Preterm, Inc. v. Dukakis

• Decision Date: 15 January 1979
• Docket Number: Nos. 78-1324,s. 78-1324
• Citation: 591 F.2d 121
• Parties: PRETERM, INC., et al., Plaintiffs, Appellants, v. Michael S. DUKAKIS et al., Defendants, Appellees. PARENTS' AID SOCIETY, INC., et al., Plaintiffs, Appellants, v. Alexander E. SHARP II, Defendant, Appellant. PARENTS' AID SOCIETY, INC., et al., Plaintiffs, Appellants, v. Alexander E. SHARP II, Defendant, Appellee. to 78-1326.
• Court: U.S. Court of Appeals — First Circuit

Page 121

591 F.2d 121

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

PARENTS' AID SOCIETY, INC., et al., Plaintiffs, Appellants, v. Alexander E. SHARP II, Defendant, Appellant.

PARENTS' AID SOCIETY, INC., et al., Plaintiffs, Appellants, v. Alexander E. SHARP II, Defendant, Appellee.

Nos. 78-1324 to 78-1326.

United States Court of Appeals, First Circuit.

Argued Oct. 6, 1978.

Decided Jan. 15, 1979.

Nancy Gertner, Boston, Mass., with whom Silverglate, Shapiro & Gertner, Barbara Sard, Roxbury, and John Reinstein, Boston, Mass., were on brief, for Preterm, Inc., et al.

S. Stephen Rosenfeld, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Garrick F. Cole, Asst. Atty. Gen., Boston, Mass., were on brief, for Sharp, et al.

Joseph J. Balliro, Boston, Mass., with whom Joan C. Schmidt, Boston, Mass., was on brief, for Parents' Aid Society, Inc., et al.

Joseph J. Hurley and Nutter, McClennen & Fish, Boston, Mass., on brief, for William A. Lynch, M.D., et al., amici curiae.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

In this case we are called upon to assess the validity, in terms of compliance with the federal Medicaid Act, of Chapter 367, § 2, Item 4402-5000 of the Massachusetts Acts of 1978. Chapter 367 is an appropriations provision, limiting the expenditure of state funds for abortions to those abortions "which are necessary to prevent the death of the mother" and to those procedures "necessary for the proper treatment of the victims of forced rape or incest" if the incident is properly reported within thirty days.

At issue, as well, is the impact on the Medicaid Act and state plans thereunder of the Hyde Amendment, Section 101 of Pub.L. 95-205; 91 Stat. 1460 (Dec. 9, 1977), first enacted as a rider to the FY 1977 Health, Education and Welfare appropriations bill. The Hyde Amendment for FY 1978 prohibits federal funding for abortions except "where the life of the mother would be endangered", when the woman is a "victim of rape or incest" and reports the incident "promptly" and in 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." ¹

The district court found that Chapter 367 violated specific provisions and the basic thrust of the Medicaid Act by failing to provide for abortions that were "medically necessary". However, because the court considered it "anomalous" to impose upon the state the obligation to fund "medically necessary" abortions for which the Hyde Amendment had prohibited federal funding, its preliminary injunction modified Chapter 367 to require state payment for at least those abortions funded under the Hyde Amendment. The court did not reach the constitutional arguments of the parties. See Hagans v. Levine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).

Preterm, Inc., et al., plaintiffs below, then sought an expanded injunction pending appeal of the district court's preliminary injunction. ² We granted that relief and modified the district court's injunction to require the Commonwealth of Massachusetts to provide funding for abortions to "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". Subsequently the district court ordered consolidation of the preliminary injunction with the merits and entered its preliminary injunction as a final order. All parties have appealed, and it is the district court's final order that is before us on review. We turn first to the question whether Chapter 367 violates the requirements of the Medicaid Act by providing for abortions, in circumstances other than pregnancy resulting from forced rape or incest, only when the abortion is "necessary to prevent the death of the mother".

I. The Requirements of the Medicaid Act

The Medicaid Act, Title XIX of the Social Security Act of 1965, operates to enable participating states, through the use of federal funds, to provide medical services to welfare recipients (the "categorically needy") and if the state chooses, to other needy recipients (the "medically needy"). See Beal v. Doe, 432 U.S. 438, 440 n.1, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977); 42 U.S.C. § 1396a(a)(10)(A), (C). Although a state's participation in Medicaid is voluntary, if it chooses to adopt a plan it must do so consonant with the requirements imposed by the Medicaid Act. See Beal v. Doe, supra, 432 U.S. at 441, 97 S.Ct. 2366; White v. Beal, 555 F.2d 1146, 1149 (3d Cir. 1977); Rush v. Parham, 440 F.Supp. 383, 385 (N.D.Ga.1977).

The plaintiffs below argue, and the district court found, that abortions, when "medically necessary" as determined by a physician are within the category of services which a state must provide. The state, on the other hand, contends that participating states are afforded great latitude in deciding which services will be furnished under their plans, and maintains that the Act nowhere requires a state to provide all "medically necessary" services. The disagreement between the parties is thus a fundamental one, and one which our study of the statute has not easily resolved.

Our analysis begins with the opening section of the Act, which both authorizes an appropriation and sets forth a general statement of purpose:

"42 U.S.C. § 1396. Appropriation

For the purpose of enabling each State, As far as practicable under the conditions of such State, to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled Individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation . . ., there is hereby authorized to be appropriated . . .." (emphasis added).

The district court and other courts which have found a requirement within the Medicaid Act that states provide all "medically necessary" services have relied heavily on this section. See, e. g., Rush v. Parham, supra, 440 F.Supp. at 389. It does not seem, however, that the words "necessary medical services" are properly read as a substantive requirement imposed on the states. Instead, this section merely specifies for whose benefit federal funds are to be appropriated those "individuals, whose income and resources are insufficient to meet the costs of necessary medical services." 42 U.S.C. § 1396. See also 42 U.S.C. § 1396a(a)(10)(C). Furthermore, the section apparently contemplates some flexibility in the Act's demands on each state, stating that its purpose is to enable a state to furnish medical assistance "as far as practicable under the conditions in such State."

Our view finds support from the structural composition of the Act. Section 1396a is the provision which details the required contents of a state plan for medical assistance. Among the 37 items listed, we find no mandate that all "medically necessary" services be provided. We therefore hesitate to draw the words "necessary medical services" from their context an appropriations section and in effect transport them into a contents section requirement.

Although we are unable to discover a statutory requirement that states provide medically necessary services, we do find guidance within the statute, albeit less explicit, for deciding this case. Section 1396a requires that a state plan for medical assistance provide five general categories of medical services to the categorically needy, enumerated in § 1396d(a): (1) inpatient hospital services, (2) outpatient hospital services, (3) other laboratory and x-ray services, (4) skilled nursing facilities, screening and treatment for persons under the age of 21 and family planning services and supplies, and (5) physicians' services. ³ In Beal v. Doe, supra, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464, the Supreme Court, deciding whether a state plan which denied funds for abortions unless they were certified by a physician as "medically necessary" was violative of the Medicaid Act, stated that: "Title XIX (Medicaid) does not require States to provide funding for all medical treatment falling within the five general categories". But, "it does require that State medicaid plans 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) (1970 ed., Supp. V)." Id. at 440-41, 97 S.Ct. at 2369. The Court further emphasized that the Act "confers broad discretion on the 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.", Id. at 444, 97 S.Ct. at 2371, and concluded that the state's "refusal to extend Medicaid coverage to nontherapeutic abortions is not inconsistent with Title XIX." Id. at 447, 97 S.Ct. at 2372.

The Court's opinion contains a dictum relied on by the district court: "(A) lthough serious statutory questions might be presented if a state medicaid plan excluded necessary medical treatment from its coverage, it is hardly inconsistent with the objectives of the Act for a State to refuse to fund Unnecessary though perhaps desirable medical services." Id. at 444-45, 97 S.Ct. at 2371 (emphasis added to introductory clause). This language is indeed relevant to the issue at hand the validity of a state plan which allows payment for abortion services in other than cases of rape or incest only when "necessary to prevent the death of the mother"; but we do not believe that we should read this dictum as signalling a flat rule that all services within the five general categories deemed "medically necessary" by a patient's physician must be provided by the state plan.

Such a reading, permitting the most varied content to the words "necessary medical services", the...