses of the New York State Constitution. Defendants have appealed. Finally, the Supreme Court stayed enforcement of its ruling pending final resolution of any appeals.

In 1986, when Congress first adopted a federal prenatal care program, the states were not compelled to include such benefits in their own plans. Further, the ambit of Medicaid was not simply extended to fund prenatal care for women whose incomes were below the poverty level, but Congress authorized money to provide prenatal care to women with low incomes that were above the poverty level. However, an amendment in 1989 made it mandatory for states to furnish PCAP to women with incomes at or below 75 percent of the poverty level and accorded states the option of making services available to women having incomes up to 185 percent of the poverty level (42 U.S.C. § 1396a[l][2][A][ii]. More recently, Congress has required states to afford PCAP to women with family incomes up to 133 percent of the poverty level, and they may provide services to women having...