Reproductive Health Services v. Freeman

Decision Date09 January 1980
Docket NumberNos. 79-1275,79-1346,s. 79-1275
Citation614 F.2d 585
PartiesREPRODUCTIVE HEALTH SERVICES, Robert H. Duemler, M. D., Appellants, Michael Freiman, M. D. v. David R. FREEMAN, Director, State of Missouri Department of Social Services, and Phyllis J. Reser, Director, Department of Social Services, Division of Family Services, State of Missouri, Appellees. REPRODUCTIVE HEALTH SERVICES, Robert H. Duemler, M. D., Appellees, Michael Frieman, M. D. v. David R. FREEMAN, Director, State of Missouri Department of Social Services, and Phyllis J. Reser, Director, Department of Social Services, Division of Family Services, State of Missouri, Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

Frank Susman, Susman, Schermer Rimmel & Parker, St. Louis, Mo. (argued), Susman also made rebuttal and Leland M. Shurin, Horowitz & Shurin, Kansas City, Mo., on brief, for appellant, Reproductive Health Services, et al.

Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, Mo. (argued) and John Ashcroft, Atty. Gen., Jefferson City, Mo., on brief, for appellees, David R. Freeman, etc., et al.

David C. Drury, St. Louis, Mo., on brief, for amicus curiae, Lawyers for Life, Inc. and Missouri Citizens for Life.

Before ROSS and STEPHENSON, Circuit Judges, and McMANUS, * District Judge.

STEPHENSON, Circuit Judge.

At issue is the validity of a Missouri medical assistance regulation that makes public subsidy of abortions available only where a full-term pregnancy and childbirth would cause the death of the mother. The district court 1 held the regulation invalid on the basis that it conflicted with the Federal Medicaid Act (Title XIX). The court further held, however, that Missouri could legally refuse to subsidize abortion expenses for which it would receive no federal reimbursement under the Hyde Amendment. 2 The court then determined that Missouri's abortion subsidy scheme, when made consistent with Title XIX as affected by the Hyde Amendment, was constitutionally permissible. The court awarded attorneys' fees to plaintiffs. We affirm the result of the court's statutory holdings and its award of attorneys' fees, but reverse its holding that Missouri can constitutionally withhold subsidies for all non-Hyde Amendment abortions.

I. Background

Missouri receives federal aid under the Federal Medicaid Act, Title XIX of the Social Security Act of 1965. Missouri uses this federal aid, supplemented by its own funds, to help its needy meet the expenses of several medical services. Through its Division of Family Services, 3 Missouri subsidizes hospital care, out-patient care, physicians' services, and family planning. Mo.Ann.Stat. § 208.152 (Vernon Supp.1979). By regulation 13 C.S.R. § 40-81.100, however, Missouri has provided:

(1) The Division of Family Services shall expend federal and state funds for physician and hospital services for abortions only where an abortion is medically indicated.

(2) "Medically indicated" shall mean where the attending physician in the exercise of his best clinical, medical judgment believes a fullterm pregnancy and childbirth would cause cessation of the mother's life.

(3) The attending physician shall certify to the director, the Division of Family Services, his medical diagnosis that a fullterm pregnancy and childbirth would cause cessation of the mother's life.

(4) The attending physician shall submit to the director of the Division of Family Services the patient's written consent to the abortion; such consent shall contain an affirmative statement that her consent is informed and freely given and is not the result of coercion.

Plaintiffs (physicians and a medical clinic financially injured by the regulation) sought declaratory and injunctive relief on the ground that 13 C.S.R. § 40-81.100 was unconstitutional under the fourteenth amendment. 4 Plaintiff Duemler is a physician who performs abortions for patients who qualify for Missouri Medicaid assistance. Duemler is a part-time employee of plaintiff Reproductive Health Services (Reproductive), an organization that operates an out-patient, first-trimester abortion facility. During 1976, Missouri Medicaid subsidized 2400 abortions, 1824 of which were performed at facilities provided by Reproductive, 166 of which were personally performed by Duemler. Most of these abortions were, in Duemler's medical judgment, medically necessary in light of all the factors that he considers relevant to the patient's well-being: the patient's physical, emotional, psychological, and familial circumstances, and the patient's age. Duemler believes that virtually none of the abortions he performs could be justified as necessary to save the patient's life.

With the promulgation of 13 C.S.R. § 40-80.100, the number of Medicaid recipients seeking abortions at Reproductive declined from 177 to 67 per month. In the last year, counsel inform us, the number of Medicaid abortions in Missouri has fallen to zero.

Both parties below moved for summary judgment, with physicians submitting supporting affidavits. Although the affidavits reflect philosophical differences as to the desirability of abortion, 5 we perceive no genuine medical dispute as to the following. There are situations in which a physician considers an abortion medically indicated or medically necessary even though a full-term pregnancy will not cause death. 6 Abortion may be medically necessary where the patient has genital cancers, proliferative retinopathy (retina disease), or nephropathy (kidney disease). In any of these cases, an abortion might be necessary to preserve the patient's health, yet only in an extremely rare situation could a physician accurately state that the life of the pregnant patient would be endangered if the pregnancy were to continue to term. 7

II. Statutory Questions
A. The Effect of Title XIX

The district court, relying on Preterm, Inc. v. Dukakis, 591 F.2d 121 (1st Cir.), cert. denied, 441 U.S. 952, 99 S.Ct. 2182, 60 L.Ed.2d 1057 (1979), held that Missouri's policy of subsidizing only life-saving abortions was superseded by Title XIX, specifically 42 U.S.C. § 1396a(a)(17) and 42 C.F.R. § 440.230 (1978). This conclusion is consistent with our decision today in Hodgson v. Board of County Commissioners, 614 F.2d 601 (8th Cir. 1980), and we reject the bulk of defendants' arguments for the reasons expressed there.

Defendants raise three points, however, that were not raised in Hodgson. 8 First, defendants argue that we must reverse the district court because the issue of Title XIX's requirements was not raised by plaintiffs below. The complaint brought exclusively constitutional challenges to 13 C.S.R. § 40-80.100, and the only statutory issue the court requested the parties to brief concerned the effect of the Hyde Amendment, which proscribes federal spending for most abortions.

Nevertheless, we do not believe defendants were justified in believing that the constitutionality of 13 C.S.R. § 40-80.100 was the only issue before the court. In responding to the court's request to discuss the Hyde Amendment, the plaintiffs asserted the inconsistency of 13 C.S.R. § 40-80.100 with Title XIX. This occurred several months before the court's decision and defendants offer nothing to upset our presumption that they had adequate opportunity to respond. Cf. Fed.R.Civ.P. 15(b) (issues not pleaded but tried by implied consent are treated as if pleaded). Moreover, the constitutional challenge necessarily brought the interpretation of Title XIX into question. Interpreting Title XIX to require subsidy of medically necessary abortions a possibility explicitly raised by the Supreme Court one month before plaintiffs' complaint, Beal v. Doe, 432 U.S. 438, 444, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977) would have made a constitutional argument unnecessary to consider. See Ashwander v. TVA, 297 U.S. 288, 346-48, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (courts traditionally prefer statutory to constitutional grounds). We therefore think the defendants were placed on notice that Title XIX's scope was being drawn into question.

A more substantial contention is that the Congress which enacted Title XIX could not have intended to require states to subsidize abortions because at the time of Title XIX's enactment, in 1965, most states criminally proscribed all but life-saving abortions. 9 Defendants rely on dictum in Beal v. Doe, supra, which considered it "relevant" that:

(W)hen Congress passed Title XIX in 1965, nontherapeutic abortions were unlawful in most States. In view of the then-prevailing state law, the contention that Congress intended to require rather than permit participating States to fund nontherapeutic abortions requires far more convincing proof than (plaintiffs) have offered.

Id. at 447, 97 S.Ct. at 2372 (footnote omitted).

Although one federal district court has cited this language in Beal in support of defendants' proposition that Title XIX also permits a state to withhold subsidies for therapeutic abortions, D. R. v. Mitchell, 456 F.Supp. 609, 622 (D.Utah 1978) we do not find defendants' argument persuasive. First, Beal expressly did not contemplate Title XIX's requirements concerning therapeutic services. 432 U.S. at 444-45, 97 S.Ct. 2366. Second, Beal 's language, when applied to therapeutic services, leads to the absurd result that Title XIX permits a participating state to withhold subsidies for any service, no matter how medically necessary, that was not legally available in 1965. We doubt that the Supreme Court would tolerate, for example, a Title XIX state's refusal to subsidize a medically essential prescription drug on the ground that it was not approved until after 1965. Excluding a form of medical service not because of the recipient's medical need, but solely because it was once not legally available, would contravene Title XIX's express directive that standards governing the extent of medical assistance be reasonable. 42 U.S.C. §...

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