Moe v. Secretary of Administration and Finance

• Decision Date: 18 February 1981
• Citation: 382 Mass. 629,417 N.E.2d 387
• Parties: Mary MOE et al. 1 v. SECRETARY OF ADMINISTRATION AND FINANCE et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 387

417 N.E.2d 387

382 Mass. 629

Mary MOE et al. ¹ v. SECRETARY OF ADMINISTRATION AND FINANCE et al. ²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 8, 1980.

Decided Feb. 18, 1981.

Nancy Gertner, Boston (John Reinstein, Marjorie Heins, and Katherine Triantafillou, Boston, with her), for plaintiffs.

Thomas R. Kiley, Asst. Atty. Gen. (Garrick F. Cole, Asst. Atty. Gen., with him), for defendants.

Jeanne Barkin, Boston, for the Preterm, Inc., amicus curiae, submitted a brief.

Robert A. Destro, Cleveland, Ohio, for the Catholic League for Religious and Civil Rights, amicus curiae, submitted a brief.

Carolynn Fischel & Rita J. DiGiovanni, Boston, for various religious professors & others, amici curiae, submitted a brief.

John H. Henn, Boston, Eve W. Paul and Dara Klassel, New York City, for Planned Parenthood Federation of America, Inc. and others, amici curiae, submitted a brief.

Kimberly Homan and Joyce Perkit Zalkind, Boston, for Boston Women's Health Book Collective, Inc. and others, amici curiae, submitted a brief.

Charles Kindregan, Boston, Dennis J. Horan, Victor G. Rosenblum, John D. Gorby, Patrick A. Trueman and Thomas J. Marzen, Chicago, Ill., for certain Massachusetts physicians, amici curiae, submitted a brief.

Henry C. Luthin, Newton, for certain members of the General Court, and for Massachusetts Citizens for Life, Inc., amici curiae, submitted briefs.

Terry Jean Seligmann, Margot Botsford, Boston and Susanne C. Howard, Cambridge, for Women's Bar Association of Massachusetts

and others, amici curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

QUIRICO, Justice.

In this class action, the plaintiffs seek to have declared invalid and to enjoin the enforcement of certain statutory provisions restricting the funding of abortions under the Massachusetts Medical Assistance Program (Medicaid). The defendants are all officials in the executive branch of the government of the Commonwealth. The challenged enactments include G.L. c. 29, § 20B, inserted by St.1979, c. 268, § 1, and various appropriation measures including St.1979, c. 393, § 2, Item 4402-5000, and St.1980, c. 329, § 2, Item 4402-5000. ³ These statutes, which by reason of their original legislative sponsors are commonly referred to as the Doyle-Flynn Amendments, would prohibit the payment of State Medicaid funds for abortions except as necessary to avert the death of the mother. This restriction, it is claimed, violates two provisions of the Massachusetts Declaration of Rights, namely, the provision for equal protection of the laws, art. 1, as amended by art. 106 (Equal Rights Amendment), and art. 10 as it relates to the right to due process of law. ⁴ For reasons which follow, we decide in favor of the plaintiffs.

I. The background of this action. The Medicaid program is one of the several joint Federal-State programs of assistance to the indigent included in the Social Security Act, 42 U.S.C. § 301 et seq. (1976 & Supp. III 1979) (Act). By enacting Title XIX of the Act, 42 U.S.C. §§ 1396-1396k (1976 & Supp. III 1979), Congress in 1965 authorized the expenditure of Federal funds to enable each State to furnish medical assistance to certain categories of needy persons. Participation is at the option of each State, and the States are free within broad parameters to determine the scope and extent of the assistance offered. Certain minimum requirements must be met, however, to qualify for Federal aid. A State must furnish five types of services ⁵ to the "categorically needy." ⁶ A State may also furnish assistance subject to certain restrictions, to persons who are not categorically needy, but who nonetheless have insufficient income and resources to meet the costs of necessary medical and remedial care and services. See 42 U.S.C. § 1396a(a)(10)(C). ⁷ The Federal legislation does not specifically enumerate the services which the States must offer within the mandated categories of care and services. It does, however, require participating States to establish reasonable standards governing the extent of such services consistent with the statutory purposes. See Beal v. Doe, 432 U.S. 438, 441, 97 S.Ct. 2366, 2369, 53 L.Ed.2d 464 (1977), citing 42 U.S.C. § 1396a(a)(17). It is settled as a matter of Federal law that Medicaid-participant States remain free to subsidize at their own expense abortions beyond those for which Federal reimbursement is available. See Harris v. McRae, 448 U.S. 297, 311 n.16, 100 S.Ct. 2671, 2685 n.16, 65 L.Ed.2d 784 (1980). Thus, the relief sought here would not jeopardize Federal reimbursement for other services provided by the Massachusetts Medicaid program.

Massachusetts joined the national Medical Assistance Program in 1966, by Executive Order of the Governor. The Legislature established the Massachusetts Medical Assistance Program in 1969; the program is codified in G.L. c. 118E, §§ 1-27. The major responsibility for policy making and administration is lodged in the Department of Public Welfare. G.L. c. 118E, §§ 2, 4. The current administrative and billing regulations are contained in 106 Code Mass.Regs. 450.000 et seq., as amended, 185 Mass.Reg. 9 (November 23, 1979).

The Massachusetts program is broad and comprehensive. For eight categories of recipients, the program affords twenty-nine types of services; a more limited range of services, numbering ten, is available under the State's General Relief Medical Assistance Program. See 106 Code Mass.Regs. 450.105 and 107. These services are all provided subject to the standard of "medical necessity" set forth at 106 Code Mass.Regs. 450.204, as follows: "A provider must furnish or prescribe medical services to the recipient only when, and to the extent, medically necessary, unless otherwise specified in Department regulations. For the purposes of this Chapter 450.000, a service is 'medically necessary' if it is (1) reasonably calculated to prevent, diagnose, prevent the worsening of, alleviate, correct, or cure conditions in the recipient that endanger life, cause suffering or pain, cause physical deformity or malfunction, threaten to cause or to aggravate a handicap, or result in illness or infirmity; and (2) there is no other equally effective course of treatment available or suitable for the recipient requesting the service that is more conservative or substantially less costly. Medical services shall be of a quality that meets professionally recognized standards of health care, and shall be substantiated by records including evidence of such medical necessity and quality. Those records shall be made available to the Department upon request. (See 42 U.S.C. § 1396a(a)(30), and 42 CFR 440.230(C)(2) and 440.260.)"

An understanding of the plaintiffs' objectives in this case requires some knowledge of the history of Medicaid funding for abortion in Massachusetts. Following the decision of the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the State issued regulations establishing abortion coverage coextensive with the limits on State regulation set in that decision. ⁸

The first Federal restrictions on Medicaid funding for abortions came in 1976. In that year, Congress enacted the so-called "Hyde Amendment," a rider to the Labor-HEW Appropriations Act limiting Federal reimbursement of abortion services to cases in which "the life of the mother would be endangered if the fetus were carried to term." Pub.L.No. 94-439, § 209, 90 Stat. 1434 (1976). Similar restrictions were passed by Congress in 1977, 1978, and 1979. ⁹ Notwithstanding the elimination of Federal reimbursement for all but this limited category of abortions, Massachusetts continued until 1978 to fund abortion services under its Medicaid program as before.

On July 10, 1978, the General Court first acted to limit State Medicaid expenditures for abortion. The restriction was in a form similar to the Hyde Amendment; a rider to the State's Medicaid appropriations for fiscal year 1979, St.1978, c. 367, § 2, Item 4402-5000, prohibited State reimbursement for abortions except when necessary to prevent the death of the pregnant woman or in certain cases of rape or incest. Chapter 367 was immediately challenged in an action filed in the United States District Court for the District of Massachusetts. The plaintiffs alleged that the State's failure to provide for "medically necessary" abortions violated Title XIX and the United States Constitution. That court, while agreeing that c. 367, § 2, Item 4402-5000, violated the requirements of Title XIX, declined to order the State to pay for abortions other than those which would qualify for Federal reimbursement under the Hyde Amendment. Jaffe v. Sharp, 463 F.Supp. 222 (D.Mass.1978). The plaintiffs appealed, and on August 7, 1978, an order was entered by the United States Court of Appeals for the First Circuit requiring the Commonwealth to fund all medically necessary abortions pending disposition of the appeal. On January 15, 1979, the First Circuit affirmed the District Court's statutory ruling, holding that the Hyde Amendment had amended Title XIX and that the State was thus not statutorily required to fund abortions beyond those eligible for Federal reimbursement. Preterm, Inc. v. Dukakis, 591 F.2d 121 (1st Cir. 1979). The Court of Appeals remanded the case to the District Court for consideration of the plaintiffs' constitutional claims, but continued its order enjoining the enforcement of the funding restriction then in effect, pending a ruling on the plaintiffs' petition for a writ of certiorari. Certiorari was denied on May 14, 1979, sub nom. Preterm, Inc. v. King, 441 U.S. 952, 99 S.Ct. 2182, 60 L.Ed.2d 1057 (1979). A petition for rehearing was denied on October 1, 1979, 444 U.S. 888, 100 S.Ct. 187, 62 L.Ed.2d 122 (1979).

Between October 1, 1979, and January 15, 1980, although not bound by any court order, the...