Planned Parenthood Affiliates of Ohio v. Rhodes

Decision Date12 September 1979
Docket NumberNo C-2-79-687.,C-2-79-687.
Citation477 F. Supp. 529
PartiesPLANNED PARENTHOOD AFFILIATES OF OHIO et al., Plaintiffs, v. James A. RHODES et al., Defendants.
CourtU.S. District Court — Southern District of Ohio


Louis A. Jacobs, Columbus, Ohio, Janet Benshoof, New York City, Bruce A. Campbell, Columbus, Ohio, for plaintiffs.

James R. Rishel, Thomas W. Hess, Thomas V. Martin, Columbus, Ohio, for defendants.


KINNEARY, District Judge.

This matter is before the Court on the motion of the plaintiffs for a preliminary injunction. The plaintiffs in this action are six Planned Parenthood agencies, a rape victim counseling service, two family planning agencies, a doctor and a counselor. They seek an order preliminarily enjoining the governor, auditor, treasurer, and director of the Department of Public Welfare of the State of Ohio from enforcing or otherwise implementing Section 210 of House Bill 204, the 1979-80 biennial budget for the State of Ohio hereinafter the Meshel amendment which provides as follows:

SECTION 210. No governmental funds, from whatever source and whether held in trust or otherwise by the government, and no federal funds passing through the state treasury or any state agency, shall be utilized by any agency of the state or of any political subdivision of the state, and no governmental assistance shall be granted for or to any person, for performing, promoting, or assisting another in the performance of an abortion unless one of the following applies:
(A) Two physicians have signed written statements indicating that abortion is medically necessary to prevent the death of the mother; or
(B) The pregnancy is the result of rape as defined in section 2907.02 of the Revised Code, and the incident is reported by the victim to a valid law enforcement agency or public health agency within forty-eight hours after the incident occurs, unless the victim is physically unable to report the rape, in which case the report shall be made within forty-eight hours after the victim becomes physically able to report the rape and such a report is accompanied by a signed statement by two physicians certifying that, in their professional opinion, the victim was not previously physically able to report the rape; or
(C) The pregnancy is the result of incest, but only if the incident and relative are reported by the victim to a valid law enforcement agency or public health agency prior to the abortion.

Complaint, Ex. A emphasis added.

The plaintiffs assert that the Meshel amendment and the underlying Ohio State Plan which it superseded1 are unconstitutional on a number of grounds. For purposes of the motion for a preliminary injunction, however, the plaintiffs rely only on the Supremacy Clause, U.S.Const., art. VI, cl. 2. They maintain that Ohio's refusal to pay for less than all medically necessary abortions performed on qualified Medicaid recipients and the refusal to pay for counseling in connection with such abortions violates various titles of the federal Social Security Act, 42 U.S.C. §§ 601, et seq. (Title IV); 42 U.S.C. §§ 701, et seq. (Title V); 42 U.S.C. §§ 1396, et seq. (Title XIX); 42 U.S.C. §§ 1397, et seq. (Title XX); and the Public Health Service Act, 42 U.S.C. §§ 300, et seq. (Title X).

By agreement of the parties, this matter has been submitted on the affidavits supplied by the plaintiff, the affidavit supplied by the defendant and the oral argument and brief of the parties.2 Pursuant to Rule 52, F.R.C.P., the Court makes the following findings of fact and conclusions of law.

Findings of Fact3

The Meshel amendment, quoted above, became effective on August 1, 1979 as part of the 1979-80 biennial budget for the State of Ohio. It was an amendment or "rider" to an appropriations bill which was passed without debate or public hearing. It substantially limits the expenditure of any state funds for the performance of abortion. It also largely prohibits the use of state funds for the promotion of abortions or assistance in the performance of abortions.

The underlying Ohio State Plan (M.A.L. 71) also limits the use of funds for abortion. M.A.L. 71 was issued by the defendant director of the Ohio Department of Public Welfare in January of 1978.

The plaintiff Planned Parenthood Affiliates of Ohio, Inc. is a clearinghouse for medical and legal information for various local Planned Parenthood agencies. The five local Planned Parenthood agencies all supply family planning services including counseling and referrals. Only one of the Planned Parenthood agencies provides abortion services as well.

The plaintiff Cleveland Rape Crisis Center, Inc. provides counseling and referrals for rape victims, but does not perform abortions. Northwest Women's Center, Inc. of Columbus, Ohio provides counseling and performs abortions, as does plaintiff Preterm Cleveland, Inc.

The plaintiff Lawrence Levy is a licensed physician who provides to his patients all medically necessary gynecological and obstetrical services. The plaintiff Susan Momeyer is the Executive Director of the plaintiff Planned Parenthood Association of Butler County, Inc. where she has directed all pregnancy counseling since 1975.

The affidavits and attachments submitted by the plaintiffs establish that, since the passage of the federal Hyde amendment and the subsequent institution of the Ohio State Plan, the number of publicly funded abortions in Ohio has been drastically reduced. This has been so even though the Ohio State Plan permits abortion reimbursement when two doctors certify that "severe and long-lasting health damage" may result. The Meshel amendment is far more restrictive and the unchallenged expert affidavits of the plaintiffs uniformly predict that the number of publicly funded abortions in Ohio will inevitably fall virtually to zero.

There are many medical conditions falling between those which result in life-saving and purely elective abortions. Natural limitations on the present state of the art of medicine prevent, in all but the extreme case, a medically valid prediction of death. The affidavits make clear that the medical profession would not approve as "medically necessary" an abortion desired to avoid "health problems associated with normal pregnancy (such as nausea, water retention, sleeplessness, lower back problems, contracting of organs . . .)," Dr. Sanders' Affidavit, ¶ 7. Nor would the common desire to avoid social stigma or the inconvenience of child rearing justify an abortion as "medically necessary."

Nonetheless, there are numerous medical conditions which might make a non-life-saving abortion medically necessary. Pregnancy can often result in serious physical health damage to the very young and the very old. Other conditions such as cancer, drug addiction, epilepsy or genetic afflictions may create a grave physical risk to the pregnant woman.

Mental health problems may exist as well. Physicians considering various factors such as age, family size, income and prior psychological history may conclude that an abortion is medically necessary to preserve the mental health of the mother.

The affidavits further indicate that the unavailability of funding has caused many poor women to forego medically necessary abortions. Some carry the pregnancy to term, risking severe and potentially permanent injury to their physical or mental health. Others attempt to self-abort, to obtain illegal abortions, or to finance abortions with moneys otherwise necessary for subsistence.

Rape and incest victims, in the opinion of the expert affidavits, will almost never meet the stringent requirements of the Meshel amendment. As a result many will carry their resulting pregnancies to term.

The ultimate conclusion of the experts in this case is that the resulting decrease in the number of poor women who obtain medically necessary abortions which are safe and legal will cause an increase in maternal mortality among this group.


This Court is aware, of course, that the issue of abortion is one of the most sharply and emotionally debated questions of our time. The making of non-constitutional value judgments, however, is not the proper function of the life-tenured members of the federal judiciary. The issues in this case are narrowly drawn, and simply involve a comparison of the requirements of federal and state statutes. This inquiry is made, and this decision is rendered in the firm belief that nothing could be less relevant to these legal issues than the Court's personal view of the sanctity of fetal life or the propriety of governmental intrusion in the most private of a woman's decisions.

In determining whether a preliminary injunction should issue to enjoin the enforcement or implementation of the Meshel amendment and M.A.L. 71, the Court must decide four issues in the plaintiffs' favor:

(a) Whether the plaintiff has shown a strong or substantial likelihood of success on the merits.
(b) Whether the plaintiff has shown irreparable injury.
(c) Whether the issuance of a preliminary injunction would cause substantial harm to others.
(d) Whether the public interest would be served by issuing a preliminary injunction.

Mason County Medical Ass'n. v. Knebel, 563 F.2d 256, 261 (CA 6, 1977).

I. Probability of Success on the Merits

The plaintiffs attack Ohio's restrictions on abortion funding (for purposes of this motion) on two grounds. First, it is alleged that the refusal to reimburse the performance of medically necessary abortions for the "categorically needy" violates Title XIX of the Social Security Act (Medicaid). Second, it is alleged that the prohibition of "promoting" or "assisting" abortions in the Meshel amendment violates Titles IV, V, XIX and XX of the Social Security Act and Title X of the Public Health Service Act.

A. Jurisdiction. The plaintiffs cannot succeed on these claims if the Court does not have jurisdiction to hear them. The defendants challenge the Court's jurisdiction,...

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    ...Preterm, Inc. v. Dukakis, 591 F.2d 121, 134-38 (1st Cir. 1979) (Bownes, J., dissenting); Planned Parenthood Affiliates v. Rhodes, 477 F.Supp. 529, 537-39 (S.D.Ohio 1979) (Kinneary, J., presiding); Doe v. Busbee, 471 F.Supp. 1326, 1332-34 (N.D.Ga.1979) (Murphy, J., Furthermore, I am of the o......
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    ...XIX, and it made no finding or conclusion respecting the constitutionality of the amendment. Similarly, Planned Parenthood Affiliates of Ohio v. Rhodes, S.D.Ohio, 1979, 477 F.Supp. 529, invalidated under Title XIX an Ohio statute forbidding the use of state funds, or federal "pass-through" ......
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