Roe v. Ferguson

• Decision Date: 28 April 1975
• Docket Number: No. 74-2195,74-2195
• Parties: Rachel ROE et al., Plaintiffs-Appellees, v. Joseph T. FERGUSON, Individually and in his capacity as Auditor of the State of Ohio, and Charles W. Bates, Individually and in his capacity as Director of the Ohio Department of Public Welfare, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 279

515 F.2d 279

Rachel ROE et al., Plaintiffs-Appellees, v. Joseph T. FERGUSON, Individually and in his capacity as Auditor of the State of Ohio, and Charles W. Bates Individually and in his capacity as Director of the Ohio Department of Public Welfare, Defendants-Appellants.

No. 74-2195.

United States Court of Appeals Sixth Circuit.

April 28, 1975.

William J. Brown, Atty. Gen. of Ohio, Columbus, Ohio, Thomas V. Martin, Asst. Atty. Gen., for defendants-appellants.

Linda K. Champlin, Robert Newman, Clyde Ellis, American Civil Liberties Union of Ohio Foundation Inc., Robert L. Mullinax, Ohio State Legal Services, Columbus, Ohio, for plaintiffs-appellees.

Before PECK and MILLER, Circuit Judges, and HERMANSDORFER, ^* District Judge.

WILLIAM E. MILLER, Circuit Judge.

The district court held the Ohio statutory provision (Ohio Rev.Code, Sec. 5101.55(C)) and administrative rulings thereunder, prohibiting the use of state or local funds to pay for an abortion unless the abortion was necessary to preserve the life or physical or mental health of the pregnant woman, to be in conflict with the federal Social Security Act. 42 U.S.C. § 1396a. Enforcement of the Ohio statute and administrative policy was accordingly enjoined by the court's judgment entered September 16, 1974. ¹

Previously, on February 14, 1973 in Doe v. Brown, ² the district court for the Southern District of Ohio, had nullified on constitutional grounds the Ohio criminal law proscribing the performance of certain abortions. Nevertheless, on February 21, 1974, defendant Ferguson, Auditor of the State of Ohio, wrote the Director of the Ohio Department of Welfare, announcing the policy that the auditor would not sign warrants for any vouchers arising from the Ohio Medicaid program from physicians seeking reimbursement for "any Elective Abortion bills." ³ Subsequently, the state statute prohibiting the use of state or local public funds to pay for abortions not "necessary to preserve the life or physical or mental health" of the pregnant woman, became law on June 17, 1974. ⁴ This law was to have taken effect on September 16, 1974, but was declared void by the district court in the present case.

The plaintiffs challenging Ohio's policy and statute, may be classified in four groups: pregnant welfare recipients, physicians who perform abortions for welfare recipients, clinics in which physicians perform such abortions, and the National Organization of Women (NOW). In this action plaintiffs challenged the auditor's policy and the state statute as being inconsistnt with the Social Security Act, Title XIX, 42 U.S.C. § 1396 et seq., and also as being violative of the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. The district court on September 16, 1974 sustained the motion of plaintiffs for summary judgment, finding that there was no disputed issue of material fact and that the state statute and policy were not as a matter of law in conformity with the mandatory provisions of the federal Social Security Act, 42 U.S.C. § 1396 et seq. By thus construing the federal statute as prohibiting states participating in the Medicaid program from distinguishing expenses for elective abortions from all other medical expenses, the court avoided the constitutional questions raised by plaintiffs.

Three issues are presented on appeal: (1) Whether the policy of the Ohio state auditor and Ohio Rev.Code, § 5101.55(C), by restricting the payment of Medicaid funds to abortions necessary to preserve the mental or physical health of the pregnant woman, are in conflict with the provisions of the Social Security Act; (2) Whether the Ohio statute and policy violate the 9th and 14th amendments, thus providing an alternative ground for affirmance; and (3) Whether this Court has jurisdiction to consider the constitutional issues presented.

Although not raised by the parties, we first consider a preliminary issue of standing. ⁵ It may be judicially noticed that the outcome of this case can be of no immediate concern to the pregnant welfare recipients named as plaintiffs. However, at the date of the filing of the case there can be no dispute that these plaintiffs, as pregnant indigent women, presented a justiciable case or controversy and thus had standing to challenge the state statute and policy. Roe v. Wade, 410 U.S. 113, 124, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The termination of plaintiffs' pregnancy cannot be considered to have rendered their case moot since the condition is capable of repetition and termination before future appellate review could be obtained. Id. at 125, 93 S.Ct. 705.

With regard to the standing of the plaintiff physicians, recent cases have settled the right of physicians in the practice of medicine to assert their constitutional rights to advise and perform abortions for indigent women. Doe v. Bolton, 410 U.S. 179, 187-89, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). Crossen v. Breckenridge, 446 F.2d 833, 839-40 (6th Cir. 1971). That plaintiff physicians in this case are not threatened with criminal prosecutions does not compel a different result. Nyberg v. City of Virginia,495 F.2d 1342, 1344 (8th Cir. 1974); Wulff v. Singleton, 508 F.2d 1211 (8th Cir. 1974).

In view of our ruling as to the standing of the above mentioned plaintiffs, it is unnecessary to resolve the issue of the standing of the other plaintiffs. The issues are sufficiently and adequately presented by the plaintiffs Roe and Joe and plaintiff physicians. Nothing would be gained or lost by the absence or presence of the other plaintiffs as parties. Roe v. Wade, 410 U.S. 113 at 127, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179 at 189, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

Plaintiffs first contend, and the district court held, that the state statute and the policy of the state auditor are in conflict with the provisions and purposes of the Medical Assistance Program of the Social Security Act. ⁶ (Medicaid). Medicaid is a federal grant-in-aid project. A state's involvement is voluntary. For a state to receive federal monies, however, its implementation of the program must meet federal requirements. Title XIX of the Social Security Act establishes a comprehensive scheme of medical care for the needy to be administered by the states and jointly funded by the federal and state governments. The Ohio statutes implementing the program extend medical assistance to all recipients of Aid to Families with Dependent Children (AFDC), ⁷ and other programs subsumed under Ohio Rev.Code § 5101.51 and Ohio Rev.Code, Chapter 5107.

For welfare recipients covered by the statutory scheme, Title XIX provides that states must provide the following minimal services: (1) inpatient hospital services; (2) out patient hospital services; (3) other laboratory and x-ray services; (4) skilled nursing facility services, screening and diagnosis of children, and family planning services; and (5) physicians' services. 42 U.S.C. §§ 1396a(a)(13), 1396d(a)(1)-(5). ⁸

Plaintiffs argue that the abortion services excluded from coverage by the state of Ohio may properly fall within the definition of either physicians' services, inhospital services, out patient services, or family planning services.

A number of courts have confronted the question whether a state's exclusion of Medicaid funds for abortions not required for the physical or mental health of the pregnant women can be overturned on purely statutory grounds. In Roe v. Norton, 380 F.Supp. 726 (D.Conn.1974), it was argued that the federal statute should be construed to prohibit federal reimbursement for the expenses of an abortion unless the abortion is to prevent a detriment to the woman's physical or psychiatric health. The court there held that the language in the federal statute authorizing the reimbursement for "necessary medical services" ⁹ does not permit the exclusion of any abortions and that the state statutory restriction was therefore invalid. While the court based its holding on statutory grounds, it is evident that this approach was resorted to to "avoid doubts as to the constitutionality" of the state statute. 380 F.Supp. at 730. ¹⁰

Other courts faced with the same question have refused to find that such state policies are in conflict with the federal statute, preferring to base their holdings on constitutional grounds. The earliest federal court decision came from New York in 1972. Klein v. Nassau County Medical Center, 347 F.Supp. 496 (E.D.N.Y.1972) aff'd sub nom. Ryan v. Klein, 412 U.S. 924, 93 S.Ct. 2747, 37 L.Ed.2d 151 (1973), but vacated and remanded in light of Roe v. Wade and Doe v. Bolton, 412 U.S. 925, 93 S.Ct. 2747, 37 L.Ed.2d 152 (1973). The Klein court observed that "(m)edical assistance for abortion is not less 'necessary' because an election to bear the child would obviate that medical assistance and require instead other, more extensive and more expensive medical assistance," and that abortion services are thus "provided under the Medicaid program as 'necessary' medical assistance." Id. at 500. The court, however, refused to rely solely on statutory grounds, basing its decision primarily on the equal protection clause.

In a more recent case, Doe v. Rose, 499 F.2d 1112 (10th Cir. 1974), the abortion policy of the State of Utah, similar to the Ohio policy, was challenged on both statutory and constitutional grounds. Addressing itself first to the statutory ground of attack, the Rose court noted that the federal Medicaid statute makes no mention of abortion. The court thus felt that it lacked "specific guidelines as to whether Congress intended that abortions be covered by Medicaid and, if so, more critically, which abortions were to be covered by Medicaid benefits." 499 F.2d at 1114. Although it recognized that preference is to be given statutory, as opposed to constitutional, resolution of welfare controversies, the court nevertheless stated that:

in light of the...