Women's Health Services v. Maher

• Decision Date: 07 January 1980
• Docket Number: Civ. No. H-79-405.
• Citation: 482 F. Supp. 725
• Court: U.S. District Court — District of Connecticut
• Parties: WOMEN'S HEALTH SERVICES, INC., et al. v. Edward MAHER et al.

482 F. Supp. 725

WOMEN'S HEALTH SERVICES, INC., et al. v. Edward MAHER et al.

Civ. No. H-79-405.

United States District Court, D. Connecticut.

January 7, 1980.

Martha Stone, Conn. Civil Liberties Union, Hartford, Conn., Catherine G. Roraback, Canaan, Conn., for plaintiffs.

Michael A. Arcari, Paige Everin, Asst. Attys. Gen., Hartford, Conn., Cheryl B. Wattley, Asst. U. S. Atty., New Haven, Conn., Brian N. Smiley, U. S. Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM OF DECISION

BLUMENFELD, District Judge.

Connecticut's Medicaid program makes payment for abortion services only when, "on the basis of his professional judgment, the attending physician has certified in writing that the abortion is necessary because the life of the mother would be endangered if the fetus were carried to term." 3 Dep't of Income Maintenance, Medical Assistance Program Manual, ch. III, § 275 (Sept. 1, 1977) hereinafter section 275. This action was filed on July 17, 1979, challenging section 275 on both statutory and constitutional grounds. Jurisdiction is founded upon 28 U.S.C. § 1343 (1976), and this court's pendent jurisdiction, see Hagans v. Lavine, 415 U.S. 528, 543-45, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).¹

The named plaintiffs are a non-profit New Haven clinic providing pregnancy termination services, an indigent pregnant woman who sought an abortion for medically necessary reasons, and two physicians who concurred in the medical judgment that an abortion was necessary to preserve her health. The case was certified on the day it was filed as a class action to include all indigent pregnant women in Connecticut seeking state medical assistance for a medically necessary abortion and all physicians who are certified to and treat as patients Medicaid-eligible women. Defendant Edward Maher, Commissioner of the Connecticut Department of Income Maintenance, is the state official responsible for the promulgation and enforcement of section 275. Defendant Henry Parker is the State Treasurer, with authority over the disbursement of state monies.

A temporary restraining order has been in effect since July 17, 1979, prohibiting the defendants from enforcing section 275 and requiring them to provide reimbursement to certified physicians for all medically necessary abortions performed on Medicaid-eligible women. A hearing was conducted on October 19, 1979 on the plaintiffs' motion for a preliminary injunction, at the conclusion of which all parties agreed to a consolidation with the hearing on the merits under Fed.R.Civ.P. 65(a)(2). The case is thus ripe for final decision.

The central issue is easily stated: Must Connecticut provide Medicaid reimbursement for all medically necessary, i. e. therapeutic, abortions performed on indigent pregnant women either under Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396k (1976 & Supp. I 1977), or under the Constitution? Regrettably, the question admits of no simple answer. The issues presented on the statutory branch of the case are purely legal ones, and so I will consider those before making any findings of fact that might be necessary to a constitutional decision.

The Statutory Claims

The Supreme Court in Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977), summarized the purpose and general structure of the Medicaid program as follows:

"Title XIX establishes the Medicaid program under which participating States may provide federally funded medical assistance to needy persons. The statute requires participating States to provide qualified individuals with financial assistance in five general categories of medical treatment. 42 U.S.C. §§ 1396a(a)(13)(B) (1970 ed., Supp. V), 1396d(a)(1)-(5) (1970 ed. and Supp. V). Although Title XIX does not require States to provide funding for all medical treatment falling within the five general categories, it does require that state Medicaid plans establish `reasonable standards . . . for determining . . . the extent of medical assistance under the plan which . . . are consistent with the objectives of Title XIX.' 42 U.S.C. § 1396a(a)(17) (1970 ed., Supp. V)."

432 U.S. at 440-41, 97 S.Ct. at 2368-2369 (footnotes omitted).

Connecticut's Medicaid plan, which pays for abortions necessary to save the life of the mother but not those necessary to preserve her health, is assailed by the plaintiffs as running afoul of Title XIX and its accompanying regulations. Primary reliance is placed on the contention that the federal statute requires the state to provide coverage for "all `necessary medical services.'" Plaintiffs' Supplemental Brief at 9 (emphasis in original). The argument is not unattractive. One objective of Title XIX is to furnish medical assistance to those "whose income and resources are insufficient to meet the costs of necessary medical services," 42 U.S.C. § 1396(1) (1976) (emphasis added), and the "standards . . . for determining . . . the extent of medical assistance under the state plan" must be consistent with that objective, id. § 1396a(a)(17). Were Title XIX read to require payment for all medically necessary services, the state regulation would certainly have to be struck down as inadequate. On closer analysis, however, this reasoning proves more seductive than supportable.

The statute's reference to "necessary medical services" must be read in context. Section 1396 describes the persons eligible for Medicaid assistance as those "whose income and resources are insufficient to meet the costs of necessary medical services." The services for which Medicaid payments are available are described in section 1396d(a)(1)-(17) and while quite comprehensive in nature, that section does not read in terms of necessity. A number of district courts, perhaps in an effort to avoid difficult constitutional problems, have held that Title XIX obligates the states to provide for all necessary medical services.²E. g., Doe v. Busbee, 471 F.Supp. 1326, 1330-31 (N.D.Ga.1979); Roe v. Casey, 464 F.Supp. 487, 500 (E.D.Pa.1978); Smith v. Ginsberg, Civil No. 75-0380 CH, slip op. at 3 (S.D.W.Va. May 9, 1978). The one court of appeals to face and analyze the question squarely, however, has reached an opposite conclusion. Preterm, Inc. v. Dukakis, 591 F.2d 121, 124-25 (1st Cir. 1979) (majority opinion), cert. denied, 441 U.S. 952, 99 S.Ct. 2181, 2182, 60 L.Ed.2d 1057 (1979). The Second Circuit, too, has been careful in the past to distinguish between the statute's description of persons eligible for assistance and those services for which payments are available. In Roe v. Norton, 522 F.2d 928 (2d Cir.), on remand, 408 F.Supp. 660 (D.Conn.1975) (3-judge court), rev'd sub nom. Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), a nontherapeutic abortion case, the court noted, "The broad classifications of the types of care and services authorized by § 1396d do not include a `medical necessity' requirement. . . . We find no such requirement elsewhere in the statute." Id. at 933 (citation omitted). The careful reasoning on this point in Preterm and the Second Circuit's statement in Norton persuade me that Title XIX does not require state plans to cover all necessary medical services.

The statutory questions in this case are not exhausted by so holding, however. The district courts have been nearly unanimous in concluding that a state restriction on funding for medically necessary abortions contravenes one or more of the plancontent requirements found in Title XIX and its accompanying regulations,³ which of course have the force of law. Planned Parenthood Affiliates v. Rhodes, 447 F.Supp. 529, 537 (S.D.Ohio 1979); Hodgson v. Board of County Commissioners, No. 4-78 Civ. 525, slip op. at 8 (D.Minn. July 13, 1979); Doe v. Busbee, supra, at 1330 n. 9; Roe v. Casey, supra, at 500-02; Smith v. Ginsberg, supra, at 3; see Doe v. Kenley, 584 F.2d 1362, 1366 (4th Cir. 1978). Contra, D. R. v. Mitchell, 456 F.Supp. 609, 616-26 (D.Utah 1978), appeal docketed, No. 78-1675 (10th Cir. 1978). While these courts thus struck down the challenged state restrictions on statutory grounds, the First and Seventh Circuits did not. Zbaraz v. Quern, 596 F.2d 196, 199-202 (7th Cir. 1979); Preterm, Inc. v. Dukakis, supra, at 127-34. They held, instead, that the Hyde Amendment⁴ substantively modifies the requirements of Title XIX with respect to those abortions not excepted by the Amendment.

In its fiscal 1978-1979 embodiment, the Hyde Amendment provided in pertinent part:

"That none 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."

Act of Oct. 18, 1978, Pub.L.No. 95-480, § 210, 92 Stat. 1567; Act of Dec. 9, 1977, Pub.L.No. 95-205, § 101, 91 Stat. 1460.⁵ The courts holding that Hyde does not modify the states' Title XIX obligations have generally taken a "plain meaning" approach to the language of the rider and concluded that it affects only federal appropriations, not Title XIX. The Preterm majority and Zbaraz court have been criticized for resorting to an analysis of legislative history when the language of the Hyde Amendment is so "plain." In my view, however, it strains credibility to insist that the meaning and purpose of the rider are so clear that a court is forbidden to examine the relevant legislative history. As the Preterm majority explained:

"The construction urged by the plaintiffs would result in imposing an obligation on the states to fund the total cost of non-Hyde Amendment therapeutic abortions, a result not consonant with the basic policy

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