Stopczynski v. Governor of State, Docket No. 45458

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: PER CURIAM
• Citation: 92 Mich.App. 191,285 N.W.2d 62
• Parties: Thaddeus C. STOPCZYNSKI, John A. Welborn, Dr. Edward Y. Postma, et al., Plaintiffs-Appellees, v. GOVERNOR OF the STATE of Michigan and the Department of Human Services, Defendants-Appellants.
• Docket Number: Docket No. 45458
• Decision Date: 04 September 1979

Page 62

285 N.W.2d 62 92 Mich.App. 191 Thaddeus C. STOPCZYNSKI, John A. Welborn, Dr. Edward Y.
Postma, et al., Plaintiffs-Appellees,
v.
GOVERNOR OF the STATE of Michigan and the Department of
Human Services, Defendants-Appellants. Docket No. 45458. Court of Appeals of Michigan. Sept. 4, 1979.
Released for Publication Nov. 9, 1979.

Page 63

[92 Mich.App. 193] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William K. Basinger, Erica Weiss, Asst. Attys. Gen., for defendants-appellants.

Paul E. Hamilton, Williamston, Joseph Zanglin, Detroit, Robert K. Costello, East Detroit, for plaintiffs-appellees.

Before R. B. BURNS, P. J., and BEASLEY and RILEY, JJ.

PER CURIAM.

This action is a contest between the Legislature and the Governor. Initially, the Legislature passed SB 829 ¹, which would have prohibited the use of Medicaid funds for nontherapeutic abortions. The Governor vetoed the legislation. Unable to override the veto, the Legislature attempted to restrict state funding of nontherapeutic abortions through an appropriation bill. The Governor vetoed the portions of this appropriations bill dealing with nontherapeutic abortions. When the Legislature was also unable to override this veto, plaintiffs started suit, and the trial court, holding that the Governor's veto was ineffective, enjoined defendants from funding nontherapeutic abortions. We reverse.

[92 Mich.App. 194] In 1966, with the enactment of 1966 P.A. 321, Michigan became a participant in the medical assistance program for the medically indigent pursuant to Title XIX of the Federal Social Security Act, as amended, 42 U.S.C. § 1396 Et seq. M.C.L. § 400.105 Et seq.; M.S.A. § 16.490(15) Et seq. Neither statute contains an express provision dealing with assistance for abortions, whether elective or therapeutic, under this program. At the time of the enactment of the Medicaid program the performing or procuring of all elective and of some therapeutic abortions was a felony in this state. M.C.L. §§ 750.14, 750.15, 750.322 and 750.323; M.S.A. §§ 28.204, 28.205, 28.554 and 28.555, and M.C.L. § 338.53; M.S.A. § 14.533.

In 1973, the United States 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), held that a pregnant woman has a constitutional right to an abortion, elective or therapeutic, during the first two trimesters of pregnancy, as an aspect of "liberty" under the Due Process Clause of the Fourteenth Amendment. Following those decisions, the Department of Human Services, which administers the Medicaid program in Michigan, began to authorize payment for nontherapeutic abortions, and the Federal government, pursuant to Title XIX of the Social Security Act, shared the costs.

In 1977, the United States Supreme Court interpreted Title XIX as constitutionally permitting a state to exclude nontherapeutic abortions from Medicaid coverage. Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977), Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977). Congress, by statute, expressly precluded the use of Federal Medicaid funds for nontherapeutic abortions[92 Mich.App. 195] during the fiscal year 1977. Departments of Labor and Health, Education, and Welfare Appropriation Act, 1977, P.L. 94-439, § 209, 90 Stat. 1434. That limitation has persisted. P.L. 95-205, § 101, 91 Stat. 1460.

In 1978, the Michigan Legislature passed SB 829, which would have prohibited the use of Medicaid funds for nontherapeutic abortions. On December 27, 1978, the Governor vetoed the bill, informing the Legislature of his reasons for doing so. The Legislature was unable to override the veto.

Finding direct assault on state-funded abortions unavailing, the Legislature attempted an indirect approach by passing HB 6049, an appropriations bill for the fiscal year ending September 30, 1979, in which the following line item appropriations appear:

"MEDICAL SERVICES

* * * * * * *

"Hospital services and therapy,

not including nontherapeutic

abortions $306,446,500

"MEDICAL SERVICES

"Physician services, not including

nontherapeutic abortions 144,023,600

* * * * * * *

"Pharmaceutical, not including

nontherapeutic abortions 69,809,700

* * * * * * *

"Nontherapeutic abortions 1"

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Pursuant to the power granted him by Const. 1963, art. 5, § 19, the Governor vetoed these line-item appropriations, reiterating in his message to the Legislature his continuing opposition. In making these line-item vetoes, however, the Governor left unchanged the subtotaled appropriation for medical[92 Mich.App. 196] services. Thus modified, HB 6049, which was a blanket appropriations bill, became 1978 P.A. 401 when the Legislature was unable to override the gubernatorial veto. All four lines under the heading "Medical Services" which had read as indicated above were omitted.

Subsequently, the Legislature passed HB 6650, a supplemental appropriations bill for the first three months of the fiscal year 1978-1979 for the Medicaid program. The bill provided in part:

"MEDICAL SERVICES

"Hospital services and therapy $ 81,208,300

"Physician services 38,166,300

"Pharmaceutical services 18,500,000

"Nontherapeutic abortions 1"

The Governor vetoed the line-item appropriation of $1 for nontherapeutic abortions. Once again, the Legislature was unable to muster the necessary two-thirds majority to override the veto. Thus modified, HB 6650 became 1978 P.A. 417. A further supplemental appropriations bill for the remaining nine months of fiscal year 1978-1979, HB 6674, identical to HB 6650 except as to amounts, similarly had its $1 appropriation for nontherapeutic abortions line-item vetoed by the Governor, which veto the Legislature was unable to...