Roe v. Norton, No. 593

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtBefore FEINBERG and MULLIGAN, Circuit Judges, and BRYAN; FREDERICK van PELT BRYAN; MULLIGAN
Citation522 F.2d 928
PartiesSusan ROE et al., Plaintiffs-Appellees, v. Nicholas NORTON et al., Defendants-Appellants. ocket 74-1874.
Docket NumberD,No. 593
Decision Date31 July 1975

Page 928

522 F.2d 928
Susan ROE et al., Plaintiffs-Appellees,
v.
Nicholas NORTON et al., Defendants-Appellants.
No. 593, Docket 74-1874.
United States Court of Appeals,
Second Circuit.
Argued Dec. 11, 1974.
Decided July 31, 1975.

Page 929

Edmund C. Walsh, Asst. Atty. Gen. (Robert K. Killian, Atty. Gen., State of Connecticut), for defendants-appellants.

Lucy V. Katz, Bridgeport, Conn. (Kathryn Emmett and Koskoff, Koskoff, Rutkin & Bieder, Bridgeport, Conn., Catherine G. Roraback and Ann C. Hill, New Haven, Conn., and Marilyn P. Seichter, Hartford, Conn.), for plaintiffs-appellees.

Before FEINBERG and MULLIGAN, Circuit Judges, and BRYAN, District Judge. *

FREDERICK van PELT BRYAN, District Judge:

Appellants here are the Commissioner of Welfare of the State of Connecticut and two other officials of the Connecticut Welfare Department charged with the administration of the State Medical Assistance Program. They appeal from a judgment of the United States District Court for the District of Connecticut (Jon O. Newman, J.) which declared invalid and enjoined the enforcement of a Connecticut Welfare Department regulation on the ground that the regulation was contrary to Title XIX (the Medicaid provisions) of the Social Security Act, 42 U.S.C. § 1396 et seq.

The challenged regulation, Connecticut Welfare Department, Public Assistance Program Manual, Vol. 3, Ch. III, Section 275, required that as a pre-condition to coverage of abortion services for women in Connecticut eligible for Medicaid, the abortion must be a therapeutic one, recommended by the attending physician and the Chief of Obstetrics and Gynecology in the accredited hospital as "medically or psychiatrically necessary". Under the regulation, a prior authorization request is required which must include a "statement indicating the medical or psychiatric need for the abortion" and also a form which certifies that in the opinion of the attending physician the abortion "is medically necessary for the patient's health", signed by the physician

Page 930

and attested by the Chief of Obstetrics and Gynecology. 1

The judgment appealed from was entered in a class action brought by two indigent women eligible for Medicaid payments and recipients of Aid to Dependent Children from the State of Connecticut. The suit challenged Section 275 as both contrary to Title XIX of the Social Security Act and in violation of several provisions of the United States Constitution, including the equal protection and due process clauses of the Fourteenth Amendment.

Plaintiff Susan Roe, 26 years old and the unmarried mother of three small children, was seven weeks pregnant at the time suit was instituted. She desired an abortion to avoid further family burdens and complications. Her attending physician believed the abortion to be a medically appropriate procedure and was willing to perform it. However, in his opinion it was not medically necessary in the sense that the patient's life or health would be threatened if the abortion was not performed. Roe was therefore unable to obtain the certification required by Section 275 that the abortion was recommended "as medically or psychiatrically necessary". She was thus not entitled to reimbursement from the state for the cost of the abortion and she was unable to pay for the abortion herself. She sued on behalf of herself and a class consisting of all pregnant women eligible for medical assistance from the State of Connecticut who had been refused such assistance for the performance of a requested abortion authorized by a physician. 2

Plaintiff Mary Poe, a 16-year-old high school student, suing by her mother and next friend, had had an elective abortion at a Bridgeport, Connecticut hospital. She did not obtain the certification required by Section 275. The Connecticut Welfare Department therefore refused to pay her hospital bill. Poe sued on behalf of herself and all women eligible for Connecticut medical assistance who had undergone abortions for which Medicaid payment had been refused by the State.

The action was brought under 42 U.S.C. § 1983 and jurisdiction was based on 28 U.S.C. § 1343(3). Judgment was sought declaring that Section 275 was invalid and enjoining its enforcement.

Plaintiffs moved before Judge Newman for a class action determination under Rule 23, F.R.Civ.P.; for the convening of a three-judge district court pursuant to 28 U.S.C. §§ 2281 and 2284; and for summary judgment.

Defendant welfare officials acknowledged that under the decisions of the

Page 931

Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); and of the three-judge court in Abele v. Markle, 369 F.Supp. 807 (D.Conn.1973), 3 pregnant women in Connecticut, at least in the first trimester of pregnancy, were free to have an abortion on the advice of their own physicians. However, defendants' position was that the Medicaid provisions of the Social Security Act (Title XIX) prohibited federal reimbursement for the costs of an abortion unless the abortion was medically necessary for the woman's physical or psychiatric health. They asserted that Section 275 had been adopted only because the restrictions it imposed were required by Title XIX and would not otherwise have been in force. Connecticut has consistently adhered to that position, both in the district court and on this appeal.

Judge Newman found the action was properly maintainable as a class action under Rule 23(b)(2) and that plaintiffs' claim that Section 275 violated the Constitution was substantial enough to confer jurisdiction on the district court pursuant to 28 U.S.C. § 1343(3) in an action under 42 U.S.C. § 1983. Roe v. Norton, 380 F.Supp. 726, 728 (D.Conn.1974). The determination of the constitutional question would ordinarily have required the convening of a three-judge district court pursuant to 28 U.S.C. §§ 2281 and 2284. However, Judge Newman found, 380 F.Supp. at 728, that plaintiffs' contention that Section 275 was contrary to Title XIX of the Social Security Act presented a statutory claim pendent to the constitutional claim which could be determined by a single judge without convening a three-judge court. Hagans v. Lavine, 415 U.S. 528, 543-545, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).

Judge Newman therefore proceeded to pass only on the pendent statutory claim that Section 275 was invalid as contrary to Title XIX of the Social Security Act. He analyzed the relevant provisions of Title XIX in the context of federal reimbursement for abortion services and gave weight to the views of the Department of Health, Education and Welfare (H.E.W.) that "under Title XIX, federal financial participation is available for any abortions for which the state welfare agency provides payment." 4 Finally, he expressed the view that there were substantial doubts as to the constitutionality of Title XIX in the light of Roe v. Wade, supra and Doe v. Bolton, supra, and that the statute must be construed so as to avoid such doubts. 380 F.Supp. at 730.

Judge Newman concluded (1) that Title XIX did not limit Medicaid reimbursement for abortions under a state medical assistance program to those medically necessary for the health of the patient, but permitted payment for elective abortions as well; and (2) that Title XIX prohibited state regulations that "impair a woman's exercise of her right, in consultation only with her physician, to have an abortion," whether medically necessary or elective. He therefore held that Section 275 was invalid as contrary to Title XIX and that its enforcement should be enjoined, and entered judgment to that effect. 380 F.Supp. at 730.

Three different points of view concerning the meaning and effect of Title XIX as to coverage for abortion services are presented on this appeal.

In an Amicus curiae memorandum submitted at the request of this Court subsequent to argument, H.E.W. elaborates on the views expressed on its behalf in the court below. H.E.W. takes the position (1) that Title XIX does not Preclude a state Medicaid program from paying for abortions which are not "medically necessary"; but (2) that Title XIX does

Page 932

not Require a state to make Medicaid payments for abortions which are not "medically necessary." In effect, H.E.W. disagrees with the holding of the court below that Title XIX Prohibits state regulations denying Medicaid payments for abortions which are not "medically necessary."

The Connecticut appellants, on the other hand, contend that Title XIX not only does not Require a state to include under its Medicaid plan coverage of an abortion which is not "medically necessary," but Prohibits coverage of such an abortion. They insist, as they did below, that the Section 275 restrictions on coverage of abortions are mandated by Title XIX. They therefore seek reversal of the judgment below in all respects.

The appellee-plaintiffs, in turn, take the position that Title XIX both permits state Medicaid payments for elective abortions and prohibits regulations which deny payments for elective abortions. They urge that the district court was correct in holding that Section 275 was invalid as contrary to Title XIX and that the judgment below should be affirmed in all respects.

At the outset, clarification of the meaning and effect of Section 275 is in order. Despite the apparent reluctance of the Connecticut appellants to say so, it is clear from a reading of Section 275 that abortions which are deemed "medically necessary" under the regulation are therapeutic abortions, necessary for the health of the patient, as distinguished from elective abortions requested by a woman after consultation with her physician merely because, for whatever reasons, she does not wish to bear the child. Thus, the question as to whether Section 275 is contrary to Title XIX is not, as appellants seem to suggest, whether a physician's certificate approving the abortion may be...

To continue reading

Request your trial
17 practice notes
  • Cowan v. Myers
    • United States
    • California Court of Appeals
    • December 9, 1986
    ...by the legislative history indicating that the two Titles are part of a "coordinated approach." (See Roe v. Norton (2nd Cir.1975) 522 F.2d 928, 940, conc. and dis. opn. of Mulligan, There is no express definition of the term "medical necessity" in Title XIX. However, that does not mean that......
  • Norman v. St. Clair, Nos. 77-1722
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 28, 1980
    ...121, 124-25, Cert. denied sub nom. Preterm, Inc. v. King, 441 U.S. 952, 99 S.Ct. 2182, 60 L.Ed.2d 1057 (1979); Roe v. Norton, 2 Cir. 1975, 522 F.2d 928, 932-33; Johnson's Professional Nursing Home v. Weinberger, 5 Cir. 1974, 490 F.2d 841, 842-43; Arizona State Dep't of Public Welfare v. Dep......
  • Abraham Lincoln Memorial Hosp. v. Sebelius, No. 11–2809.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 16, 2012
    ...or ‘reasonably related’ under Medicare” need not have the same meaning that those terms have for Medicaid purposes); Roe v. Norton, 522 F.2d 928, 933 n. 5 (2d Cir.1975) (assuming that Medicare [698 F.3d 554]has a “medical necessity” requirement, courts should not infer that Medicaid has an ......
  • Norwick v. Nyquist, No. 74 Civ. 2798(WCC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 20, 1976
    ...with specific federal statutory or regulatory provisions, e. g., Holley v. Lavine, 529 F.2d 1294, 1296 (2d Cir. 1976); Roe v. Norton, 522 F.2d 928 (2d Cir. 1975); Roe v. Ferguson, 515 F.2d 279 (6th Cir. 1975); Brown v. Beal, 404 F.Supp. 770 (E.D.Pa. 1975). In such cases, it is the single ju......
  • Request a trial to view additional results
17 cases
  • Cowan v. Myers
    • United States
    • California Court of Appeals
    • December 9, 1986
    ...by the legislative history indicating that the two Titles are part of a "coordinated approach." (See Roe v. Norton (2nd Cir.1975) 522 F.2d 928, 940, conc. and dis. opn. of Mulligan, There is no express definition of the term "medical necessity" in Title XIX. However, that does not mean that......
  • Norman v. St. Clair, Nos. 77-1722
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 28, 1980
    ...121, 124-25, Cert. denied sub nom. Preterm, Inc. v. King, 441 U.S. 952, 99 S.Ct. 2182, 60 L.Ed.2d 1057 (1979); Roe v. Norton, 2 Cir. 1975, 522 F.2d 928, 932-33; Johnson's Professional Nursing Home v. Weinberger, 5 Cir. 1974, 490 F.2d 841, 842-43; Arizona State Dep't of Public Welfare v. Dep......
  • Abraham Lincoln Memorial Hosp. v. Sebelius, No. 11–2809.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 16, 2012
    ...or ‘reasonably related’ under Medicare” need not have the same meaning that those terms have for Medicaid purposes); Roe v. Norton, 522 F.2d 928, 933 n. 5 (2d Cir.1975) (assuming that Medicare [698 F.3d 554]has a “medical necessity” requirement, courts should not infer that Medicaid has an ......
  • Norwick v. Nyquist, No. 74 Civ. 2798(WCC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 20, 1976
    ...with specific federal statutory or regulatory provisions, e. g., Holley v. Lavine, 529 F.2d 1294, 1296 (2d Cir. 1976); Roe v. Norton, 522 F.2d 928 (2d Cir. 1975); Roe v. Ferguson, 515 F.2d 279 (6th Cir. 1975); Brown v. Beal, 404 F.Supp. 770 (E.D.Pa. 1975). In such cases, it is the single ju......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT