Right To Choose v. Byrne

• Decision Date: 10 January 1979
• Citation: 165 N.J.Super. 443,398 A.2d 587
• Parties: RIGHT TO CHOOSE, E. M., P. B., A. C., D. T., E. R. on Behalf of E., a minor, and D. C. on behalf of K., a minor, all on behalf of themselves and all others similarly situated, Edward S. Milner, Jr., M.D., New Jersey Welfare Rights Organization, and New Jersey Religious Coalition for Abortion Rights, Plaintiffs, v. Brendan T. BYRNE, Governor, State of New Jersey, John J. Degnan, Attorney General, State of New Jersey, Ann Klein, Commissioner, Department of Human Services, State of New Jersey, G. Thomas Riti, Director, Division of Human Services, State of New Jersey, Thomas M. Russo, Acting Director, Division of Medical Assistance and Health Services, Department of Human Services, State of New Jersey, and Joanne E. Finley, Commissioner, Department of Health, State of New Jersey, Defendants, and John T. Scully, M.D., F.A.C.S., as Guardian on behalf of those conceived but unborn herein and on behalf of others similarly situated, Dominic A. Introcaso, M.D., F.A.C.O.G., Anthony P. Despirito, M.D., F.A.A.P., the New Jersey Right To Life Committee, the Student Ad Hoc Committee Against the War in Vietnam and New Jersey Concerned Taxpayers, an association, Intervenors.
• Court: New Jersey Superior Court

Page 443

165 N.J.Super. 443

398 A.2d 587

RIGHT TO CHOOSE, E. M., P. B., A. C., D. T., E. R. on Behalf of E., a minor, and D. C. on behalf of K., a minor, all on behalf of themselves and all others similarly situated Edward S. Milner, Jr., M.D., New Jersey Welfare Rights Organization, and New Jersey Religious Coalition for Abortion Rights, Plaintiffs, v. Brendan T. BYRNE, Governor, State of New Jersey, John J Degnan, Attorney General, State of New Jersey, Ann Klein Commissioner, Department of Human Services, State of New Jersey, G. Thomas Riti, Director, Division of Human Services, State of New Jersey, Thomas M. Russo, Acting Director, Division of Medical Assistance and Health Services, Department of Human Services, State of New Jersey and Joanne E. Finley, Commissioner, Department of Health, State of New Jersey, Defendants, and John T. Scully, M.D., F.A.C.S., as Guardian on behalf of those conceived but unborn herein and on behalf of others similarly situated, Dominic A. Introcaso, M.D., F.A.C.O.G., Anthony P. Despirito, M.D., F.A.A.P., the New Jersey Right To Life Committee, the Student Ad Hoc Committee Against the War in Vietnam and New Jersey Concerned Taxpayers, an association, Intervenors.

Superior Court of New Jersey, Chancery Division.

Jan. 10, 1979.

Nadine Taub, Joan Vermuelen, Edward H. Tetelman and Louis Raveson, Essex-Newark Legal Aid Services, Newark, for plaintiffs.

Michael R. Cole, Asst. Atty. Gen. and Andrea M. Silkowitz, Deputy Atty. Gen., for defendants (John J. Degnan, Atty. Gen., attorneys).

Stephen J. Foley, Asbury Park, for intervenors.

FURMAN, J. S. C.

Plaintiffs challenge N.J.S.A. 30:4D-6.1, which prohibits a state contribution to Medicaid funding for an abortion unless the abortion is necessary to preserve the pregnant woman's life. Based upon five days' trial testimony, affidavits and legal argument plaintiffs contend that the statute under challenge is in dereliction of New Jersey's obligation under the Federal Medicaid Act, 42 U.S.C.A. § 1396 Et seq., and infringes the Due Process, Equal Protection and Establishment of Religion Clauses of the Federal and State Constitutions and the Freedom of Religion Clause of the Federal Constitution.

Plaintiffs are four women who were pregnant when their complaint or amended complaint was filed, two mothers on behalf of minor daughters who were then pregnant, a medical doctor, two nonprofit associations formed to protect abortion and welfare rights, and a religious association for abortion rights.

In accordance with R.R. 4:32-1, 2, this court certified the individual plaintiffs as representatives of two classes: Medicaid-eligible women who are seeking funding for elective nontherapeutic abortions and for abortions which are medically necessary for the protection of their health, although their pregnancies are not life-threatening. Injunctions (R.R. 4:52-2) to order Medicaid funding for abortions for two of the individual plaintiffs and both minors were granted, based upon proof by affidavits of medical opinions that carrying their fetuses to term would threaten severe and long-lasting impairment of their health. The classes which plaintiffs represent are capable of repetition, and without their certification as representatives class action adjudication would be evaded. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1972), reh. den. 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973).

Defendants are state officials with responsibility for the administration of the State Medicaid statute. Defendant intervenors are three medical doctors, a nonprofit corporation formed to oppose abortion, a nonprofit association of students opposing the war in Vietnam and a nonprofit taxpayers association.

N.J.S.A. 30:4D-6.1 was enacted as L.1975, C. 261, effective December 18, 1975. Prior to that New Jersey imposed no statutory restriction on Medicaid funding for abortions. Judge Barlow in the Federal District Court for New Jersey enjoined the enforcement of N.J.S.A. 30:4D-6.1 in Doe v. Klein, No. 76-74 (injunction issued March 18, 1976). He vacated that injunction in August 1977, subsequent to the United States Supreme Court decisions in Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977), and Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), which uphold the federal statutory and constitutional validity of Pennsylvania and Connecticut statutes prohibiting Medicaid funding for elective nontherapeutic abortions. The Court of Appeals for the Third Circuit affirmed the dissolution of the injunction. Doe v. Klein, 568 F.2d 768 (1978).

In Beal Justice Powell commented:

* * * Although 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. (432 U.S. at 444, 445, 97 S.Ct. at 2371)

Planned Parenthood of New York City v. State, 75 N.J. 49, 379 A.2d 841 (1977) barred reimbursement to Planned Parenthood for elective abortions performed in New York on New Jersey residents prior to the Supreme Court decisions striking down criminal abortion statutes as an invasion of the constitutionally protected right to privacy (Wade, supra; Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1972), reh. den. 410 U.S. 959, 93 S.Ct. 1410, 35 L.Ed.2d 694 (1973)). In his concurring opinion, paralleling Justice Powell's comment, Justice Pashman noted that the court's decision should in no way be construed * * as a judicial sanctioning of the validity of N.J.S.A. 30:4D-6.1, L.1975, C. 261, § 1, effective December 18, 1975, which prohibits payments for termination of a woman's pregnancy for any reason except where it is medically necessary to save her life. This is a question for another day. Neither should the recent decision of the United States Supreme Court in Maher v. Roe (citation omitted) be considered as dispositive of the equal protection issue under the New Jersey Constitution.

The effect of the challenged regulation would be to ban Medicaid abortions for the poor. I have serious doubts as to the constitutionality of such a prohibition. It may well violate the equal protection guarantees inherent in Art. I, par. 1 of the New Jersey Constitution by making an irrational distinction between groups of pregnant women. (75 N.J. at 56, 71, 379 A.2d at 845)

The issue framed by Justice Powell in Beal and by Justice Pashman in Planned Parenthood is before this court for resolution.

Medicaid is a joint federal-state system for funding medical services for families with dependent children and aged, blind or disabled individuals without financial resources to pay for them. It was enacted as 79 Stat. 343; 42 U.S.C.A. § 1396 Et seq., on July 30, 1965. Participation by states is optional, not compulsory. A participating state's Medicaid plan must be approved by the Federal Department of Health, Education and Welfare. New Jersey's plan was approved in 1970 and has not been amended to include the restrictions against Medicaid funding for abortions in N.J.S.A. 30:4D-6.1. According to Aitchison v. Berger, 404 F.Supp. 1137 (S.D.N.Y.1975), aff'd 538 F.2d 307 (2 Cir. 1976), Cert. den. 429 U.S. 890, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976), H.E.W. approval is not dispositive of a state plan's compliance with the federal Medicaid Act.

No federal Medicaid payments are available except to a participating state. Such payments are advances for the next quarter-year, in accordance with a mathematical formula reflecting state Medicaid disbursements during the preceding quarter-year. Both federal and state legislative appropriations finance Medicaid.

The Federal Congress, like the New Jersey Legislature, has enacted limitations on Medicaid funding for abortions. The so-called Hyde Amendment, P.L. 95-205, 91 Stat. 1460, approved December 9, 1977, provides as follows:

* * * (N)one of the funds provided for in this paragraph shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest, when such rape or incest has been reported promptly to a law enforcement agency or public health service; or except in those 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.

Plaintiffs are not attacking the constitutional validity of the Hyde Amendment. Their argument is that the Hyde Amendment is not binding on the states and is not an implied repealer of the statutory obligation of the states under 42 U.S.C.A. § 1396 Et seq., as plaintiffs construe that act, to provide Medicaid funding for medically necessary abortions. See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (holding that an appropriations act without express language of repealer did not repeal by implication prior conflicting legislation).

The Hyde Amendment by its terms is a limitation on federal, not state, Medicaid appropriations. Nevertheless it may be viewed as binding on the states in the sense that it defines "necessary medical services" in the particular instance of abortions and is, accordingly, a clarification, not an implied repealer, of the general terms of 42 U.S.C.A. § 1396 Et seq., excluding from the definition of "necessary medical services" abortions which are medically recommended to prevent an insignificant or temporary impairment to a pregnant woman's health, not a severe and long-lasting impairment.

The effect of the Hyde Amendment need not be resolved. N.J.S.A. 30:4D-6.1 is more restrictive than 42 U.S.C.A. § 1396 Et seq., as plaintiffs construe that act, or than the Hyde Amendment. In limiting Medicaid funding...