Planned Parenthood of Missoula Inc. v. Blouke, CV-94-028-GF.

• Decision Date: 19 July 1994
• Docket Number: No. CV-94-028-GF.,CV-94-028-GF.
• Citation: 858 F. Supp. 137
• Parties: PLANNED PARENTHOOD OF MISSOULA INC. and Intermountain Planned Parenthood, Inc., on behalf of themselves and the Medicaid-eligible women of the State of Montana to whom they provide health care, Plaintiffs, v. Peter S. BLOUKE, Director of the Montana Department of Social and Rehabilitation Services, in his official capacity, and Marc F. Racicot, Governor of the State of Montana, in his official capacity, Defendants.
• Court: U.S. District Court — District of Montana

858 F. Supp. 137

PLANNED PARENTHOOD OF MISSOULA INC. and Intermountain Planned Parenthood, Inc., on behalf of themselves and the Medicaid-eligible women of the State of Montana to whom they provide health care, Plaintiffs, v. Peter S. BLOUKE, Director of the Montana Department of Social and Rehabilitation Services, in his official capacity, and Marc F. Racicot, Governor of the State of Montana, in his official capacity, Defendants.

No. CV-94-028-GF.

United States District Court, D. Montana, Great Falls Division.

July 19, 1994.

Joel E. Guthals, Wright, Tolliver & Guthals, PC, Billings, MT, Robert J. Phillips, Phillips & Williams, Missoula, MT, Roger K. Evans, Planned Parenthood Federation of America, New York City, for plaintiffs.

Russell E. Cater, Montana Dept. of Social & Rehabilitation Services, Helena, MT, for defendants.

MEMORANDUM AND ORDER

HATFIELD, Chief Judge.

The issue presented in this action for declaratory and injunctive relief is whether the State of Montana, as a participant in the Medicaid program established under Title XIX of the Social Security Act (42 U.S.C. §§ 1396 et seq.), must fund the costs associated with non-therapeutic abortions terminating pregnancies resulting from an act of rape or incest.¹

I.

Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 et seq., establishes the Medicaid program; a program under which states may receive federal financial assistance for the purpose of providing medical assistance to needy persons. "Participation in the Medicaid program is entirely optional but once a State elects to participate, it must comply with the requirements of Title XIX." Harris v. McRae, 448 U.S. 297, 302, 100 S.Ct. 2671, 2680, 65 L.Ed.2d 784 (1980). Title XIX requires participating States to provide financial assistance to qualified individuals in five general categories of medical treatment. 42 U.S.C. §§ 1396a(a)(13)(B), 1396d(a)(1)-(5).² Although a participating State need not "provide funding for all medical treatment falling within the five general categories, Title XIX does require that a State Medicaid plan establish `reasonable standards ... for determining ... the extent of medical assistance under the plan which ... are consistent with the objectives of Title XIX.' 42 U.S.C. § 1396a(a)(17)." Beal v. Doe, 432 U.S. 438, 441, 97 S.Ct. 2366, 2369, 53 L.Ed.2d 464 (1977).

Since 1976, Congress has chosen to limit the use of federal funds to reimburse the cost of abortions under the Medicaid program except under certain specified circumstances, through an amendment to the annual appropriations bill for the Department of Health and Human Services³ or by a joint resolution. The congressional enactments embodying these funding restrictions are commonly referred to as the "Hyde Amendments."⁴ The most recent version of this spending restriction is found in section 509 of the Departments of Labor, Health and Human Services, and Education, and Related Agencies' Appropriations Act, 1993, 107 Stat. 1113, which provides as follows:

None 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 plaintiffs⁵ (collectively referred to as Planned Parenthood) contend the 1993 Hyde Amendment effected a substantive modification of Title XIX; a modification that mandates participating States, including Montana, to provide funding for abortions terminating pregnancies resulting from an act of rape or incest. The plaintiffs filed the present action seeking a declaration that Montana Administrative Rule 46.12.2002(e), which effectively prohibits Medicaid payment for abortion related services unless the abortion was necessary to protect the life of the mother, contravenes the mandate of Title XIX, as modified by the 1993 Hyde Amendment, and is, accordingly, invalid under the Supremacy Clause, Article VI, Clause 2, of the Federal Constitution.⁶ The plaintiffs bring the action under 42 U.S.C. § 1983, invoking the federal question jurisdiction of this court. 28 U.S.C. § 1331.

The State of Montana, through Mark F. Racicot, Governor of the State of Montana, and Peter S. Blouke, Director of the Montana Department of Social and Rehabilitation Services, resist the plaintiffs' suggestion that the 1993 Hyde Amendment imposes a substantive obligation upon the State of Montana to provide Medicaid funding for abortions terminating pregnancies resulting from an act of rape or incest. Rather than mandating participating states to fund these abortions, the 1993 Hyde Amendment, in the opinion of the State of Montana, was merely intended to expand federal funding of abortion services to include abortions for victims of rape and incest. The 1993 Hyde Amendment, the State argues, was not intended to preempt state law, but was intended as a grant of authority to a participating state to use, in a manner it deemed appropriate, federal monies to fund abortion services related to the termination of a pregnancy resulting from an act of rape or incest. The State of Montana relies upon the language of 42 U.S.C. § 1396a(a)(17), which confers "broad discretion on the participating states to adopt standards for determining the extent of medical assistance, requiring only that such standards be `reasonable' and `consistent with the objectives' of the Act." Beal v. Doe, 432 U.S. 438, 444, 97 S.Ct. 2366, 2371, 53 L.Ed.2d 464 (1977).

II.

Title XIX establishes a system of "cooperative federalism" whereby the "Federal Government provides financial assistance to participating States to aid them in furnishing health care to needy persons". Harris v. McRae, 448 U.S. at 308, 100 S.Ct. at 2683. In return, a "State agrees to establish a medicaid plan that satisfies the requirements of Title XIX, which include several mandatory categories of health services...." Id.

The Supreme Court has, of course, had occasion to address numerous issues relating to a participating State's obligation to fund abortions. For instance, in Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977), the Court addressed the following question: "Whether Title XIX requires a participating State to fund under its Medicaid program the cost of all abortions that are permissible under State law." 432 U.S. at 443-44, 97 S.Ct. at 2370 (emphasis in original). Emphasizing the question presented was one of statutory construction, the Court held that the decision of a participating State not to extend Medicaid coverage to non-therapeutic abortions is not inconsistent with Title XIX. 432 U.S. at 447, 97 S.Ct. at 2372. The Court hastened to note, however, that "the Federal statute leaves a State free to provide such coverage if it so desires." 432 U.S. at 447, 97 S.Ct. at 2372.⁷

Subsequently, in Harris v. McRae, the Court held, "Title XIX does not obligate a participating State to pay for those medical services for which federal reimbursement is unavailable." 448 U.S. at 309, 100 S.Ct. at 2684. Accordingly, "Title XIX does not require a participating State to pay for those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment." 448 U.S. at 310-311, 100 S.Ct. at 2685.

The Court in Harris v. McRae did not inquire whether the Hyde Amendments are properly construed as effecting a substantive amendment to Title XIX. 448 U.S. at 310, n. 14, 100 S.Ct. at 2684, n. 14. Rather, in reaching its conclusion, the Court recognized that "Congress has always assumed that a participating State would not be required to fund medically necessary abortions once federal funding was withdrawn pursuant to the Hyde Amendment." 448 U.S. at 310, 100 S.Ct. at 2684-85.

The issue presented in this case is somewhat the inverse of the issues presented in Harris v. McRae and Beal v. Doe, being directed to the issue of whether a State, as a condition of participation in the Medicaid program, must fund any abortion for which federal reimbursement is available. The issue is one of statutory construction and requires the court to first decide whether it must make inquiry into the question left open by the Court in Harris, i.e., whether the Hyde Amendment is properly construed as substantively altering the obligations of the participating States under Title XIX by requiring those States to fund abortions terminating pregnancies resulting from an act of rape or incest.

In seeking to convince the court that the 1993 Hyde Amendment constitutes a substantive amendment to Title XIX, the plaintiffs direct the court's attention to the decision of the Third Circuit in Roe v. Casey, 623 F.2d 829 (3rd Cir.1980), where the court held that the Hyde Amendment in effect for the fiscal year 1980 constituted a substantive modification of Title XIX.⁸ Ironically enough, the substantive change recognized by the court as having been effected by the Hyde Amendment, operated to reduce the participating States' substantive obligations to fund abortions to only those abortions specified in the Hyde Amendment. 623 F.2d at 834-836. In explanation of its holding, the court observed that "Title XIX, as modified by the Hyde Amendment requires the participating States to fund abortions in two categories: where the mother is endangered and where the pregnancy was the result of rape or incest." 623 F.2d at 836.⁹ In sum, the court in Casey viewed the Hyde Amendment as not merely a limitation upon the use of federal funds, but as a substantive modification of Title XIX that required participating States to fund abortions in the categories expressly identified in the text of the amendment itself. 623 F.2d at 836-837.¹⁰

The State of Montana asks the court to reject the rationale espoused in Casey. In the opinion of the State of Montana, the reasoning of Casey, as well as the circuit courts who have reached similar...