Jaffe v. Sharp

• Decision Date: 28 July 1978
• Docket Number: Civ. A. No. 78-1637-C,78-1653-C.
• Citation: 463 F. Supp. 222
• Parties: Don R. JAFFE, M.D., et al., Plaintiffs, v. Alexander E. SHARP, II, Defendant. PRETERM, INC., et al., Plaintiffs, v. Michael S. DUKAKIS et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

463 F. Supp. 222

Don R. JAFFE, M.D., et al., Plaintiffs, v. Alexander E. SHARP, II, Defendant.

PRETERM, INC., et al., Plaintiffs, v. Michael S. DUKAKIS et al., Defendants.

Civ. A. Nos. 78-1637-C, 78-1653-C.

United States District Court, D. Massachusetts.

July 28, 1978.

COPYRIGHT MATERIAL OMITTED

Joseph J. Balliro, Joan C. Schmidt, Boston, Mass., for plaintiffs in No. 78-1637.

Joseph J. Hurley, Nutter, McClennen & Fish, Boston, Mass., S. Stephen Rosenfeld, Asst. Atty. Gen., Chief, Gov. Bureau, Boston, Mass., for defendants.

Silverglate, Shapiro & Gertner, Nancy Gertner, John Reinstein, Mass. Civil Liberties Union Foundation, Boston, Mass., for plaintiffs in No. 78-1653.

OPINION

CAFFREY, Chief Judge.

These civil actions brought under 42 U.S. C.A. § 1983 challenge the refusal of the Commonwealth of Massachusetts to fund abortions for Medicaid recipients except when necessary to prevent the death of the mother or in cases of forced rape or incest. Both declaratory and injunctive relief is sought. The matter is currently before the Court after a hearing on plaintiffs' motions for preliminary injunctions under Fed.R. Civ.P. 65.

Plaintiffs in No. 78-1637-C include Susan Doe, Susan Doe, II, and Susan Doe, III,¹ indigent pregnant women seeking state-funded abortions; Don R. Jaffe M.D., a Massachusetts physician and authorized Medicaid provider; William Baird, an abortion counselor, and a director of plaintiff Parents Aid Society, Inc. (Parents Aid). This organization is a non-profit Massachusetts corporation which provides, inter alia, abortion counseling. The defendant is Alexander Sharp, II, Massachusetts Commissioner of Public Welfare.

Plaintiffs in the related case, No. 78-1653-C, are Preterm, Inc., a non-profit corporation providing clinical services including abortions for indigent women; Stanton P. Goldstein, M.D., and Shiao-Yu Lee, M.D., board-certified obstetricians and gynecologists practicing in Massachusetts; Jane Doe, a pregnant resident of Massachusetts who is Medicaid-eligible; Massachusetts Welfare Recipients for Welfare Reform (MWRWR), an unincorporated association of recipients of public assistance, and Planned Parenthood League of Massachusetts, an unincorporated agency providing, inter alia, abortion counseling. Defendants are Michael Dukakis, Governor of Massachusetts; John Buckley, Secretary of Administration and Finance for the Commonwealth; Gerald Stevens, Secretary of Human Services, and Public Welfare Commissioner Sharp.

Both sets of plaintiffs seek class certification under Fed.R.Civ.P. 23. In Preterm, the defendants have stipulated to the certification of two classes under Rule 23(b)(2):

(1) a class consisting of all Medicaid-eligible pregnant women who desire to obtain an abortion and for whom a physician has determined that an abortion is a medically-necessary service but for whom an abortion is not necessary to prevent death, and

(2) a class consisting of all physicians and other Medicaid providers whose patients desire to obtain abortions and who are willing to perform abortions which a physician has determined to be "medically necessary" but which are not necessary to save the life of the patient.

The gravamen of both complaints is the constitutionality of Chapter 367, § 2, Item 4402-5000, of the Massachusetts Acts of 1978 (hereafter ch. 367),² which provides:

and provided, further that no funds appropriated under this item shall be expended for the payment of abortions not necessary to prevent the death of the mother. This provision does not prohibit payment for medical procedures necessary for the prompt treatment of the victims of forced rape or incest if such rape or incest is reported to a licensed hospital or law enforcement agency within thirty days after said incident.

The plaintiffs assert that ch. 367's restriction on state funding of abortions is inconsistent with the requirements of Title XIX (commonly called "Medicaid") of the Social Security Act, as added 79 Stat. 343, and amended, 42 U.S.C.A. § 1396 et seq. (1970 ed. & Supp. V)³ and is also violative of the Fourteenth Amendment's guarantee of due process and equal protection. The thrust of the defendants' response is that ch. 367 meets all statutory and constitutional requirements. Jurisdiction is invoked under 28 U.S.C.A. §§ 1331 and 1343.

The plaintiffs seek a range of preliminary injunctive relief. Preterm and Jaffe both seek to restrain the defendants from enforcing or executing that portion of ch. 367 at issue here. The Jaffe plaintiffs seek a general order, while Preterm has requested an order enjoining defendants from denying state Medicaid payments "for the rendition of medical services to indigent pregnant women for abortions which a physician has determined to be medically necessary, or to deny such payments on behalf of any such indigent pregnant women for such abortions." Preterm also seeks to enjoin defendants from directing notice to any Medicaid providers or to Medicaid recipients that such abortions are not reimbursable. The defendants' state their position on relief as follows:

If the court were to limit relief to the addition of one more category to the list of permitted abortions . . . then, on balance, the relief would be sufficiently narrow and precise to leave the state Medicaid provision intact. However, if the court were . . . to . . . strike the abortion proviso altogether, leaving the Medicaid appropriation available to fund all the abortions which were permitted last year, the relief would amount to a severance of the abortion proviso nowhere indicated by the Legislature.

To be entitled to the requested preliminary injunction, it is well-settled that plaintiffs must demonstrate a reasonable probability of success on the merits plus immediate irreparable harm which outweighs the possible harm to defendants from the Court's intervention. E. g., Garzaro v. University of Púerto Rico, 575 F.2d 335 (1st Cir. 1978), slip op. at 5; Tuxworth v. Froehlke, 449 F.2d 763, 764 (1st Cir. 1971); Automatic Radio Mfg. Co. v. Ford Motor Co., 390 F.2d 113, 115-16 (1st Cir.), cert. denied, 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968).

Success on the Merits

In order to address the statutory claim raised by plaintiffs—that Title XIX requires states which participate in the Medicaid program to fund "medically necessary" abortions⁴—it is necessary at the outset to examine briefly the interplay between Title XIX and the Massachusetts Medicaid program. Joint federal-state responsibility in the funding of Medicaid has been designated a "scheme of cooperative federalism." New York State Department of Social Services v. Dublino, 413 U.S. 405, 413, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973); King v. Smith, 392 U.S. 309, 316, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). While Medicaid is jointly financed, the program is administered solely by the states. Massachusetts, as a participating state, established its program "in express conformity" with the federal program. See M.G.L.A. ch. 118E (West & Supp.1977-78). In particular, § 6 of ch. 118E requires that the State "provide financial assistance for such medical care or services" as Title XIX and the regulations promulgated thereunder require. The Department of Public Welfare is the state agency designated under § 1396a(a)(5) to administer the state Medicaid plan.

Under Title XIX, the state plan must conform with certain federal statutory requirements and the accompanying regulations. §§ 1320c-13, 1396a; Philbrook v. Glodgett, 421 U.S. 707, 95 S.Ct. 1893, 44 L.Ed.2d 525 (1975); King v. Smith, supra. Specifically, participating states are required to provide medical services to certain individuals and families, i. e., those eligible through such programs as Aid to Families with Dependent Children and Supplemental Security Income for the Aged, Blind and Disabled. See § 1396a(a)(13). Such individuals and families are designated as "categorically needy." 42 C.F.R. 249.10(a)(1). In addition to the mandatory provision of medical care to the "categorically needy," a state has the option of also providing services to those characterized as "medically needy," and Massachusetts has elected to provide such services. M.G.L.A. 118E. "Medically needy" individuals and families are those whose income exceeds that of the "categorically needy," but is nevertheless insufficient to cover medical care. § 1396a(a)(10)(B).

For those of its residents who are "categorically needy," Massachusetts is required by Title XIX to provide five general categories of medical treatment:

(1) inpatient hospital services (other than services in an institution for tuberculosis or mental diseases);

(2) outpatient hospital services;

(3) other laboratory and x-ray services;

(4)(A) skilled nursing facility services . . . for individuals 21 years of age or older (B) . . . such early and periodic screening and diagnosis of individuals who are eligible under the plan and are under the age of 21 to ascertain their physical or mental defects, and such health care, treatment, and other measures to correct or ameliorate defects and chronic conditions discovered thereby, . . .; and (C) family planning services and supplies furnished . . . to individuals to child-bearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies;

(5) physicians' services furnished by a physician . . . whether furnished in the office, the patient's home, a hospital, or a skilled nursing facility, or elsewhere; § 1396d(a).

Although Title XIX does not require states to provide funding for all treatment within those five general categories, state Medicaid plans are required to establish "reasonable standards . . . for determining . . . the extent of medical assistance under the plan which . . . are consistent with . . . Title XIX's objectives . . . ." § 1396a(a)(17). It is recognized that this language bestows wide discretion on the states,...