Little Rock Family Planning Services, P.A. v. Dalton

• Decision Date: 25 July 1995
• Docket Number: 94-3903,Nos. 94-2885,s. 94-2885
• Parties: , 48 Soc.Sec.Rep.Ser. 393, Medicare & Medicaid Guide P 43,518 LITTLE ROCK FAMILY PLANNING SERVICES, P.A.; Curtis E. Stover, M.D.; Fayetteville Women's Clinic; Tom Tvedten, M.D., on behalf of themselves and the Medicaid-eligible women of the State of Arkansas to whom they provide health care, Appellees, v. Thomas DALTON, Director of the Arkansas Department of Human Services, in his official capacity; Kenny Whitlock, Deputy Director of the Arkansas Division of Economic and Medical Services, in his official capacity; Jim Guy Tucker, Governor of the State of Arkansas in his official capacity, and their successors, Appellants. G. William ORR, M.D., on behalf of himself and the Medicaid-eligible women seeking abortions he serves; Womens Services, P.C., Appellees, v. E. Benjamin NELSON, in his official capacity as Governor of the State of Nebraska; Donald Stenberg, in his official capacity as Attorney General of the State of Nebraska; Mary Dean Harvey, in her official capacity as Director of the Nebraska Department of Social Services, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 497

60 F.3d 497

64 USLW 2073, 48 Soc.Sec.Rep.Ser. 393,

Medicare & Medicaid Guide P 43,518

LITTLE ROCK FAMILY PLANNING SERVICES, P.A.; Curtis E.

Stover, M.D.; Fayetteville Women's Clinic; Tom Tvedten,

M.D., on behalf of themselves and the Medicaid-eligible

women of the State of Arkansas to whom they provide health

care, Appellees, v. Thomas DALTON, Director of the Arkansas Department of Human

Services, in his official capacity; Kenny Whitlock, Deputy

Director of the Arkansas Division of Economic and Medical

Services, in his official capacity; Jim Guy Tucker,

Governor of the State of Arkansas in his official capacity,

and their successors, Appellants.

G. William ORR, M.D., on behalf of himself and the

Medicaid-eligible women seeking abortions he

serves; Womens Services, P.C., Appellees, v. E. Benjamin NELSON, in his official capacity as Governor of

the State of Nebraska; Donald Stenberg, in his official

capacity as Attorney General of the State of Nebraska; Mary

Dean Harvey, in her official capacity as Director of the

Nebraska Department of Social Services, Appellants.

Nos. 94-2885, 94-3903.

United States Court of Appeals,

Eighth Circuit.

Submitted April 4, 1995.

Decided July 25, 1995.

Debby Thetford Nye, Little Rock, AR, argued (Ann Purvis, on the brief), for appellant in 94-2885.

David T. Bydalek, Lincoln, NE, argued (L. Steven Grasz, on the brief), for appellant in 94-3903.

Eve C. Gartner, New York City, argued (Kathryn Kolbert, New York City, and Bettina Brownstein, on the brief), for appellee.

Before McMILLIAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and BOWMAN, Circuit Judge.

McMILLIAN, Circuit Judge.

These cases were consolidated for purposes of appeal. In appeal No. 94-2885EA, Arkansas state officials (the Arkansas defendants) appeal from a final judgment entered in the United States District Court ¹ for the Eastern District of Arkansas holding that an amendment to the Arkansas state constitution providing that no public funds will be used to pay for abortions except to save the life of the mother violated the 1994 Hyde Amendment and enjoining its enforcement. Little Rock Family Planning Services v. Dalton, 860 F.Supp. 609 (E.D.Ark.1994) (Dalton). In appeal No. 94-3903NE, Nebraska state officials (the Nebraska defendants) appeal from a final judgment entered in the United States District Court ² for the District of Nebraska holding that a Nebraska state regulation providing that no state funds will be used to pay for abortions except to save the life of the mother violated the 1994 Hyde Amendment and enjoining its enforcement. Orr v. Nelson, No. 4:CV94-3252 (D.Neb. Nov. 4, 1994) (Orr). For reversal the Nebraska defendants argue the plaintiffs' supremacy clause claim is not enforceable under 42 U.S.C. Sec. 1983 and therefore the district court did not have subject matter jurisdiction. The Nebraska and Arkansas defendants argue on the merits that the Nebraska state regulation and the Arkansas state constitutional amendment do not violate the 1994 Hyde Amendment. For the reasons discussed below, we affirm both judgments.

BACKGROUND FACTS

There are no material facts in dispute in either case. The following statement of background facts about the Medicaid program and the Hyde Amendments is taken in large part from the Dalton memorandum opinion.

Medicaid is a jointly funded, federal-state program designed to provide medical assistance to the poor. 42 U.S.C. Secs. 1396-1396v (Title XIX of the Social Security Act of 1965). Although a state's participation in the Medicaid program is voluntary, "[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). "States choosing to participate in the Medicaid program may elect to provide medical services either to the 'categorically needy' only, or to both the 'categorically needy' and the 'medically needy.' " Dalton, 860 F.Supp. at 615. "The 'categorically "Participating states must adopt a Medicaid plan explaining the state's eligibility requirements and the services that will be funded; the state plan must gain approval from the federal government." Id. Certain categories of medical care must be provided by every state Medicaid program; other categories are optional. Mandatory categories of medical care include inpatient hospital services, outpatient hospital services, other laboratory and x-ray services, skilled nursing facilities, "early and periodic screening, diagnostic and treatment" services for persons under the age of 21, family planning services and supplies, and physicians' services. 42 U.S.C. Sec. 1396d(a). "Abortion falls within several of the mandatory categories, including family planning services, physicians' services, outpatient hospital services, and inpatient hospital services." Dalton, 860 F.Supp. at 616. The state plan must cover medical services that a person's physician certifies are "medically necessary." Id. The Medicaid statute does not refer expressly to abortion; however, the Medicaid statute "does not identify any specific medical procedures, whether they are cesarean sections, transfusions, bypass surgery, or abortions." Id. "Because abortion falls within several of these mandated categories [of medical service], a medically necessary abortion is a mandatory covered service." Id.

needy' are those who receive financial aid from certain specified federal aid programs; the 'medically needy' are those who do not qualify for some forms of federal assistance but who nonetheless lack the resources to obtain adequate medical care." Id. Arkansas and Nebraska provide services to both the categorically needy and the medically needy.

Between 1973 and 1976 Medicaid covered medically necessary abortions. However, in 1976, Congress enacted the Hyde Amendment "prohibit[ing] federal reimbursements for abortions except for the categories that Congress declared medically necessary, which at that time included only cases where the 'life of the mother would be endangered if the fetus were carried to term.' " Id. at 617 (citation omitted) (emphasis added). "The [Hyde] Amendment does not restrict participating states' use of state funds to provide abortions through Medicaid or any other state program, as the states remain free to fund more abortions than those for which federal funds were made available under the Hyde Amendment." Id. (citation and footnote omitted) (emphasis added). "A subsequent version of the [Hyde] Amendment expanded the [federal] funding to include victims of rape or incest and 'instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians.' " Id. (citation omitted). "The fiscal year 1980 Hyde Amendment deleted the category regarding 'physical health damage' but still included the category for victims of rape or incest." Id. However, "[f]rom fiscal years 1982 to 1993 the Hyde Amendment limited medically necessary and thus federally funded abortions to cases where the mother's life was in danger." Id.

Then, in late 1993, Congress expanded the Hyde Amendment to include federal funding for abortions in cases of rape or incest as well as to save the life of the mother. The fiscal year 1994 Hyde Amendment provides that "[n]one 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." The Departments of Labor, Health & Human Services, & Education, & Related Agencies Appropriations Act of 1994, Sec. 509, Pub.L. No. 103-112, 107 Stat. 1082, 1113 (1993). In December 1993 the federal government advised state Medicaid directors that, effective October 1, 1993, state Medicaid plans must cover abortions for victims of rape or incest in addition to abortions necessary to save the life of the mother. Since at least 1982, pursuant to a state regulation, the Nebraska Medicaid plan has covered "abortions only when the life of the mother would be endangered if the fetus were carried to term." Neb. Dep't Pub. Welfare Prog. Manual Sec. 18-004.08. In 1988 the people of the state of Arkansas amended the state constitution to restrict state funding of abortions.

                Amendment 68 provides in part that "[n]o public funds will be used to pay for any abortion, except to save the mother's life."   The Arkansas Medicaid plan reflects the state constitutional amendment.  Arkansas and Nebraska each refused to amend or revise its state Medicaid plan to cover abortions for victims of rape or incest
                

THE ARKANSAS CASE--Little Rock Family Planning Service v. Dalton

In the Arkansas case the plaintiffs are Little Rock Family Planning Services, a Medicaid provider, which operates a women's health care facility providing reproductive health care services, including abortions, to Medicaid-eligible women in Arkansas, its medical director, Dr. Curtis Stover, a licensed physician who provides medical services, including abortions, to Medicaid-eligible women, some of whom are pregnant as a result of rape or incest, and Fayetteville Women's Clinic and Dr. Tom Tvedten, who provide services similar to those provided by Little Rock Family Planning Services and Dr. Stover. Little Rock Family Planning Services and Dr. Stover sued on their own behalf and on behalf of the Medicaid-eligible women for whom they provide health care services. The defendants are Thomas Dalton, the director of the state department of human services, Kenny Whitlock, the deputy director of the division of the state department of human services that implements the state Medicaid program, and Jim Guy Tucker, the governor of the state of Arkansas, each...