Petition — UNITED STATES v. KING (Nos. 78-1430, 78-1238)
Supreme Court brief1978
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FILED
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Inthe | “* 161979
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Supreme Court of the United Shae Rey CLERW
OctToBer TERM, 1978.
wo. 98-1430
PRETERM, INC., STANTON P. GOLDSTEIN, M.D., ano
SHIAO-YU LEE, M.D., INDIVIDUALLY AND ON BEHALF OF
OTHER PERSONS SIMILARLY SITUATED, JANE DOE anp JANE
DOE II, INDIVIDUALLY AND ON BEHALF OF OTHER PERSONS
SIMILARLY SITUATED, MASSACHUSETTS WELFARE
RECIPIENTS FOR WELFARE REFORM anpb
PLANNED PARENTHOOD LEAGUE OF
MASSACHUSETTS,
PETITIONERS,
v.
EDWARD M. KING, Governor OF THE COMMONWEALTH OF
MASSACHUSETTS, EXNWARD T. HANLEY, Secretary or Ap-
MINISTRATION AND FINANCE FOR THE COMMONWEALTH OF
MASSACHUSETTS, CHARLES F. MAHONEY, Secretary oF
HuMAN SERVICES FOR THE COMMONWEALTH OF MASSACHUSETTS,
AND JOHN D. PRATT, Commissioner OF PUBLIC WELFARE FOR
THE COMMONWEALTH OF MASSACHUSETTS,
RESPONDENTS.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the First Circuit.
JouN REINSTEIN, Nancy GERTNER, P
Massachusetts Civil Liberties SILVERGLATE, SHAPIRO & GERTNER,
Union Foundation, 33 Broad Street,
68 Devonshire Street, Boston, Massachusetts 02109.
Boston, Massachusetts 02109. (617) 723-2624
(617) 742-8020
BARBARA SARD,
Greater Boston Legal Services,
466 Blue Hill Avenue,
Roxbury, Massachusetts 02121.
(617) 442-0211
BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS.
ee ee ee ee eS
INDEX
Opinion Below ........e00 a daboutirseessesocesecsccecccccce 2
CURR CTAGD castnnennsnscwebotnnsecsabssensecsccececccscocsecccsces 2
ee ccsscsccnccee og
Statutes and Regulations Involved ........s.ssese0 peeves 2
Statement of the Case ....... eeccccccscscccsocccccosccccccceces 869
Reasons for Granting the Writ ......cccccccsssssssssseseeeee 8
COTE: cccndnvecnnicntsteisnciessccccssceses sunsbbesessccse ssceece 19
APPENDIX
Opinion of the United states Court
of Appeals for the First Circuit .............. la
Statutes and Regulations Involved .........se00 36a
Table of Authorities
Cases:
Beal v. Doe, 432 U.S. 438 (1977) .....ccccccccccecscees sini 8,9
Califano v. McRae, 433 U.S. 916 ....cccccccccscsccscccccccces
Committee to Defend Reproductive Rights
v. Myers, (Cal. Ct. of Appeals, No. 45066
OCOWSSar TD, WITS) <cccececcoscccees genasebecce cccsegeccccee Ll
Doe v. Bolton, 410 U.S. 179 (1973) ......cccccccrsccepecscscece 14
Frieman v. Walsh, (W.D. Mo., No. 77-4171-CV-C
January 26, 1979) ..... Miaiiiedtiabeese soocee ll, 12
Georgia v. Penna. R. Co., 324 U.S. 439 (1945.........006. 15
McRae v. Mathews, 421 F. Supp. 533 (E.D. N.Y. 1976).
Maher v. Roe, 432 Ue s. 464 (1977) COPS COC ESOS EEE SESE SEE EEES
Posados v. National City Bank of New York
296 U. Ss. 497 (1936 eeeeeece th hhh hhh hee eee EY 15
Right to Choose v. Byrne,
(Super. Ct. of N.J., Chane. Div., No. C-3817-77
January 10, 1979) SSHHHSSESH SESE HOSES ES ESES ESE SE SESE SEES EES ll
Roe v. Casey, (E.D. Pa., No. 78-2214,
i ee ee
Roe Vv. Wade, 410 U.S. 113 (1973) PPP PP Pi iit) 14
Tennessee Valley Authority v. Hill, 98 S.Ct. 2279
(1978) CPOSSOSOCECOSECDROCOOCR ODES OOOOCCCCCCCCCCCCCee 8, 15-18
United States v. Borden Co., 308 U.S. 188 (1939) -....... 15
United States v. Continental Tuna nia
Te Seek UE GET OE Ativeniaevicdetstekstdiiicttecskesseces US
United States v. Dickerson, 310 U.S. 554 asa) iiaael me
Zbaraz v. Quern, (7th Cir., Nos. 1669, 1709, 1890,
1891, February 13, 1979) ..... vaveancessascecocssseese EES
Statutes and Regulations:
28 U.S.C. S$1254(1) ...ccccccee eeecenscesseeas eecceccccccccccccccccccs 62
28 U.S.C. $1331 ........ sheneenseceunenens eceeecncsees ccncnenecees ccoe |S
2B UsB.C. G1SED ccrcececse soveesetes encesosnecsss eccccccecccescccece =
42 U.S.C. §1396 et seq. (Title XIX of the
Social Security Act) ..... avaiiines witness sesssesees DASSIM
P.L. 94-439, $209 ....cccccccccee peeeceesodéescosscceee eesecccccess » 9
P.L. 95-205, $209, 91 Stat. 1460
(the Hyde Amendment) ......sscccsssceesseseseee DASSIM
P.L. 95-480, $210, 92 Stat. 1586 ..ccccccccccsscrccccccccsceces 10
California 1978 — Bill, ch. 359
(July 6, 1978)... POPS SO SHEESH ESSE HEE ESEEEEEO EEE E EEE EEEEESEEES ll
Ill. Rev. Stat. (Supp. 1977) ch. 23 §§5-5, 6-1, 7-1 ....... 10
Iowa Social Services Appropriation Bill,
§16, Item 4 (June 22, 1978) .......... iii ssn 10
Ky. Rev. Stat. §205.010 ........csecceees seeecececeseccesceeees -- 10,
La. Rev. Stat. §40:1229.35 .....,.cccseces opuswenesssesecs enceses 10
Mass. Gen. Laws ¢. II8E, §1 ..... pdeunetnaiensinthoninineduanees 3
Mass. Stat. 1978, c. 367, §2, Item 4402-5000 ....... 3, 4, 5
eR PUN tk ND ciiuskiedacelincasnsnsaveieiniiadessiens 10
BeOe TOV. TERE, TRU RIBS cacccnscoccccsctccensscesteccoss eeenecnes 10
N.J. Stat. Ann. 30:4D-6.1 ...... atdieveseuboeseecsoesnsenss a - 10
Pa. Act No. 1978-16A ccccccccccccccccccsccece sddemecosovesteccees 10
Ps Ry Pec STINE. srniceaasanissnsincnicedseiainaanadindnaeasences 10
S.Dak. Come LAWS ARR. GBO-6 cccccccccscccsccocccccccovccoces 10
Tennessee Fiscal Year 1978-1979 Appropriations
Se, Ee ME My TUTE cisnneraiincsntntnwsuiasdcconecens ll
APOE es SI ei cisicinttisibieerntaniceen beeen 10
Sees TI Brea Gils: BUD cacascndensepedcasicbiaddaducdeaseeate se ll
Wyoming Appropriations Bill, §25,
WOGME © THMPON 80, IOFED cnccccccsccacsicnccucscencessccs 10
RR rr ee RT. 2,17
43 Fed. Reg. 4835 (February 3, 1978) .......cccccccsscssseee 18
43 Fed Reg. 31875 (July 21, 1978) .....ccccccsscsccccccccceceee 18
Other Authority:
L.R. Berger, "Abortions in America: The Effects of
Restrictive Funding," 298 New Eng. Journal
Of Medicine 1474 (1978) .....cccccsescoossscocsscccceees 15
In the
SUPREME COURT OF THE UNITED STATES
October Term, 1978
No.
PRETERM, INC., STANTON P. GOLDSTEIN, M.D., and
SHIAO-YU LEE, M.D., individually and on behalf of
other persons similarly situated, JANE DOE and JANE
_DOE Il, individually and on behalf of other persons
similarly situated, MASSACHUSETTS WELFARE
RECIPIENTS FOR WELFARE REFORM and PLANNED
PARENTHOOD LEAGUE OF MASSACHUSETTS,
Petitioners
Vv.
EDWARD M. KING, Governor of the Commonwealth of
Massachusetts, EDWARD T. HANLEY, Secretary of
Administration and Finance for the Commonwealth of
Massachusetts, CHARLES F. MAHONEY, Secretary of
Human Services for the Commonwealth of Massa-
chusetts, and JOHN D. PRATT, Commissioner of Public
Welfare for the Commonwealth of Massachusetts,
Respondents
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
The petitioners respectfully request that a writ
of certiorari issue to review the judgment and opinion
of the United States Court of Appeals for the First
Circuit entered in this proceeding on January 15, 1979.
Opinion Below
The opinion of the United States Court of Appeals
for the First Circuit has not been off icially reported. The
Court's opinion is set forth in the Appendix, infra, pp. la-
35a.
Jurisdiction
The judgment of the United States Court of
Appeals for the First Circuit was entered on January 15,
1979. A timely petition for rehearing was denied by the
Court of Appeals on February 2, 1979. This Court's
jurisdiction is invoked under 28 U.S.C. §1254(1).
Question Presented
Whether the Hyde Amendment, an appropriations
rider which restricted the use of appropriated federal
funds for Medicaid abortions except in certain situations,
operates as a substantive amendment to the provisions of
Title XIX of the Social Security Act, 42 U.S.C. §1396 et
seq., and thereby relieves the states of the obligation to
fund abortion services which are otherwise covered by
Title XIX.
Statutes and Regulations Involved
The statutes and regulations involved in this case
are Title XIX of the Social Security Act, 42 U.S.C. §1396
et seq., and the implementing regulations of the U. S.
Department of Health, Education and Welfare, 42 C.F.R.
$440.230, the Hyde Amendment, P.L. 95-205 §209, 91 Stat.
1460, re-enacted, P.L. 95-480, and Mass. St. 1978, Chapter
367 $2, Item 4402-5000. As the statutes and regulations
involved are lengthy, they are reproduced in the Appendix,
infra, pp. 36a-46a.
Statement of the Case
The Massachusetts medical assistance program is a
state Medicaid program established in accordance with
Title XIX of the Social Security Act, 42 U.S.C. §1396 et
. $eq-, to provide necessary medical services for the needy.
See Mass. Gen. Laws c. l18E §l. Title XIX makes federal
financial support available to states which choose to
participate in the program provided that the state
complies with certain requirements established by federal
law and regulations. However, under the so-called Hyde
Amendment to the H.E.W. Appropriations Act for fiscal ©
years 1978 and 1979, federal reimbursement from the funds
appropriated by Congress is not available for abortions
except under certain very limited cireumstances.—/
Y The Hyde Amendment provides that:
[N] one of the funds provided for in this paragraph
shall be used to perform abortions except where
the life of thé mother would be endangered if the
fetus were carried to term; or except for such
medical procedures necessary for the victims or
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.
4
Prior to July, 1978, Massachusetts opted to pay for
all abortions obtained by Medicaid eligible women,
without regard to the reason why the abortion was
performed. On July 8, 1978, however, funding for
Medicaid abortions was abruptly terminated by the
Massachusetts legislature. The appropriation of funds for
Medicaid for fiscal year 1979 contained a rider which
prohibited the use o, the appropriated funds for abortions
except where "necessary to prevent the death of the
mother" or in certain cases of incest or forced rape.
Mass. Stat. 1978, c. 367 §2, Item 4402-5000.
Petitioners Jane Doe and Jane Doe II are indigent
women who are eligible for Medicaid. At the time of the
filing of this action, both were pregnant and wished to
obtain an abortion. A physician had examined each of
them and had determined in each case that continuation
of the pregnancy posed a substantial threat to the
woman's health and that an abortion was medically
necessary, although not necessary to save her life.
Petitioner Preterm, Inc., is a non-profit corporation which
operates a clinic at which it provides gynecological
services, including abortions, to indigent women.
Petitioners Goldstein and Lee are Board-certified
obstetricians and gynecologists practicing in
Massachusetts. Petitioner Massachusetts Welfare
Recipients for Welfare Reform is an association of public
assistance recipients including Medicaid eligible women,
who may seek medically necessary abortion services.
Petitioner Planned Parenthood League of Massachusetts is
an unincorporated association which provides abortion
counselling and referral.
On July 13, 1978, the petitioners brought this class
action in the United States District Court for the District
of Massachusetts, alleging that Massachusetts’ restriction
on funding for Medicaid abortions was invalid under Title
XIX of the Social Security Act and the United States
Constitution.—2/ The jurisdiction of the district court was
invoked under 28 U.S.C. §1331 and 28 U.S.C. §1343. They
sought preliminary and permanent injunctions restraining
the enforcement of c. 367 and ordering the defendants to
pay for all medically necessary abortions.
On the basis of the affidavits submitted by the
petitioners, the district court, on July 28, 1978, entered an
order granting in part and denying in part their request for
preliminary relief. The district court found that ¢. 367
violated the requirements of Title XIX by failing to
provide funding for medically necessary abortions, but
declined to order the defendants to pay for Medicaid
abortions other than those for which federal
a The action was brought on behalf of two classes. One
consisted of all Medicaid eligible pregnant women for
whom an abortion is medically necessary but is not
necessary to prevent death. The other consisted of
physicians and other Medicaid providers who are willing to
perform abortions for Medicaid eligible women which are
medically necessary but not necessary to prevent death.
Both classes were certified by the district court.
reimbursement would be available under the provisions of
the Hyde Amendment.
The petitioners promptly filed a notice of appeal
and, on July 31, 1978, moved for an injunction pending
appeal in the United States Court of Appeals for the First
Circuit. On August 7, 1978, the court of appeals granted
the motion and entered an order modifying the order of
the district court to require the defendants to provide
funding for all medically necessary abortions.
While the appeal was pending in the First Circuit,
the defendants, with the assent of the petitioners, filed a
motion in the district court seeking consolidation of the
hearing on the motion for a preliminary injunction with
the hearing on the merits. On September 5, 1978, the
district court entered an order certifying the two classes
represented by the plaintiffs and, on the following day,
allowed the defendants request for consolidation
Although the petitioners’ motion for a preliminary
injunction was argued in the district court with a similar
motion filed by the plaintiffs in Jaffe v. Sharp, (Civ.
Action No. 78-1637-C), the two cases were not
consolidated by the district court and are procedurally
distinct in several important respects.—2/ First, the
3/ William Baird, Parents' Aid Society, Inc., and Susan
Doe, who are plaintiffs in Jaffe, have seperately filed a
petition for certiorari in this court. Baird v. Sharp, No.
781298. The district court had dismissed their claims on
the ground that they lacked standing to challenge the
statute, but the court of appeals vacated the dismissal and
7
affidavits filed by the petitioners in the instant case, and
cited by the court of appeals, see p. 10a, infra, which are
the only evidence in the record concerning the meaning of
the standards articulated in the Medicaid Statute, the
Hyde Amendment and the Massachusetts Statute, were
filed only in this action and are not a part of the record in
the Jaffe case. Furthermore, while Jaffe was brought as
a class action, it was not certified as such by the district
court.
All parties appealed from the final judgment
entered by the district court, and the appeals were
consolidated with the appeals which were pending in the
court of appeals. On January 15, 1979, a divided panel of
the United States Court of Appeals for the First Circuit
affirmed the decision of the district court. The court held
that the Massachusetts law -estricting the expenditure of
state funds for abortions was inconsistent with the
requirements of the Medicaid act, but that the Hyde
Amendment altered the substantive provisions of the
Medicaid statute. Judge Bownes dissented on the ground
that the majority opinion "ignored the clear teaching of
Tlennessee] V{alley] Aluthority] v. Hill, (98 S.Ct. 2279
(1978)] ."
remanded the case to the district for a further hearing on
that issue.
te
Reasons for Granting the Writ
I. CERTIORARI SHOULD BE GRANTED TO RESOLVE
AN IMPORTANT QUESTION OF FEDERAL LAW AF-
FECTING.THE AVAILABILITY OF PUBLIC FUNDING
FOR ABORTIONS
This case presents a question of federal law which
will determine whether public funding will be available for
medically necessary abortion services for Medicaid
recipients. The principal question--whether a
congressional restriction on the use of federal funds to
pay for such services affects the obligation of
participating states to provide them—has not previously
been before this Court. Although this Court has
previously considered state refusals to fund elective
abortions, the consequences of the withdrawal of funding
in this case are dramatically and significantly different.
Unlike the restrictions on funding upheld in Beal v. Doe,
432 U.S. 438 (1977), and Maher v. Roe, 432 U.S. 464
(1977), the result of refusing to provide funding for
medically necessary abortions is to compel an indigent
woman to continue a pregnancy which indisputably poses a
threat to her health.
A. This Case Involves a Question of Federal Law Af-
fecting the Validity of Restrictions on Medicaid Funding
for Medically Necessary Abortions Which Have Been
Adopted by a Majority of the States.
Notwithstanding the fact that Beal and Maher dealt
only with restrictions on elective abortions which, by
definition, posed no threat to the woman's health, and
notwithstanding this Court's pointed observation in Beal
that the exclusion of medically necessary abortions would
present "serious statutory questions," 432 U.S. at 444, the
federal government and a large number of states have so
restricted the use of Medicaid funds for abortions that
public funds for medically necessary abortions are now
generally unavailable.
In 1976, Congress approved an appropriations
rider, P.L. 94-439 §209, popularly known as the Hyde
Amendment, which restricted the availability of federal
Medicaid funds for abortion in fiscal year 1977 to cases
where the life of the mother would be endangered.4/ The
fiscal year 1978 Hyde Amendment similarly restricted the
use of federal Medicaid funds for abortion, but also
permitted federal reimbursement in cases of rape or
incest and cases in which two physicians could certify that
"severe and longlasting physical health damage" would
result if the pregnancy were carried to term.—>/ A
£/ The first Hyde Amendment would have taken effect
on October 1, 1976, but a federal district court in New
York entered a preliminary injunction preventing
enforcement of its restrictions. McRae v. Mathews, 421
F.Supp. 533 (E.D. N.Y. 1976). This Court vacated the
decision of the district court and remanded for further
consideration in light of Maher and Beal. Califano v.
McRae, 433 U.S. 916 (1977).
a The constitutionality of the 1978 Hyde Amendment
was the subject of an extensive trial in McCrae v.
Califano, supra, n. 4 (E.D. N.Y., No. 76-1804). The trial
has been completed, and the case is awaiting decision by
the district court.
©
10
similar rider was attached by Congress to the fiscal year
1979 Medicaid appropriation. P.L. 95-480 §210, 92 Stat.
1586.
Restrictions on Medicaid funding for abortions have
been adopted in at least thirty-seven states. Some, like
Massachusetts have limited the abortion services available
under their Medicaid programs to those few cases where it
can be shown that an abortion is necessary to prevent a
woman's death—9/ or that continuation of the pregnancy
would endanger her lite —/ Following the adoption of
/ The legislatures of eight states have restricted Medi-
caid funding to cases in which an abortion is necessary to
prevent the death or to preserve the life of the mother.
Massachuset's, Mass. St. 1978 c. 367 §2, Item 4402-5000;
Louisiana, La. Rev. Stat. § 40:1299.35; Pennsylvania, Pa.
Act No. 1978-16A, Pa. Act No. 1978-149; New Jersey, N.J.
Stat. Ann. 30:4D-6.1; Missouri, Mo. Rev. Stat.§208.153; 0-
linois, Ill. Rev. Stat. Supp. (1977) ch. 23 §§5-5, 6-1, 7-1;
Kentucky, Ky. Rev. Stat. §205.010; South Dakota, S. Dak.
Com. Laws Ann. §28-6. Five other states have similarly
restricted abortion funding by regulation: Connecticut,
Florida, Nebraska, North Dakota and Rhode Island.
7/
— The legislatures of four states have restricted Medic-
aid funding for abortions to cases in which continuation of
pregnancy would endanger the life of the mother. Iowa,
Social Services Appropriation Bill, §16, Item 4 (June 22,
1978); Minnesota, ch. 508, Minn. Laws (1978); Utah, Utah
Code Ann. §55-5-3; Wyoming, Appropriations Bill, §25,
(tem 6 (March 17, 1978). There are regulations to the same
effect in at least two states, Kansas and New Mexico.
ll
the fiscal year 1978 Hyde Amendment language, a number
of states adopted standards which are similar to those
contained in the Hyde Amendment as the funding criteria
for their state plans.—°/
The state and federal courts which have reviewed
state restrictions on Medicaid funding for abortions have
been nearly unanimous in finding such restrictions to be
inconsistent with the substantive provisions of Title XIX
of the Social Security Act.—2/ While the decision of the
8/ At least three states have enacted legislation adop-
ting the Hyde standards. California, 1978 Appropriations
Bill, ch. 359 (July 6, 1978); Tennessee, Fiscal Year 1978-
1979 Appropriations Bill §57 (May ll, 1978); Wisconsin,
Wisc. Laws 1977, ch. 245 (April ll, 1978). Fifteen other
states have adopted regulations which embody the Hyde
Amendment standards: Alabama, Arkansas, Delaware,
Georgia, Indiana, Maine, Mississippi, Montana, Nevada,
New Hampshire, Ohio, Oklahoma, South Carolina, Texas
and Vermont.
- Several of the decided cases which have addressed
the issue are summarized in note 1 of the opinion of the
court of appeals. pp. 2a-3a, infra. Other decided cases
are Committee to Defend Reproductive Rights v. Myers,
(Cal. Ct. of Appeals, No. 45066, decided October 10,
1978)(Order requiring the state to pay for medically
necessary abortions pending appeal); Right to Choose v.
Byrne, (Superior Ct. of N.J., Chancery Div., MlIddlesex
Co., No. C-3817-77, decided January 10, 1979) (Title XIX
requires state to pay for medically necessary abortions.);
Roe v. Casey, (E.D.Pa., No. 78-2214, decided December 21,
1978)(Final judgment requiring payment for medicall
necessary abortions); see also, Zbaraz v. Quern, (7th
Circuit, Nos. 78-1669, 1709, 1890, 1891, decided February
13, 1979), and Frieman v. Walsh, ( W.D. Mo., No. 77-4171-
CV-C, decided January 26, 1979), discussed at note 10,
12
First Circuit was in accord with prior cases on this ques-
tion, see pp. 5a-lla, infra, the Court reached a different
result because, in its view, the Hyde Amendment had
"altered" the broad mandate of the Medicaid Act in those
cases where the treatment sought is an abortion.12/
Thus, the validity of the myriad state restrictions on
Medicaid funding for abortion turns on the question of the
effect of the Hyde Amendment on the substantive pro-
visions of Title XIX. If Title XIX is unaffected by the
Hyde Amendment, the state restrictions on Medicaid
funds would be invalid, but if the rider has indeed
amended or otherwise "altered" Title XIX, federal law
would permit wholesale restrictions on state Medicaid
funding for abortions._!/ This case presents precisely that
question. Given the number of states which have adopted
such restrictions, it is a question of substantial
importance which ought to be resolved by this Court.
infra.
Only one court has reached the opposite conclusion.
D.R. v. Mitchell, (D. Utah, C 77-0156, decided June 30,
1978.) Appeal pending (10th Circuit, No. 78-1675).
10/ Subsequent to the first Circuit's decision, the Seventh
Circuit has held that Title XIX has been amended by the
Hyde Amendment, Zbaraz v. Quern, supra, and the
District Court for the Western District of Missouri has
held that the requirements of Title XIX were sus pended
by the Hyde Amendment. Frieman v. Walsh, supra.
y Such state restriction would still be subject to con-
stitutional challenge. Both the Firsi Circuit and the
Seventh Circuit expressed doubt as to the constitutional-
ity of the Hyde Amendment, but left that issue to be
resolved by the district courts on remand.
13
B. The Ruling By The Court Of Appeals That The
Hyde Amendment Alters Title XIX Will Have
Significant And Deleterious Public Health
Consequences.
The result of the various restrictions on Medicaid
funding for abortions is the denial of abortions to women
for whom the procedure is medically necessary.
Petitioners' affidavits in the district court showed that
Massachusetts' "necessary to prevent death" standard
would result in the elimination of virtually all abortions
under Medicaia!2/ and that the adoption of the Hyde
Amendment's standard of "severe and long-lasting physical
health damage" would be nearly as restrictive.t?/ First,
the Hyde Amendment bars payment for entire categories
of abortions services which are medically indicatea.14/
12/
— According to the uncontrovertéd affidavit of petition-
ers' expert, there are many women for whom an abortion
is medically indicated because continuation of pregnancy
poses a threat to their health, but only " a very small
group of women for whom continuation of pregnancy will
almost surely result in death." Affidavit of Phillip G.
Stubblefield, M.D.
/ The experience in states which have adopted these
standards bears this out. ‘An analysis of HEW data
concerning medicaid abortions which was submitted to the
district court shows that the reduction in the number of
medicaid abortions performed in states which adopted the
Hyde standard was virtually the same as in states
employing a "necessary to prevent death" standard.
Affidavit of Frederick S. Jaffe.
/ The Hyde Amendment does not cover abortions which
are necessary to prevent mental health damage to the
mother, no matter how severe. See pp. 20a-22a, infra. It
14
Second, the certification required by the rider prevents
payment for many medically indicated abortions in the
early stages of pregnancy when the threat to the
mother's health is less definite, but the risk of abortion
is minimal. See, Roe v. Wade, 410 U.S. 113, 145-150, 163
(1977) These restrictions simply do not permit a
physician to exercise his or her judgment in light of all
factors relevant to the patient's well-being, see, Doe v.
Bolton, 410 U.S. 179, 192 (1977), but impose instead
arbitrary standards which are inconsistent with
accepted medical practice.
The elimination of public funding for most
medically necessary abortions will have drastic public
health consequences. In Massachusetts alone, thousands
of women will be affected, !2/ but numbers alone do not
adequately reflect the severity of the result. This is
not simply a question of favoring live birth. The result
of refusing to provide funding for medically necessary
abortions is that it compels an indigent woman to
continue a pregnancy which poses a threat to her
health. Moreover, this burden is imposed on a group —-
impoverished women -- for whom pregnancy poses
is limited as well to cases in which there is a threat to
maternal health; it does not provide for an abortion in
cases where the fetus is so deformed or defective as to
be incapable of meaningful life.
B/ It was stipulated in the district court that approx-
imately 6000 medicaid abortion per year were
performed in Massachusetts during fiscal year 1977 and
fiscal year 1978.
15
special health dangers./9/ The predictable effect of these
restrictions is an increase in maternal and infant
mortality and an increase in the number of children born
with severe birth def ects./U/
Il. THE DECISION OF THE COURT OF APPEALS--THAT
CONGRESS MADE IMPORTANT SUBSTANTIVE
CHANGES IN THE MEDICAID LAW THROUGH AN
APPROPRIATIONS RIDER--PLAINLY CONFLICTS
WITH THIS COURT'S DECISION IN TVA V. HILL AND
THE OVERWHELMING MAJORITY OF THIS COURT'S
PRIOR RULINGS.
The court of appeals held that a rider attached to a
general federal appropriations bill effected a major
substantive change in the Medicaid statute. In so holding
the court contravened prior rulings of this Court
concerning repeals by implication in general and the role
of appropriations measures in effecting repeals, in
particular. See, e.g., United States v. Continental Tuna
Corp., 425 U.S. 164 (1976); Georgia v. Pennsylvania R. Co.
324 U.S. 439 (1945); United States v. Borden Co., 308 U.S.
308 U.S. 188 (1939); Posadas v. National City Bank, 296
U.S. 497 (1936). The principles articulated in these cases
were dramatically reaffirmed by the Court just last term.
¥/ Poor women are simply less healthy than those who
are more affluent. They do not receive the same quality
of medical care and are much more likely to develop com-
plications during pregnancy. Affidavit of Phillip G.
Stubblefield, M.D.
/ See generally, L.R. Berger, "Abortions in America:
The Effects of Restrictive Funding," 298 N.E. Journal of
Medicine 1474 (1978).
16
In Tennessee Valley Authority v. Hill, supra, the Court
held that the Endangered Species Act of 1973, under which
protection against extinction had been extended to a small
fish known as the snail darter, was not repealed or
amended by continuing appropriations for the purpose of
completing work on the Tellico Dam, a multi-million
dollar public works project which threatened the critical
habitat of the fish.
In reaching this conclusion, the Court underscored an
important institutional concern. Where Congress has not
made absolutely clear its intention to repeal existing
legislation, a federal court ought not to find that the law
has been repealed. Where an appropriations rider is
claimed to effect such a repeal, the court should be
especially wary. An appropriation is simply a yearly
allocation of funds. The appropriation process does not
provide for detailed hearings, specialized data or a careful
inquiry into the impact of a particular appropriations
measure on existing legislation. As a result, a court is
forced to speculate about congressional intent. Such
speculation is plainly improper.
-.-in our constitutional system the commitment to
the separation of powers is too fundamental for us
to preempt congressional action by judicially
decreeing what accords with "common sense and
the public weal." Our Constitution vests such
responsibilities in the political branches. 98 S.Ct.
at 2302.
Accordingly, in TVA v. Hill this court vigorously
applied two well-established rules of statutory
17
construction. The first is that in interpreting a statute, a
court must begin with the plain meaning of the language
used by the legislature. The second is the "cardinal rule"
that repeals by implication are not favored, which "applies
with even greater force when the claimed repeal rests
solely on an appropriations act." 98 S.Ct at 2299. In this
case, the court below disregarded both rules of
- construction and reached a result which cannot be
reconciled with the holding or the rationale of TVA v.
Hill.
The court of appeals held that a restriction on the use
of federal funds appropriated for fiscal year 1978 for
abortions effected a major change in the Medicaid
Statute./8/ In so ruling, the court igriored the plain and
explicit language of the appropriations rider which, by its
express terms, was only a limitation on the use of federal
funds. 19/ And, after having improperly gone beyond the
plain language of the statute, the court mistakenly
concluded from the fragmentary legislative history that
#/ The ruling of the court of appeals permits, for the
first time, the elimination of a particular form of
treatment based on diagnosis or condition. Cf. 42 C.F.R.
440.230(c).
D/ On this point, the court of appeals seriously misin-
terpreted one of the few cases in which an appropriations
rider may effect a change in substantive legislation.
United States v. Dickerson, 310 U.S. 554 (1940). Dickerson
did not involve a repeal by implication. The appro-
priations rider in that case specifically referred to the
principal statute and explicitly suspended its provisions
for the fiscal year.
18
the intent to repeal the general requirements of the
Medicaid Act was clear.
In fact, the intent of Congress in enacting the Hyde
Amendment was anything but clear. There were neither
committee reports nor conference reports. (App. 14a).
The legislative history consists entirely of the floor
debates concerning the amendment, which have been
characterized in an opinion of Attorney General Bell as
"contradictory" and "inconclusive." 43 Fed. Register 4835
(February 3, 1978) Even the Secretary of Health,
Education and Welfare has refused to take the position
taken by the court of appeals that this rider absolves the
states of their obligation to fund certain abortions.22/ No
data on the profound health implications of the restriction
of abortions was offered. Nor was there any consideration
of the financial impact that abortion restrictions wiil
have, with the concomitant increase in childbirth.
Contrary to the conclusion of the Circuit Court, all
that the legislative history of the Hyde Amendment
demonstrates is the danger of relying on the appropri-
ations process to determine congressional intent. Without
any clear guidance from Congress, the court substituted
its judgment of what accorded with "common sense and
the public weal" for that of Congress.
2 In its final regulations interpreting the Hyde
Amendment, the Department describes the states'
obligations under Medicaid as a "seperate question." 43
Fed. Reg. 31875 (July 21, 1978).
19
Conclusion
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
John Reinstein
Massachusetts Civil Liberties
Union Foundation
68 Devonshire Street
-Boston, Massachusetts 02109
(617) 742-8020
Nancy Gertner
Silverglate, Shapiro & Gertner
33 Broad Street ;
Boston, Massachusetts 02109
(617) 723-2624
Barbara Sard
Greater Boston Legal Services
466 Blue Hill Avenue
Roxbury, Massachusetts 02121
(617) 442-0211
20
‘la
United States Court of Appeals
For the First Circuit
No. 78-1324
PRETERM, INC., et al.,
PLAINTIFFS, APPELLANTS,
v.
MICHAEL S. DUKAKIS, et al,
DEFENDANTS, APPELLEES.
No. 78-1325
PARENT’S AID SOCIETY, INC., et al.,
PLAINTIFFS, APPELLANTS,
v
ALEXANDER E. SHARP II,
DEFENDANT, APPELLANT.
No. 78-1326
PARENT’S AID SOCIETY, INC., et al,
PLAINTIFFS, APPELLANTS,
v.
ALEXANDER E. SHARP II,
DEFENDANT, APPELLEE.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Anprew A. Carrrey, U.S. District Judge]
Before Corrin, Chief Judge,
CaMPBELL and Bownss, Circuit Judges.
Nancy Gertner, with whom Silverglate, Shapiro & Gertner,
Barbara Sard, and John Reinstein, were on brief, for Preterm,
Inc., et al.
2a
8. Stephen Rosenfeld, Assistant Attorney General, with whom
Francis X. Bellotti, Attorney General, and Garrick F. Cole, Assist-
ant Attorney General, were on brief, for Sharp, et al.
Joseph J. Balliro, with whom Joan C. Schmidt, was on brief, for
Parent’s Aid Society, Inc., et al.
Joseph J. Hurley and Nutter, McClennen & Fish on brief for
William A. Lynch, M.D., et al., amici curiae.
January 15, 1979
‘ Corrin, Chief Judge. In this case we are called upon to
assess the validity, in terms of compliance with the federal
Medicaid Act, of Chapter 367, § 2, Item 4402-5000 of the
Massachusetts Acts of 1978. Chapter 367 is an appropri-
ations provision, limiting the expenditure of state funds
for abortions to those abortions ‘‘which are necessary to
prevent the death of the mother’’ and to those procedures
“‘necessary for the proper treatment of the victims of forced
rape or incest’’ if the incident is properly reported within
thirty days.
At issue, as well, is the impact on the Medicaid Act and
state plans thereunder of the Hyde Amendment, Section
209 of Pub. L. 95-205; 91 Stat. 1460 (Dec. 9, 1977), first
enacted as a rider to-the FY 1977 Health, Education and
Welfare appropriations bill. The Hyde Amendment for
FY 1978 prohibits federal funding for abortions except
‘‘when the life of the mother would be endangered’’, when
the woman is a ‘‘victim of rape or incest’? and reports the
incident ‘‘promptly’’ and in instances where ‘‘severe and
long-lasting physical health damage to the mother would
result if the pregnancy were carried to term when so deter-
mined by two physicians.’”?
1A number of lower courts have considered the compliance of
state plans, similar to that of Massachusetts, with the Medicaid
Act and have reached differing results, See, e.g., Emma G. v.
Edwards, Civ. No. 77-1342 (E.D. La. Nov. 27, 1978) (court issued
preliminary injunction enjoining enforcement of statute which
barred use of state funds for abortions **except when the abortion
is medically necessary to prevent the death of the mother’’) ;
Roe v. Casey, Civ. Action No. 78-2214 (E.D. Pa. June 30, 1978)
3a
The district court found that Chapter 367 violated spe-
cific provisions and the basic thrust of the Medicaid Act
by failing to provide for abortions that were ‘‘medically
necessary’’. However, because the court considered it
‘‘anomalous’’ to impose upon the state the obligation to
fund ‘‘medically necessary’’ abortions for which the Hyde .
Amendment had prohibited federal funding, its prelimi-
nary injunction modified Chapter 367 to require state pay-
ment for at least those abortions funded under the Hyde
Amendment. The court did not reach the constitutional
arguments of the parties. See Hagans v. Levine, 415 U.S.
528 (1974).
(district court issued temporary restraining order preventing
state from refusing to reimburse providers for medically necessary
abortions) ; D. R. v. Mitchell, Civ. No. 77-1056 (D. Utah June 20,
1978) (court granted state’s motion for summary judgment and
held that Medicaid Act does not require funding of all medically
necessary abortions, but only those when the mother’s life was
endangered, relying in part on the Hyde Amendment’s language) ;
Zbaraz v. Quern, Civ. No. 77C 4522 (N.D. Ill. May 15, 1978) (on
remand from the Seventh Circuit, 572 F.2d 582 (7th Cir. 1978)
(district court enjoined state from denying reimbursement for
therapeutic abortions and found that Hyde Amendment had no
impact on the state’s obligations) ; Smith v. Ginsberg, Civ. No. 75-
0380 CH (S.D. W.Va. May 9, 1978) (district court enjoined en-
forcement of statute to extent it denied reimbursement for neces-
sary therapeutic abortions, ordered parties to brief the Hyde
Amendment issue).
In Doe v. Kenley, No. 78-1330 (4th Cir. Oct. 19, 1978), the
Fourth Circuit considered the ‘‘limited’’ issue of whether a state
which has established a policy for the stated objective of elimi-
nating state medical assistance for nontherapeutic abortions may
implement that policy by requiring a physician to certify that the
woman’s life would be endangered if the pregnancy was carried
to term. It rejected the state’s argument, adopted by the district
court, that the words ‘‘endangerment of life’’ really meant ‘‘en-
dangerment of health’’ and remanded the case directing that an
order be entered clarifying the state’s standard for funding abor-
tions. The court further stated ‘‘that on the facts of this case
we need not reach the statutory and constitutional issues raised
by Doe of whether a state may be compelled by either Title XIX
or the Constitution to fund induced therapeutic abortions.’’ Jd.
slip op. at 12.
Thus, we believe that this court is the first court of appeals to
reach the issues presented by this case.
4a
Preterm, Inc., et al., plaintiffs below, then sought an
expanded injunction pending appeal of the district court’s
preliminary injunction.? We granted that relief, and modi-
fied the district court’s injunction to require the Common-
wealth of Massachusetts to provide funding for abortions
to ‘‘all Medicaid-eligible pregnant women who desire to
obtain an abortion and for whom a physician has deter-
mined that an abortion is a medically-necessary service’’.
Subsequently the district court ordered consolidation of
the preliminary injunction with the merits and entered its
preliminary injunction as a final order. All parties have
appealed, and it is the district court’s final order that is
before us on review. We turn first to the question whether
Chapter 367 violates the requirements of the Medicaid Act
ky providing for abortions, in circumstances other than
pregnancy resulting from forced rape or incest, only when
the abortion is ‘‘necessary to prevent the death of the
mother’’.
? The named plaintiffs in No. 78-1324 are Preterm, Inc., a non-
profit corporation providing clinical services, including abortions,
for indigent women; board-certified obstretricians and gynecolo-
gists practicing in Massachusetts; a Medicaid-eligible pregnant
woman residing in Massachusetts; Massachusetts Welfare Recipi-
ents for Welfare Reform, an association of public assistance recipi-
ents; and Planned Parenthood League of Massachusetts, an un-
incorporated agency providing abortion counseling. In Nos. 78-
1325 and 78-1326, the named plaintiffs, some of whom were dis-
missed below for lack of standing, see infra, are several Medicaid-
eligible pregnant women; a Massachusetts physician and Medicaid
provider; and an abortion counselor and director of Parents Aid
Society, Inc., a non-profit Massachusetts corporation providing abor-
tion counseling, which is also a plaintiff. The defendants in these
cases are various officials of the Commonwealth of Massachusetts.
The district court also certified, pursuant to Fed. R. Civ. P.
23(c) (1), two classes of plaintiffs in the Preterm action: the first
consisting of ‘‘all Medicaid-eligible pregnant women who desire to
obtain an abortion and for whom a physician has determined that
an abortion is a medically-necessary service but for whom an abor-
tion is not necessary to prevent death’’, and second, ‘‘all physicians
and other Medicaid providers . . . willing to perform abortions for
women who fall within the first class.’’
5a
I. The Requirements of the Medicaid Act
The Medicaid Act, Title XIX of the Social Security Act
of 1965, operates to enable participating states, through
the use of federal funds, to provide medical services to
welfare recipients (the ‘‘categorically needy’’) and if the
state chooses, to other needy recipients (the ‘‘medically
needy’’). See Beal v. Doe, 432 U.S. 438, 440 n. 1 (1977);
42 U.S.C. § 1396a(a)(10)(A), (C). Although a state’s par-
ticipation in Medicaid is voluntary, if it chooses to adopt a
plan it must do so consonant with the requirements imposed
by the Medicaid Act. See Beal v. Doe, supra, 432 U.S. at
441; White v. Beal, 555 F.2d 1146, 1149 (3d Cir. 1977);
Rush v. Parham, 440 F. Supp. 383, 385 (N.D. Ga. 1977).
The plaintiffs below argue, and the district court found,
that abortions, when ‘‘medically necessary’’ as determined
by a physician are within the category of services which a
state must provide. The state, on the other hand, contends
that participating states are afforded great latitude in de-
ciding which services will be furnished under their plans,
and maintains that the Act nowhere requires a state to
provide all ‘‘medically necessary”’ services. The disagree-
ment between the parties is thus a fundamental one, and
one which our study of the statute has not easily resolved.
Our analysis begins with the opening section of the Act,
which both authorizes an appropriation and sets forth a
general statement of purpose:
“*42 U.S.C. § 1396. Appropriation
For the purpose of enabling each State, as far as prac-
ticable under the conditions of such State, to furnish
(1) medical assistance on behalf of families with de-
pendent children and of aged, blind, or disabled indi-
viduals, whose income and resources are insuf ficient
to meet the costs of necessary medical services, and
(2) rehabilitation ..., there is hereby authorized to
be appropriated . . . .”” (emphasis added).
6a
The district court and other courts which have found a
requirement within the Medicaid Act that states provide
all ‘‘medically necessary’’ services have relied heavily on
this section. See, e.g., Rush v. Parham, supra, 440 F. Supp.
at 389. It does not seem, however, that the words ‘‘neces-
sary medical services’’ are properly read as a substantive
requirement imposed on the states. Instead, this section
merely specifies for whose benefit federal funds are to be
appropriated—those ‘‘individuals, whose income and re-
sources are insufficient to meet the costs of necessary medi-
cal services.’’ 42 U.S.C. § 1396. See also 42 U.S.C. § 1396a
(a)(10)(C). Furthermore, the section apparently contem-
plates some flexibility in the Act’s demands on each state,
stating that its purpose is to enable a state to furnish
medical assistance ‘‘as far as practicable under the condi-
tions of such State.’’
Our view finds support from the structural composition
of the Act. Section 1396a is the provision which details-the
required contents of a state plan for medical assistance.
Among the 37 items listed, we find no mandate that all
‘‘medically necessary’’ services be provided. We therefore
hesitate to draw the words ‘‘necessary medical services”’
from their context—an appropriations section—and in ef-
fect transport them into a contents section requirement.
Although we are unable to discover a statutory require-
ment that states provide medically necessary services, we
do find guidance within the statute, albeit less explicit, for
deciding this case. Section 1396a requires that a state plan
for medical assistance provide five general categories of
medical services to the categorically needy, enumerated in
§ 1396d(a): (1) inpatient hospital services, (2) outpatient
hospital services, (3) other laboratory and x-ray services,
(4) skilled nursing facilities, screening and treatment for
persons under the age of 21 and family planning services
Ja
and supplies, and (5) physicians’ services.’ In Beal v. Doe,
supra, 432 U.S. 438, the Supreme Court, deciding whether
_ a state plan which denied funds for abortions unless they
were certified by a physician as ‘‘medically necessary’’
was violative of the Medicaid Act, stated that: ‘‘Title XIX
[Medicaid] does not require states to provide funding for
all medical treatment falling within the five general cate-
gories’’. But, ‘‘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).’’ Jd. at 440-41. The
Court further emphasized that the Act ‘‘confers broad dis-
cretion on the States to adopt standards for determining
the extent of medical assistance, requiring only that such
standards be ‘reasonable’ and ‘consistent with the objec-
tives of the Act.’ ’’, id. at 444, and concluded that the state’s
‘‘refusal to extend Medicaid coverage to nontherapeutic
abortions is not inconsistent with Title XIX.”’ Jd. at 447.
The Court’s opinion contains a dictum relied on by the
district court: ‘‘[a]lthough serious statutory questions
might be presented if a Medicaid plan excluded necessary
medical treatment from its coverage, it is hardly inconsis-
tent with the objectives of the Act for a State to refuse to
fund unnecessary—though perhaps desirable—medical ser-
vices.’’ Id. at 444-45 (emphasis added to introductory
clause). This language is indeed relevant to the issue at
hand—the validity of a state plan which allows payment
for abortion services in other than cases of rape or incest
only when ‘‘necessary to prevent the death of the mother’’;
but we do not believe that we should read this dictum as
signalling a flat rule that all services within the five general
* States are given a greater choice in determining the types of
services that it provides to the “medically needy’’. 42 U.S.C.
§ 1396a(a) (13) (C).
8a
categories deemed ‘‘medically necessary’? by a patient’s
physician must be provided by the state plan.
Such a reading, permitting the most varied content to
the words ‘‘necessary medical services’”’, the variations
being theoretically limited only by the diversity: of physi-
cians, would seem at war with the goals of consistency and
fairness in the administration of the statute. We see two
levels of judgment as to medical necessity in the statutory
scheme. The first is the macro-decision by the legislature
that only certain kinds of medical assistance are deemed
sufficiently necessary to come under the coverage of its
plan. The second is the micro-decision of the physician,
that the condition of his patient warrants the administer-
ing of a type of medical assistance which that plan makes
available. Our task here is to test the judgment of the
Massachusetts legislature as to medical necessity, i.e., was
its decision to limit state funded abortions, in other than
cases of rape or incest, to those necessary to save the life
of the woman ‘‘reasonable’’ and ‘‘consistent with the ob-
jectives of [Title XIX]’’? 432 US. at 441, 444; see 42 U.S.C.
§ 1396a(a) (17).
The regulations promulgated by the Department of
Health, Education and Welfare pursuant to the Medicaid
Act and having the force of law, detail the permissible
and impermissible ways in which a state may exclude or
diminish payment for certain services in its plan. 42 C.F.R.
§ 440.230 (1978) provides that:
‘(a) The plan must specify the amount and duration of
each service that it provides.
(b) Each service must be sufficient in amount, dura-
tion, and scope to reasonably achieve its purpose. |
(c) (1) The medicaid agency may not deny or reduce
the amount, duration, or scope of a required ser-
vice under §§ 440.210 [for the categorically needy ]
and 440.220 [for the medically needy] to an other-
9a
wise eligible recipient solely because of the diag-
nosis, type of illness, or condition.
(2) The agency may place appropriate limits on
a service based on medical necessity or on utiliz-
ation control procedures.
The plaintiffs below maintain that the limitations imposed
by Massachusetts on abortion services render those services
insufficient in ‘‘amount, duration and scope’’ to reasonably
achieve their purpose, and that the limitations are based
salely on the type of medical condition involved rather than
on determinations of medical necessity.
In White v. Beal, 555 F.2d 1146 (3d Cir. 1977), the Third
Circuit construed this regulation in determining whether a
state plan, which made eyeglasses available to persons who
needed them because of eye pathology but denied them to
persons suffering from other types of visual impairment,
violated the Medicaid Act. The court held that the plan
was violative of the Act because it distributed the service
in a manner which did not bear a rational relationship to
the ‘‘underlying federal purpose of providing the services
to those in greatest need of it’’, id. at 1151. Citing 45 C.F.R.
§ 249.10(a) (5) (i), the earlier codification of the regulation,
it stated that ‘‘[t]he regulations permit discrimination in
benefits based upon the degree of medical necessity but not
upon the medical disorder from which the person suffers.”’
Td. at 1151-52.
We think that the limitations imposed by Chapter 367
on abortion services similarly violate the purposes of the
Act and discriminate in a proscribed fashion, although per-
haps less obviously than did the plan in White v. Beal,
supra. It could perhaps be argued that the Massachusetts
plan reserves abortion services to those in greatest need
—women who will die without an abortion—and denies it
to those who need it less—women who will suffer damage
to their health, no matter how grievous, but who will sur-
10a
vive without the abortion. But we do not believe that the
Medicaid Act contemplates or sanctions anything so stark.
When a state singles out one particular medical condition
—here, a medically complicated pregnancy—and restricts
treatment for that condition to life and death situations
it has, we believe, crossed the line between permissible
discrimination based on degree of need and entered into
forbidden discrimination based on medical condition.
The Medicaid system was established for the purpose of
enabling a state, with federal participation, to provide
medical assistance to eligible individuals in need of treat-
ment and unable to pay for it. See 42 U.S.C. § 1396. We
find it ‘‘unreasonable’”’ and wholly ‘‘[in]eonsistent with
the objectives of the Act’’, 42 U.S.C. § 1396a(a)(17), for
a state to provide abortion services and then, with limited
exceptions for victims of rape and incest, deny it to all
those who will not die without it. We know of no other
instance where a legislative decision to pay for medical
care is based on the distinction between life and death.
If only those suffering at death’s door from sickle cell
anemia or syphilis could receive publicly provided medical
care, but not those condemned to a lifetime of dependency,
one would be hard put to discern any rational social objec-
tive being thereby served. So we think here.* In addition,
Chapter 367 is inconsistent with the Act, which provides
for a central role fcr the physician in determining proper
treatment, by circumscribing his professional judgment so
drastically. As a physician’s affidavit submitted on behalf
of the plaintiffs below attests ‘‘fa] standard of medical
necessity which considers only the certainty or likelihood
*The limitations in the Massachusetts Act clearly cannot be
justified as a cost-saving mechanism. See White v. Beal, 555 F.2d
1146, 1150 (3d Cir. 1977). It is uneontroverted that the costs of
medical treatment necessary when even healthy pregnancies are
carried to full term exceed the costs of therapeutic—or even elee-
tive—abortions. See Maher v. Roe, 432 U.S. 464, 478-79 (1977).
lla
of a patient’s death is alien and antithetical to medicine in
general. I know of no area of medical practice in which
a physician exercises professional responsibility solely in
terms of life and death assessments.”’
Accordingly, we conclude that Chapter 367 fails to pro-
vide abortion services consistent with the requirements of
the Medicaid Act. We now turn to the question of the
impact of the Hyde Amendment on state plans adopted
}'ursuant to that Act.
II. The Impact of the Hyde Amendment
The Hyde Amendment, the name given to language in-
serted into the FY 1977 and 1978 Health, Education and
Welfare appropriations bills, in its current form prohibits
use of appropriated federal funds for Medicaid abortions
except in specified situations. The first two are similar to
those in Chapter 367—instances where ‘‘the life of the
mother would be endangered’’ and when she is the victim
of rape or incest and reports the incident promptly. The
Hyde Amendment differs from the Massachusetts Act,
however, by providing a third exception—‘‘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.’’®
5 Congress, in the final days of the Second Session of the 95th
Congress, reenacted the identical language in its FY 19799 HEW
appropriations bill.
® Several district courts have commented on the impact of earlier
versions of the Hyde Amendment on the Medicaid Act. In McRae
v. Mathews, 421 F. Supp. 533, 538 (E.D. N.Y. 1976), the court
found that:
‘The manifest fact is that [the Hyde Amendment] is calcu-
lated to stop the provision of abortional services from public
funds; it is not calculated to shift the burden of providing
this medical assistance to the states.’’
Finding probable success on the merits in light of cases which
found plans eliminating elective abortions invalid, the court en-
joined the Secretary of Health, Education and Welfare from deny-
12a
Plaintiffs contend that the Hyde Amendment must be
construed according to its literal terms as authorizing fed-
eral funds for certain limited categories of abortions and
thus shifting the total cost to the states of providing those
abortion services not funded by the Hyde Amendment but
nonetheless required by the Medicaid Act. They maintain
that the Hyde Amendment has no impact on a state’s obli-
gations to provide services required by the Act.
The state, on the other hand, argues that even if this
court should find, as it has, that Chapter 367 contravenes
the Medicaid Act by providing abortions in cases other
than rape or incest only when necessary to prevent the
woman’s death, the Hyde Amendment constitutes a con-
gressional statement that the states need not fund more
abortions than Congress is willing to fund, although they
could choose to do so if they wished. The Hyde Amend-
ment, according to the state, is to be viewed as a policy
decision concerning a state’s obligations to provide pub-
ing Medicaid reimbursement for elective abortions. The case was
vacated and remanded on appeal for further consideration in light
of Maher v. Roe, 432 U.S. 464 (1977) and Beal v. Doe, 432 U.S. 438
(1977). See Califano v. McRae, 433 U.S. 916 (1977) ; 4384 U.S.
1301 (1977).
In contrast, in Doe v. Mathews, 420 F. Supp. 865, 869 (D. NJ.
1976), the court refused to issue a temporary restraining order
preventing the Secretary from enforcing the Hyde Amendment,
in part, because:
“[ Title XIX] was not amended or affected by the Hyde
Amendment. Title XIX remains in force as it stood when
Beal and Klein was decided. The Hyde Amendment affects
the federal appropriation to HEW for fiscal 1977, and its
application is limited to the treatment of items of cost in-
curred by a Medicaid State for which federal funds can be
paid to that State. It has no application to the kinds of items
for, which a State must pay if it has enacted a Medicaid Law.’”
See Doe v. Mathews, 422 F. Supp. 141 (D. D.C. 1976), cert. dis-
missed, 434 U.S. 801 (1977) (court found that plaintiffs had no
standing to sue the Secretary in a Hyde Amendment challenge,
not having demonstrated that state officials would, or could pursu-
ant to Title XIX or the Constitution, deny reimbursement for
abortions other than those provided for in the Hyde Amendment).
13a
licly funded abortions and not as merely a shifting of the
costs of non-Hyde Amendment abortions to the states.
In support of its position, the state points to the congres-
sional debates which preceded passage of the Amendment
as well as the basic structure of the Act, namely joint fed-
eral and state participation in providing medical assistance
to the needy. Apparently relying on this latter factor, the
district court found that it would be ‘‘anomalous’’ to re-
quire states to pay for abortions for which the Hyde
Amendment had withdrawn federal funds and enjoined the
state from refusing to provide abortions for which Hyde
Amendment funds were available. By so ruling, the court
implicitly concluded that the Hyde Amendment should be
read as having a substantive effect on the state’s obliga-
tions under the Medicaid Act and not merely as a shifting
of the responsibility to pay for abortions.
Our inquiry begins with the words of the statute itself,
which if clear, ordinarily obviate the need to resort to ex-
trinsic aids of statutory construction. See Tennessee Valley
Authority v. Hill, 98 S.Ct. 2279, 2296 n. 29 (1978) ; Caminetti
v. United States, 242 U.S. 470, 485 (1917); Massachusetts
Financial Services, Inc. v. Securities Investor Protection,
545 F.2d 754, 756 (1st Cir. 1976). The language of the Hyde
Amendment, on its face, supports the plaintiffs’ position.
The Amendment states that ‘‘none of the funds provided for
in this paragraph shall be used’’ to perform abortions, un-
less they fall within specified categories, and thus reads as
a mere withdrawal of federal funds for certain services.
No mention is made in the provision of any impact on the
state’s obligations. However, when the plain meaning of
a statute produces a result ‘‘plainly at variance with the
policy of the legislation as a whole”’ and ‘‘aid to construc-
tion of the meaning of words, as used in the statute, is
available, there certainly can be ‘no ‘rule of law’ which
forbids its use, however clear the words may appear on
l4a
‘superficial examination.’ ’’ United States v. American
Trucking Associations, Inc., 310 U.S. 534, 543-44 (1939) ;
Massachusetts Financial Services, Inc. v. Securities In-
vestor Protection, supra, 545 F.2d at 756. The construction
urged by the plaintiffs would result in imposing an obli-
gation on the states to fund the total cost of non-Hyde
Amendment therapeutic abortions, a result not consonant
with the basic policy of the Medicaid system under which
the federal government participates in the funding of medi-
cal services provided by the states. See 42 U.S.C. § 1396;
Doe v. Beal, supra, 432 U.S. at 440; White v. Beal, supra,
555 F.2d at 1149. We therefore think it necessary to con-
sider the legislative history of the Hyde Amendment.
The Legislative History
Congressional consideration of the Hyde Amendment
began in the House of Representatives on June 17, 1977
and ended with a Senate debate and vote on a compromise
measure on December 7, 1977. During this six month period
some ten different versions were passed in one of the cham-
bers, see CCH Medicare-Medicaid Reporter {1 28,832, at
9151, and no fewer than 25 roll call votes had been taken
in the House and Senate. Congressional Quarterly, Weekly
Report, Vol. XXXVI No. 5 at 258 (Feb. 4, 1978). There
are neither conference reports nor committee reports; all
we have are the debates and insertions in the Congressional
Record. These, however, if considered as a whole, are illu-
minating. The leaders of both sides in the debate spoke
often and long enough and clearly enough so that there is
no doubt about what the Congress wanted to do and thought
it was doing.
To begin with, there are a few observations to the effect
that all that the Amendment is concerned with is the
expenditure of federal dollars. For example, on the first
day of debate in the House, Congressman Doran said, ‘‘It
15a
simply denies Federal funds for the realization of a per-
sonal... decision... .’’ 123 Cong. Rec. H. 6086 (June 17,
1977). Similarly, Congressman Edwards observed that
‘“‘the only thing over which we have any control is what
we do with Federal dollars.’’ Jd. at 6090. Much later, Con-
gressmen Hyde and Flood made statements to the effect
that the issue at hand concerned the use of federal funds
for abortion. 123 Cong. Rec. H. 10826-30 (Oct. 12, 1977).
See 123 Cong. Rec. S. 11039 (June 29, 1977) (Senators
Bellmon and Stennis). Not only are these the only such
comments in the entire debate which the briefs of the
parties and our own research have unearthed, but even
they are consistent with the conclusion that the Congress
utilized the device of withholding federal funds as the
means of making a substantive change in the law.
Moreover, the record is clear that both houses of Con-
gress were acutely conscious that they were engaging in
substantive legislation. The very first event which took
place in the House of Representatives was the making of
two points of order, the sustaining of the same, and an
amendment by sponsor IIyde simply confining his Amend-
ment to a ban on spending federal funds for abortions, any
abortions. Congressman Hyde then expressed his regret
that the points of order forced him to exclude mother’s-life-
saving therapeutic abortions from his Amendment, adding
that he agreed with those who had said it was unfortunate
to burden appropriation bills with complex issues such as
busing and abortion but that ‘‘The problem is that there
is no other vehicle that reaches this floor in which these
complex issues can be involved. Constitutional amendments
which prohibit abortions stay languishing in subcommittee,
much less committee, and so the only vehicle where the
Members may work their will, unfortunately, is an appro-
priation bill.’’ 123 Cong. Ree. II. 6083 (June 17, 1977).
Subsequently, on August 2, after a candid explanation by
l6a
Congressman Flood that the only way to enable the Amend-
ment to exclude from its proscriptions abortions in cases
of life endangering pregnancies was to restore the original
language, such language was restored and no further points
of order were made. 123 Cong. Rec. H. 8348-49 (Aug. 2,
1977).
In the Senate a point of order was made and the Senate,
by voting that a Senate version of the Amendment was
germane to the subject matter ofthe House bill, thus
satisfying Senate Rule XVI, legitimized its subsequent
legislating. 123 Cong. Rec. S. 11055 (June 29, 1977). Before
the vote was taken, Senator Brooke lodged this protest:
‘‘Mr. President, I urge the Senate to support the
amendment striking all restrictions on the use of
medicaid funds for the performance of abortions.
Such restrictions are a blatant case of legislating on
an appropriations bill, a most unwise practice and
one which I adamantly oppose regardless of the sub-
ject.’’ Id. at S. 11035.’
At the very end of the process Senator Magnuson, a pro-
ponent of fewer restrictions, expressed his unhappiness,
saying pithily, ‘‘I have said many, many times, as sort of
a voice in the wilderness, that this does not belong on the
HEW bill. It is legislation of the rawest nature on an
appropriations—money—bill.’’ 123 Cong. Rec. S. 19440
7 Senator Brooke continued, voicing other objections to the pro-
posed Amendment:
‘‘However, I oppose restrictions on medicaid abortions for
other equally valid reasons. First, the Senate should not
through a funding decision in effect deprive our most vulner-
able and helpless citizens, the poor, of an established constitu-
tional right. Second, the Senate should not so thoughtlessly
try to impose simplistic solutions on so complex an issue.
And third, the Senate should not legislate in a medical area
in which we have absolutely no competence and dictate
medical decisions which a physician and a physician alone
is trained and capable to make.’’ 123 Cong. Rec. 8. 11035
(June 29, 1977).
17a
Dec. 7, 1977). And Senator Stennis, a supporter of greater
restrictions on abortions, complained about the Senate’s
‘‘obscure rules about amendments on appropriations bills,
that contain legislation on appropriations bills’’, and noted
that a ‘‘lot of this type of proposals [sic] are in this bill,
including the point on abortion.’’ Jd. at S. 19445. Senator
Brooke devoted much of his effort in this part of the debate
to making clear ‘‘the legislative intent of the provisions we
are acting upon .... Since [HEW has] not given us any
interpretation, I think we should clarify for them what the
legislative intent is.’’ Jd. at S. 19441. Senator Javits called
the end result of this six month effort ‘‘a milestone in our
legislation’’. Id. at S. 19443.
Moreover, the inclusion of very specific and detailed pro-
visions underscored the substantive nature of the legisla-
tion being enacted. See, e.g., the comments of Congressman
Michel in explaining how the House of Representatives had
rejected the inclusion of danger to mental health as a
reason for funding abortions, 123 Cong. Rec. H. 12651,
12656 (Dec. 6, 1977) ; Senator Brooke’s and Senator Javits’
doubts of the constitutionality of the requirement of a
certificate from two physicians that severe and long-lasting
physical health damage would occur, 123 Cong. Ree. S.
19440-19443 (Dec. 7, 1977}, and Congressman Michel’s
attempts to define what was meant by the prompt reporting
requirement in cases of rape and incest, 123 Cong. Rec.
If. 12652-12653 (Dec. 6, 1977).
Perhaps the message of the legislation was conveyed
most clearly by those who were opposed to restrictions
on publicly funded abortions. Their litany of opposition
stressed the harshness of depriving the poor of abortions
which the more affluent could afford. The universal assump-
tion in debate was that if the Amendment passed there
would be no requirement that states carry on the service.
Congressman Stokes referred to the Amendment as ‘‘tanta-
18a
mount to a constitutional amendment outlawing abortions
for the poor.’’ 123 Cong. Rec. H. 6085 (June 17, 1977).
Congressman Holtzman said that it ‘‘condemns to death
poor women, who, if they give birth, will die... .’’ Jd. at
H. 6092. Others spoke to the same point, see, e.g., id. at
H. 6097 (Congressman Meyner), 123 Cong. Rec. at H. 10968
(Congressman Sears), id. at H. 12656 (Congressman
Fraser).
The predictions were no less dismal in the Senate. Sena-
tor Packwood said: ‘‘Let us be very clear about it. If we
do not fund abortions, these 250,000 to 300,000 women
who now receive abortions, paid for by Federal or State
moneys under medicaid, are either going to have babies
they do not want or are going to go to backroom abor-
tionists. There is no question that the poor are going
to be discriminated against.’’ 123 Cong. Ree. at S. 11031
(June 29, 1977). Similar remarks were made by Senator
McGovern, id. at S. 11040; Senator Bayh, id. at S. 11043;
Senator Brooke, 123 Cong. Rec. at S. 13672 (Aug. 4, 1977) ;
and Senator Javits, 123 Cong. Rec. at S. 19443 (Dec. 7,
1977).
Another variant of the message was that, if the Amend-
ment were passed, the states would have the option to
provide abortion on more liberal terms than those con-
tained in the Amendment, but only if they wished to do so.
Congressman Russo, a supporter of the Amendment, after
expressing satisfaction over the prospect of ‘‘saving’’
240,000 more lives if the source of funds were eliminated,
said, ‘‘of course, eliminating Federal funds would not end
all Government financing of all abortions. States would
retain the option of providing money to poor women for
abortions if they want. But the Federal Government’s
example would encourage States participating in the medi-
caid program to discontinue this aspect of medical care
to the poor—an option States cannot exercise at the present
19a
time.’’ 123 Cong. Rec. H. 6097-6098 (June 17, 1977). Other
spokesmen to the same effect were Senator Helms, 123
Cong. Rec. S. 18584-18585 (Nov. 3, 1977); Congressman
Karly, 123 Cong. Rec. at H. 10835 (Oct. 12, 1977); and
Congressman Smith, 123 Cong. Rec. at H. 12653 (Dec. 6,
1977).
Finally, the total absence in the debate of any suggestion
that massive financial burdens were being shifted to the
states further belies plaintiffs’ contention that states were
to continue to fund abortions beyond those qualifying
under the Hyde Amendment. Indeed, were a state to under-
take to pick up the burden dropped by the federal govern-
ment and divert funds from other medical services, the
functioning of its entire plan would be crippled.
From this sampling—which we think is a fair represen-
tation of the entire Congressional debate—we are per-
suaded that Congress realized that it was using the unusual
and frowned upon device of legislating via an appropri-
ations measure to accomplish a substantive result, That
result was, it believed, far more significant than the
proscription of federal funding of a program mandated
by Medicaid to continue even if only with state funding.
Repeal by Implication
Plaintiffs contend that this reading of the Hyde Amend-
ment brings it into conflict with the Medicaid Act and thus
violates both the principle that we should endeavor so to
construe two statutes that they may be capable of coexist-
ence, ‘‘absent a clearly expressed congressional intention
to the contrary’’, Morton v. Mancari, 417 USS. 535, 551
(1974), and the equally prominent principle disfavoring
repeals by implication, especially repeals via appropria-
tions measures, Tennessee Valley Authority v. Hill, 98
S. Ct. 2270, 2299-2300 (1978).
As a preliminary matter, we agree that our construction
of the Amendment, as a substantive enactment of a state’s
20a
Medicaid obligations, produces a conflict with the Medicaid
Act. We have held that the Medicaid Act requires an
inquiry into whether a state plan which limits reimburse-
ment for certain services, does so in a way that is ‘‘reason-
able’’, ‘‘consistent with the objectives of the Act’’, 42
U.S.C. § 1396a(a) (17) and without discriminating solely
on the basis of the particular ‘‘diagnosis, illness or con-
dition’’, 42 C.F.R. § 440.230 (1978), and we do not believe
that a state plan, funding only those abortions specified in
the Hyde Amendment, would be consistent with these re-
quirements of the Act.* The Hyde Amendment does not
suffer from the defect of the Massachusetts Act by limiting
the availability of funds, except in cases of rape and incest,
to life and death situations. Such a discrimination, we
determined, could not reasonably be said to be one based
on medical need. See White v. Beal, supra, 555 F.2d at
1151-52. Nor does the Hyde Amendment reduce the role
of the physician to making professional judgments based
solely on prevention of the woman’s death, as does the
Massachusetts Act. We think it important, in terms of its
consistency with the Act, that the Hyde Amendment per-
mits funding for abortions needed to prevent ‘‘serious and
long-lasting physical health damage’’, a standard that
allows a physician’s consideration of health needs, short
of life and death. The requirements that the damage be
“‘severe’’ and ‘‘long-lasting”’ apparently are designed to
ensure that funds will in fact be reserved to those who
most need the treatment.
Thus far, we might feel that we should conclude that
® Had we concluded, as did the district court, that the Medicaid
Act required a state to provide all “‘medically necessary’’ services
as determined by a physician, the conflict between the Amendment
and Medicaid would be readily apparent and far ranging. The
narrow categories funded by the Hyde Amendment would certainly
not encompass all situations in which a physician, exercising his
professional judgment, could certify that an abortion was medically
necessary.
2la
the Hyde Amendment, if intended as a substantive state-
ment on a state’s obligations, was in no way repugnant
with the Medicaid Act’s requirements for state plans. How-
ever, we are troubled by the Amendment’s requirement that
the damage be to physical health, impliedly excluding abor-
tions needed to prevent severe and long-lasting mental
health damage. This distinction, if embodied in a state
plan, would seem to contravene the Medicaid Act’s man-
date that a state may not ‘‘deny...a required service .. .
solely because of the diagnosis, type of illness or condi-
tion.’’ 42 C.F.R. § 440.230 (1978). Such a discrimination
carried to the point of total denial of abortion services
when serious injury to a person’s mental health if the
pregnancy is carried to term is diagnosed, cannot, we be-
lieve, be considered to be based on medical need. Id. The
discrimination sets up a presumption that physical health
‘damage is always more serious and hence more important
to prevent than mental health damage, a presumption that
is nothing less than absurd.” It follows, without further
°In Graves v. Fisher, 361 F. Supp. 1856 (D. Me. 1972), aff’d,
412 U.S. 924 (1973), a three-judge court, including ‘members of
this court, construed requirements imposed on the states by Title
XVI of the Social Security Act analogous to those of Title XIX,
the Medicaid Act. It held that Maine had violated the Social
Security Act and regulations thereunder by excluding a ‘‘category
of applicants for disability assistance on the basis of the source
of the diagnosed impairment’’, id. at 1359, in particular, persons
“‘suffering solely from psychoneurotic disorders, regardless of
severity or permanence’’. Jd. at 1357. Although the state in that
case had imposed limits on eligibility for medical assistance, and
we are concerned with attempts by a state to restrict the medical
assistance that it provides to eligible recipients, the court’s reason-
ing is equally pertinent here:
‘ ‘“‘If an applicant can prove that his disability is the func-
tional equivalent of that of other persons receiving assist-
ance, the source of or medical definition of his disability
should be irrelevant... . [T]he reference in 42 U.S.C. § 1382
(a) (13) to ‘reasonable standards . . . for determining eligi-
bility, cannot be construed as a license to states to introduce
eligibility conditions which relate neither to the duration nor
to the degree of an applicant’s impairment.’’ Id. at 1359.
See Boisvert v. Zeiller, 334 F. Supp. 403 (D. N.H. 1971).
22a
elaboration, that we could not describe it as ‘‘reasonable’’
or ‘‘consistent with the objectives of the Act’’ to with-
hold treatment in this fashion. 42 U.S.C. § 1396a(a)(17).?°
Contrary to plaintiffs’ assertions, this conclusion does
not compel us to embrace their reading of the Amendment
as a mere withdrawal of federal monies. Although that
reading may permit the Hyde Amendment and the Medi-
caid Act to co-exist facially by effecting no change in the
Act’s requirements for state plans, it requires us to do
violence to the Medicaid Act on a more pervasive and
fundamental level than would result from reading the
Amendment as a substantive alteration of those require-
ments. The Medicaid program is one of federal and state
cooperation in funding medical assistance; a complete with-
drawal of the federal prop in the system with the intent
to drop the total cost of providing the service upon the
states, runs directly counter to the basic structure of the
10 Whether the legislators realized that they had come into con-
flict with the Medicaid Act’s requirements by so legislating, or
believed that the Hyde Amendment, although legislative in impact,
was consonant with the Act, we cannot say with certainty. At one
point in the debate, several members appeared to suggest that their
particular versions of the Amendment were consonant with the
Act’s requirements, Sce 123 Cong. Rec. S. 11048, 11051 (Senators
Schweiker and Brooke). For example, Senator Brooke, arguing
for payment for all abortions deemed medically necessary by a
physician, stated that “‘[‘Medically necessary’] are words of art
that are used throughout medical legislation. They are used for
all social security funds and for all medical funds.’’ Jd. at S. 11051.
Perhaps we could infer an intent to repeal portions of the Medi-
eaid Act from the fact that the Congress enacted a far more
restrictive bill than one which, at ieast according to Senator
Brooke, would be consistent with the Act. We do not believe, how-
ever, that we need find express statements in the debates that the
Amendment would conflict with the Act; it is enough that the
natural result of the clearly expressed intent to legislate was to
create a ‘‘positive repugnancy’’ between its restrictions and pro-
visions of the Medicaid Act. Such a repugnancy itself suggests
the intent to repeal. Sce Morton v. Mancari, 417 U.S. 535, 550
(1974) ; United States v. Borden Co., 308 US. 188, 198-99 (1939) ;
Posadas v. National City Bank, 296 U.S. 497, 503 (1936).
23a
program” and could seriously cripple a state’s attempts to
provide other necessary medical services embraced by its
plan.
Moreover, the principle that two statutes should if pos-
sible be found capable of co-existence does not suggest that
we should approach the statute with blinders and reconcile
them at all costs, even when the second enactment is
an appropriations measure. Tennessee Valley Authority
v. Hill, supra, which plaintiffs have so vigorously invoked
as indicating that either express or implied repeal of
Medicaid is unthinkable, is not authority to the contrary.
Indeed, our analysis of the factors which distinguish that
case from the one at bar indicates that our construction
of Congressional intent is proper. Tennessee Valley Au-
thority v. Hill, supra, involved an unsuccessful argument
that the continued appropriating of funds for the Tellico
Dam repealed by implication the Endangered Species Act
insofar as that Act would otherwise have required con-
struction of the dam to be held up because of the fact
that the snail darter and its habitat would be placed in
jeopardy. The elements in that case were (1) brief state-
ments of opinion of committee members in a lengthy report,
that (2) monies in a very large appropriation act should
be used to complete a dam, (3) although the act itself did
not identify the approved objects of expenditure, and
(4) the act supposedly repealed pro tanto lay in the juris-
diction of another committee. The Court had no difficulty
In McRae v. Mathews, 421 F. Supp. 533, 538 (E.D. N.Y. 1976)
(vacated and remanded on other grounds), see note 6 supra, Judge
Dooling rejected the argument that the Hyde Amendment, for FY
1977, had not altered a state’s obligations to fund abortions required
by the Medicaid Act because :
‘‘The argument overlooks the essential nature of the Medicaid
legislation. The state and federal governments are linked in
a fiscal partnership to provide for medical assistance to the
needy ; the program is based on the federal initiative, and the
funding is primarily federal (42 U.S.C. §§ 1396, 1396d(b) ).’’
24a
in observing that since legislators are entitled to assume
that appropriated funds are to be ‘‘devoted to purposes
which are lawful’, 98 S. Ct. at 2300, there was no basis
to suppose that they felt any conflict between funding the
dam and the Endangered Species Act. It also noted that
there was ‘‘no indication that Congress as a whole was
aware of [the committees’] views’’, id., that ‘‘the appro-
priations committees had no jurisdiction over the subject
matter of endangered species’’, id., and that the ‘*appro-
priations Acts did not themselves identify the projects for
which the sums had been appropriated.”’ Jd. at 2299 n. 335.
Here, in contrast, the objective was a solitary, specific
proscription, not a hidden permitted purpose among a
multitude; and the appropriation related completely to the
subject matter of the affected substantive legislation. In
United States v. Dickerson, 310 U.S. 554 (1940), the Court
faced a situation more apposite to that at bar. Congress
had enacted a proviso, appended to an appropriations bill,
that none of the funds appropriated therein were to be
used for payment ‘‘of any enlistment allowance for ‘re-
enlistments made during the fiscal year ending June 30,
1939, notwithstanding the applicable portions of sections 9
and 10’ of the Act of June 10, 1922.’ Jd, at 555. The Court
concluded that Congress had intended to suspend the
enlistment allowance authorized by § 9 and not merely to
restrict the use of federal funds for that purpose. Id.
at 561. It refused to limit its analysis to the ‘*plain and
unambiguous’’ language of that statute and turned to the
legislative history which clearly showed Congressional in-
tent to legislate by an appropriations bill. Id. at 599-62.
Furthermore, the legislative history which we have
turned to in resolving this case does not suffer from the
defects noted by the Tennessee Valley Authority v. Hill
Court. The statement of Congressional intent upon which
we rely is not embodied in appropriations committee re-
25a
ports, which represent merely the views of its members
and may never have come to the attention of Congress as
a whole. The heated and lengthy debates that led to pas-
sage of the numerous versions of the Hyde Amendment
took place on the floor of each house, and the views ex-
pressed were those of a wide spectrum of its members.
We recognize the force of our brother’s dissent, that a
court should not infer lightly that Congress has legislated
in an appropriations measure so as to repeal a prior enact-
ment, a legislative process that contravenes its rules, and
that Congress has not, in so many words, stated that the
Hyde Amendment repeals portions of the Medicaid Act.
But we are unable to view this six month intensive debate
—albeit an emotional one—as a mere exercise in cost-shift-
ing. To so conclude ignores statement after statement by
proponems and opponents of the Amendment that its pas-
sage would allow states to choose whether to fund more
abortions than those specified therein and that it would
affect drastically the lives of poor women by closing off
their access to these services. Such a conclusion ignores
as well the unquestionably explicit awareness by the legis-
lators that they were using the disfavored vehicle of an
appropriations measure to legislate this result and that
they were setting aside their rules to do so. Indeed, were
these expressions of Congressional intent held to be insufii-
cient in quantity or quality to legislate substantively, we
would in candor be forced to admit that legislation in
appropriations acts was, as a practical matter, out of the
question. Such a determination, regardless of our view of
the wisdom of the course chosen by the legislature, is clearly
beyond the proper scope of this court.
We hold that the legislative history of the Hyde Amend-
ment is consistent with the cooperative federal-state struc-
ture of the Medicaid Act and reveals that the Amendment
constituted a substantive policy decision concerning the
26a
public funding of abortions which left the states free to
fund more abortions than those for which federal funds
were made available by the Amendment, but did not require
them to do so. The Medicaid Act, to the extent of its
repugnancy with the Hyde Amendment, has therefore been
altered by the Amendment. See United States v. Borden
Co., 308 U.S. 188, 199 (1939).
Our analysis has differed from that of the district court
in this case, most importantly, in our conclusion that the
Medicaid Act does not mandate that a state provide all
medically necessary services as determined by the physi-
cian. The result is the same, however, for we determined
that the Massachusetts Act violates even our less expansive
standard, that the limitation on services be ‘*reasonable’’,
‘‘consistent with the objectives of the Act’’, and not based
‘solely ... [on] the diagnosis, type of illness or condition’”’.
42 U.S.C. § 1396a(a)(17); 42 C.F.R. § 440.230. Further-
more, our decision that the Hyde Amendment was intended
as more than a cost-shifting device is consistent with the
district court’s conclusion on this issue.
The judgment of the district court therefore is affirmed,
enjoining implementation of Stat. 1978, ch. 367, § 2, Item
4402-5000, insofar as it prohibits state reimbursement for
abortions which would qualify for federal reimbursement
under the terms of the Hyde Amendment. This result is
in accord with the state’s request that, should an injunction
issue, it be modified to allow operation of Chapter 367
consistent with the requirements of the Medicaid Act. The
district court properly did not reach the constitutional
arguments raised by the parties, because it had statutory
grounds for decision. Hagans ‘y. Levine, 415 U.S. 528
(1974). We now remand the case for consideration of the
constitutional questions that remain open—namely, whether
the Hyde Amendment, construed as a substantive altera-
tion of the Medicaid Act and thus requiring the states to
27a
establish plans that provide abortion services in no more
than those instances which are specified in the Hyde Amend-
ment, is constitutional.
On remand the district court should also afford the plain-
tiffs who were dismissed from the Parent’s Aid Society,
Inc. v. Sharp actions for lack of standing an opportunity
to be heard on the standing issue. Although a court may
dismiss an action at its own instance, as apparently hap-
pened here, it must first afford the parties an opportunity
to oppose the dismissal. See Literature, Inc. v. Quinn, 482
F.2d 372, 374 (1st Cir. 1973).
It is so ordered.
Bowness, Circuit Judge (dissenting). I respectfully dis-
sent.
While I have no problem with my brethren’s analysis
as to the requirements that the Medicaid Act imposes on a
participating state, I cannot agree that the Hyde Amend-
ment has worked a substantive change in those require-
ments.
The Hyde Amendment was a rider attached to a general
appropriations bill for the fiscal year 1978. In addition to
making funds available for the Departments of Labor and
Health, Education and Welfare, appropriations were made
for such disparate purposes as continuing projects and
activities as would be available in the District of Columbia
Appropriations Act, the Advisory Neighborhood Commis-
sions and the Disaster Loan Fund of the Small Business
Administration. Section 209 of Pub. L. 95-205; 91 Stat.
1460 (Dec. 9, 1970).
The language of the paragraph in which the rider was
inserted is important:
Such amounts as may be necessary for projects or
activities provided for in the Departments of Labor,
28a
and Health, Education, and Welfare, and Related
Agencies Appropriations Act, 1978 (H.R. 7555), at a
rate of operations, and to the extent and in the man-
ner, provided for in such Act, notwithstanding the
provisions of Sec. 106 of this joint resolution: Pro-
vided, 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.
Nor are payments prohibited for drugs or devices
to prevent implantation of the fertilized ovum, or for
medical procedures necessary for the termination of
an ectopic pregnancy.
The Secretary shall promptly issue regulations and
establish procedures to ensure that the provisions of
this section are rigorously enforced.
Id. (emphasis added).
There is nothing in the language of the proviso suggest-
ing that Congress intended to repeal the Medicaid Act in
part. The Hyde Amendment specifically addresses itself
to the use of federal funds. The words are clear: ‘‘Pro-
vided, that none of the funds provided for in this paragraph
..’’ The usual rule of statutory construction is to start
with the words of the statute; if they are clear, there is no
need to go further.
When confronted with a statute which is plain and
unambiguous on its face, we ordinarily do not look
to legislative history as a guide to its meaning. Ex
parte Collett, 337 U.S. 55, 61 (1949), and cases cited
29a
therein. Here it is not necessary to look beyond the
words of the statute. We have undertaken such an
analysis only to meet Mr. Justice Powell’s suggestion
that the ‘‘absurd’’ result reached in this case, post,
at 1, is not in accord with congressional intent.
TVA v. Hill, 46 U.S.L.W. 4673, 4681 n.29 (June 15, 1978).
Although my brethren recognize that the language of
the Hyde Amendment speaks only to the use of federal
funds, they feel that an extensive excursion into legislative
history is necessary because its plain meaning produces a
result at variance with the policy of the legislation as
a whole. This is a bootstrap approach to statutory con-
struction ; it allows a court to ignore the plain language of
a statute and rewrite it by drawing upon its legislative
history. While congressional debates and committee re-
ports can be a helpful guide to the intent of an ambigu-
ously worded statute, they should not be used to defeat the
clearly expressed statutory language. The majority opinion
cites United States v. American Trucking Associations,
Inc., 310 U.S. 534, 543-44 (1939), in support of the doctrine
that, when the plain meaning of a statute produces a result
‘‘plainly at variance with the policy of the legislation as
a whole,’’ it is necessary to delve into legislative history.
But there is no ‘‘legislation as a whole’’ to consider here.
We have an amendment attached to a general appropri-
ations bill. This, of course, is a prime example of why
the courts should be and are extremely reluctant to allow
a rider to an appropriations bill to amend an entirely
separate and distinct statute by implication. See extended
discussion in TVA v. Hill, supra, 46 U.S.L.W. at 4683-85.
Our own observation in Mass. Fin. Serv. v. Securities
Investor Protection, 545 F.2d 754, 757-58 (1st Cir. 1976),
cited in the majority opinion, is pertinent:
It is not our province to decide whether Congress
would have been wiser to draft the SIPC legislation
30a
so as to include firms like MFS as members, Old Dear-
born Distributing Co. v. Seagram-Distillers Corp., 299
U.S. 183, 195-96, 57 S.Ct. 139, 81 L.Ed. 109 (1936),
and it is no part of our function to extend a statute’s
reach beyond its clearly indicated scope. Guiseppi v.
Walling, 144 F.2d 608, 614-15 (2d Cir. 1944) (Frank,
J.) aff’d sub nom. Gemsco, Inc. v. Walling, 324 U.S.
244, 65 S.Ct. 605, 89 L.Ed. 921 (1945). Rather, ‘‘[i]t
is our judicial function to apply statutes on the basis
of what Congress has written, not what Congress
might have written.’’ United States v. Great N orthern
Ry., 343 U.S. 562, 575, 72 S.Ct. 985, 993, 96 L.Ed. 1142
(1952). Congress remains free to amend SIPA should
it so choose, but as it now stands that act clearly
exempts MFS.
But, even assuming that the legislative history is rele-
vant, I can find nothing in the majority’s excellently re-
searched and documented history of the debate on this
highly emotionally charged subject that clearly indicates
that Congress was doing more than limiting the use of
federal funds. There were, as my brethren point out, two
separate statements, by Congressman Doran and Edwards,
to the effect that only federal funds were involved. The
majority concludes, however, that these observations were
nullified by those portions of the debate in both the House
and Senate that focused on the effect of the amendment
on the poor, i.c., by Congressman Stokes, Meyner, Sears
and Fraser and Senators Packwood, McGovern, Bayh,
Brooke and Javits. But the statements of Congressmen
Doran and Edwards were never expressly refuted.
My brethren state that ‘‘the record is clear that both
houses of Congress were acutely conscious that they were
engaging in substantive legislation.’ If this is so, it is
hard to understand the absence of any statement during
the course of the lengthy debate that the Hyde Amendment
was making a significant change in the Medicaid Act.
3la
Surely, someone in the Congress would have been percep-
tive enough and forthright enough to realize the full impli-
cations of the amendment and say so. It is not as clear
to me as it is to my brethren that Congress intended a
pro tanto amendment of the Medicaid Act. The majority
opinion points to the absence from the debate of any dis-
cussion of the financial effects on the states of being forced
to fund abortions that are determined to be medically
necessary as further evidence of an intended substantive
change in the Medicaid Act. It may also, of course, indicate
that Congress was so emotionally enveloped in this volatile
and disruptive subject that it failed to think through the
implications of what it was doing. In any event, we cannot
construe silence on a subject as a positive expression of
congressional] intent.!
We have here a statute whose’ plain meaning is clear
and whose congressional history can be construed to mean
that a number of congressmen felt that, contrary to what
the statute said, it would effect a substantial change in
the Medicaid Act. If this were merely a matter of balanc-
ing the words of the statute against the words of the debate,
this would be a close case, but the principle disfavoring
repeal by implication and Congress’ own procedural rules
expressly prohibiting changing existing law via an appro-
priations bill, apply with particular pertinence here and
compel a finding that there was no substantive amendment
of the Medicaid Act.
The majority’s attempt to distinguish this case from
TVA v. Hill, supra, rests on the grounds that full-fledged
and lengthy congressional debate is a better gauge of
congressional intent than a committee report. As I noted
1 The suggestion in the majority opinion that funding by a state
alone of medically necessary abortions could cripple a state’s
attempts to provide other necessary medical services in its plan
is not buttressed by any facts or figures in the record or the con-
gressional history.
32a
before, however, the subject matter of the debate is an
important factor to consider. It would not be inaccurate
to say that the more emotional the subject, the less sure
we can be that the words used reflect considered thought
rather than expressing deeply ingrained feelings. I can-
not, as does the majority, ignore the clear teaching of
TVA v. Hill, supra?
The doctrine disfavoring repeals by implication
“‘applies with full vigor when .. . the subsequent legis-
lation is an appropriations measure.’? Committee for
Nuclear Responsibility v. Seaborg, 149 U.S. App. D.C.
380, 382, 463 F.2d 783, 785 (1971) (emphasis added) ;
Environmental Defense Fund v. Froehlke, 473 F.2d
346, 355 (CA 8, 1972). This is perhaps an understate-
ment since it would be more accurate to say that the
policy applies with even greater force when the claimed
repeal rests solely on an appropriations act. We rec-
ognize that both substantive enactments and appro-
priations measures are ‘‘acts of Congress,’’ but the
latter have the limited and specific purpose of provid-
ing funds for authorized programs. When voting on
appropriations measures, legislators are entitled to
operate under the assumption that the funds will be
devoted to purposes which are lawful and not for any
purpose forbidden. Without such an assurance, every
appropriations measure would be pregnant with pros-
pects of altering substantive legislation, repealing by
implication any prior statute which might prohibit the
expenditure. Not only would this lead to the absurd
result of requiring Members to review exhaustively
2TVA v. Hill, 46 U.S.L.W. 4673 (June 15, 1978), is merely the
latest in a long line of eases holding that repeals by implication
are not favored. Sec, e.g., Unitcd States v. Continental Tuna Corp.,
425 U.S. 164, 168-69 (1976) ; Georgia v. Pennsylvania R. Co., 324
U.S. 439, 456-57 (1945); United States v. Borden Co., 308 U.S.
188, 198-99 (1939) ; Posadas v. National City Bank, 296 U.S. 497,
503 (1936).
33a
the background of every authorization before voting
on an appropriation, but it would flout the very rules
the Congress carefully adopted to avoid this need.
House Rule XXI(2), for instance, specifically pro-
vides:
‘‘No appropriation shall be reported in any gen-
eral appropriation bill, or be in order as an
amendment thereto, for any expenditure not pre-
viously authorized by law, unless in continuation
of appropriations for such public works as are
already in progress. Nor shall any provision in
any such bill or amendment thereto changing
existing law be im order.’’ (Emphasis added.)
See also Standing Rules of the Senate, Rule 16.4.
Thus, to sustain petitioner’s position, we would be
obliged to assume that Congress meant to pro tanto
repeal § 7 of the Act by means of a procedure expressly
prohibited under the rules of Congress.
Id. at 4683.
The majority cites United States v. Dickerson, 310 U.S.
004 (1940), to buttress its position that in rare cases where
congressional intent is clear, an amendment to an appro-
priations bill may effect a change in existing law. In
Dickerson, the Congress did amend a reenlistment allow-
ance statute by a provision tacked on to an appropriation
for the Rural Electrification Administration. But the lan-
guage used in the appropriations rider specifically referred
to the other statute and explicitly suspended its provisions
for the fiscal year in question. Dickerson is, therefore, a
very narrow exception to the established rule. Here, there
is no clear amendment of the Medicaid Act in the appro-
priation proviso and, at the least, some ambiguity in the
congressional history as to what Congress really intended.
I am also troubled by my brethren’s treatment of what
is to me a clear signal in Beal v. Doe, 432 U.S. 438., 444-45
(1977):
34a
Although serious statutory questions might be pre-
sented if a state Medicaid plan excluded necessary
medical treatment from its coverage, it is hardly in-
consistent with the objectives of the Act for a State
to refuse to fund unnecessary—though perhaps desir-
able—medical services.
I read this language as a cautionary instruction to the states
that, while they would still be within the parameters of
the Medicaid Act if they eliminated unnecessary medical
services, they would transgress the statutory scheme by
precluding necessary medical services from coverage.
Which is precisely the situation we confront.
Another factor militating against the result reached by
the majority is Congress’ own rules, As pointed out in
TVA v. Hill, supra, both houses of Congress have a rule
that expressly prohibits changing existing law by an amend-
ment to an appropriation bill. There is scant mention in
the congressional debate of these rules or the fact that both
houses intended to flout them. Are we to assume that
Congress deliberately evaded and ignored its own pro-
cedural rules, or forgot about them, or was entirely ignor-
ant of them? The only logical conclusion that gives due
deference to Congress’ knowledge and respect for its own
procedural requirements is that the Hyde Amendment was
limited to the use of federal funds only.
The majority opinion focuses on the congressional debate
and finds in it a clear intent to amend the Medicaid Act
by allowing the states to limit necessary medical services
for abortion to those specifically set forth in the Hyde
Amendment. This approach in my opinion distorts the
3 Senator Magnuson did state that the amendment should not be
part of an appropriations bi!l, but did not advert to the Senate
rule. Senator Stennis adverted, somewhat obliquely, to the ‘‘obscure
rules’’ of the Senate.
* As the majority points out, the requirement that the damage
to the mother be limited to physical health, excluding any mental
health damage, is directly contrary to the specific provisions of
the Medicaid Act that medical services may not be denied ‘‘solely
=a
35a
picture. A complete perspective requires a careful look
at all of the factors involved: the words of the statute,
the congressional history, the rules of the Congress pro-
hibiting substantive changes in existing law by an amend-
ment to an appropriations bill, and the well established
principle against repeal by implication, especially by an
amendment to an appropriations bill.
Even if the congressional intent were as clear as the
majority finds, I do not think that it should be allowed to
ride roughshod over firmly established and, at least up
until now, well understood congressional rules and judicial
principles of statutory construction. I would hold that the
Hyde Amendment is limited, as it clearly says, to the
expenditure of federal funds and that the medically neces-
sary requirements of the Medicaid Act still apply to the
states. While the result may be ‘‘anomalous,’’ that is a
matter for Congress, not the courts. To quote again from
TVA v. Hill, supra, at 4684:
We agree with the Court of Appeals that in our
constitutional system the commitment to the separa-
tion of powers is too fundamental for us to pre-empt
congressional action by judicially decreeing what ac-
cords with ‘‘commonsense and the public weal.’’ Our
Constitution vests such responsibilities in the political
Branches.
because of the diagnosis, type of illness or condition.”’ 42 C.F.R.
§449.10(a)(5)(i) (1977) [recently recodified as 42 C.F.R.
§440.230, 43 Fed. Reg. No. 190 (Sept. 29, 1978)]. See also 42
U.S.C. §1396a(a)(10)(A), (C). Rather than reading this language
as a repeal by implication of the Medicaid Act, I would read
“‘physical’’ as surplusage and strike it, leaving ‘‘health’’ standing
alone. This construction would permit both statutes to be read
in harmony one with the other. ‘‘The courts are not at liberty to
pick and choose among congressional enactments, and when two
statutes are capable of co-existence, it is the duty of the courts,
absent a clearly expressed congressional intention to the trary,
to regard each as effective.’’ Morton v. Mancari, 417 U.S. , 551
(1974).
36a
STATUTES AND REGULATIONS INVOLVED
Massachusetts Acts of 1978, Chapter 367 §2, Item 4402-5000
4402-5000 For a medical assistance program; provided,
that all federal funds received for the purpose of this item
shall be credited to the General Fund, and provided further,
that no expenditure or commitment made pursuant to this
item or to any agreements authorized by chapter eight
hundred of the acts of nineteen hundred and sixty-nine,
for the purpose of complying with the provisions of
Public Law 89-97, Title XIX, shall be incurred in excess of
available funds which have been appropriated therefor;
and provided, further, that all judgments, appeals and rate
changes for services provided in a prior year but finally
determined during the current fiscal year may be paid
from this account, subject to the approval of the house and
senate committees on ways and means; and provided, fur-
ther, that an amount not exceeding one hundred twenty mil-
lion dollars may be expended from this item for expenses
incurred in the prior fiscal year; and provided, further
that no funds appropriated under this item shall be ex-
pended for the payment of abortions not necessary to
prevent the death of the mother. This provision does
not prohibit payment for medical procedures necessary
for the prompt treatment of the victims of forced rape or
incest if such rape or incest is reported to a licensed hos-
pital or law enforcement agency within thirty days after
said incident _ Bras Bae is Soar. $700,000,000
Mass. Gen. Laws ch. 118E §1
There is hereby established, pursuant to and in con-
formity with the povisions of Title XIX of the Social
a |
37a
Security Act (P.L. 89-97), a program of medical care and
assistance for certain residents of the commonwealth.
The benefits of the program shall be available to all
persons who are eligible for supplemental security income
sions of chapter one hundred and eighteen and to all
persons who are eligible for supplemental security income
payments on account of age or disability under the provi-
sions of title XVI of the federal Social Security Act or
for assistance under the provisions of chapter one hundred
and eighteen A. The benefits of the program shall also be
available to all others who would be eligible for financial
assistance under any of the foregoing provisions but for
income or resources, provided they meet the requirements
of financial eligibility under the program hereinafter set
forth, and to all children under eighteen years of age, and
adults eighteen, nineteen and twenty years of age whose
income and resources are insufficient to meet the costs
of their medical care as determined by the financial elig-
ibility requirements of said program.
Section 209, Pub. L. 95-205; 91 Stat. 1460 (Dec. 9, 1977)
(“Hyde Amendment”)
Provided, 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 have been reported promptly to a law en-
forcement 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 phy-
sicians.’’
38a
42 U.S.C. §1396
For the purpose of enabling each State, as far as
practicable under the conditions in such State, to furnish
(1) medical assistance on behalf of families with dependent
children and aged, blind, or disabled individuals, whose
income and resources are insufficient to meet the costs
of necessary medical services, and (2) rehabilitation and
other services to help such families and individuals attain
or retain capability for independence or self-care, there is
hereby authorized to be appropriated for each fiscal year
a sum sufficient to carry out the purposes of this sub-
chapter. The sums made available under this section shall
be used for making payments to States which have submit-
ted, and had approved by the Secretary of Health, Educa-
tion and Welfare, State plans for medical assistance.
42 U.S.C. §1396a(a)
A state plan for medical assistance must —
(10) provide —
(A) for making medical assistance available to all indi-
viduals receiving aid or assistance under any plan of the
State approved under subchapter I, X, XIV, or XVI, or
part A of subchapter IV of this chapter, or with respect
to whom supplemental security income benefits are being
paid under subchapter XVI of this chapter ;
(B) that the medical assistance made available to any
individual described in clause (A) —
(i) shall not be less in amount, duration, or scope
than the medical assistance made available to any
other such individual, and
(ii) shall not be less in amount, duration, or scope
than the medical assistance made available to indi.
viduals not described in clause A; and
39a
(C) if medical assistance is included for any group of
individuals who are not described in clause (A) and who
do not meet the income and resources requirement of the
appropriate State plan, or the supplemental security in-
come program under subchapter XVI of this chapter, as
the case may be, as determined in accordance with stan-
dards prescribed by the Secretary —
(i) for making medical assistance available to all
individuals who would, except for income and re-
sources, be eligible for aid or assistance under any
such State plan or to have paid with respect to them
supplemental security income benefits under subchap-
ter XVI of this chapter, and who have insufficient (as
determined in accordance with comparable standards)
income and resources to meet the costs of necessary
medica] and remedial care and services, and
(ii) that the medica] assistance made available to
all individuals not described in clause (A) shall be
equal in amount, duration, and scope;
except that (I) the making available of the services de-
scribed in paragraph (4), (14), or (16) of section 1396d(a)
of this title to individuals meeting the age requirements
prescribed therein shall not, by reason of this paragraph
(10), require the making available of any such services,
or the making available of such services of the same
amount, duration, and scope, to individuals of any other
ages, (II) the making available of supplementary medical
insurance benefits under part B of subchapter XVIII of
this chapter to individuals eligible therefor (either pursu-
ant to an agreement entered into under section 1395v of
this title or by reason of the payment of premiums under
such subchapter by the State agency on behalf of such
individuals), or provision for meeting part or all of the
cost of deductibles, cost sharing, or similar charges under
part B of subchapter XVIII of this chapter for individuals
40a
eligible for benefits under such part, shall not, by reason
of this paragraph (10), require the making available of any
such benefits, or the making available of services of the
same amount, duration, and scope, to any other individuals,
and (III) the making available of medical assistance
equal in amount, duration, and scope to the medical assist-
ance made available to individuals descriped in clause (A)
to any classification of individuals approved by the Sec-
retary, with respect to whom there is being paid, or who
are eligible, or would be eligible if they were not in a
medical institution, to have paid with respect to them, a
State supplementary payment shall not, by reason of this
paragraph (10), require the making available of any such
assistance, or the making available of such assistance of the
same amount, duration, and scope, to any other individuals
not described in clause (A) ;
(13) provide —
(A)(i) for the inclusion of some institutional and some
noninstitutional care and services, and
(ii) for the inclusion of home health services for any
individual who, under the State plan, is entitled to skilled
nursing facility services, and
(B) in the case of individuals receiving aid or assist-
ance under any plan of the State approved under sub-
chapter I, X; XIV, or XVI, or part A of subchapter IV
of this chapter, or with respect to whom supplemental
security income benefits are being paid under subchapter
XVI of this chapter, for the inclusion of at least the care
and services listed in clauses (1) through (5) of section
1396d (a) of this title, and
(C) in the case of individuals not included under sub-
paragraph (B) for the inclusion of at least —
(i) the care and services listed in clauses (1)
through (5) of section 1396d(a) of this title or
4la
(ii)(I) the care and services listed in any 7 of the
clauses numbered (1) through (16) of such section and
(II) in the event the care and services provided under
the State plan included hospital or skilled nursing
facility servies, physicians’ services to an individual
in a_ hospital or skilled nursing facility during any
period he is receiving hospital services from such
hospital or skilled nursing facility services from
such facility, and
(D) for payment of the reasonable cost of inpatient
hospital services provided under the plan, as determined
in accordance with methods and standards, consistent with
section 1320a-1 of this title, which shall be developed by
the State and reviewed and approved by the Secretary and
(after notice of approval by the Secretary) included in
the plan, except that the reasonable cost of any such
services as determined under such methods and standards
shall not exceed the amount which would be determined
under section 1395x(v) of this title as the reasonable cost
of such services for purposes of subchapter XVIII of this
chapter; and
(E) effective July 1, 1976, for payment of the skilled
nursing facility and intermediate care facility services
provided under the plan on a reasonable cost related basis
as determined in accordance with methods and standards
which shall be developed by the State on the basis of cost-
finding methods approved and verified by the Secretary;
(17) include reasonable standards (which shall be com-
parable for all groups and may, in accordance with stan-
dards prescribed by the Secretary, differ with respect to
income levels, but only in the case of applicants or recip-
ients of assistance under the plan who are not receiving
aid or assistance under any plan of the Siate approved
under subchapter I, X, XIV, or XVI, or part A of sub-
42a
chapter IV of this chapter, and with respect to whom
supplemental security income benefits are not being paid
under subchapter XVI of this chapter based on the varia-
tions between shelter costs in urban areas and in rural
areas) for determining eligibility for and the extent of
medical assistance under the plan which (A) are consistent
with the objectives of this subchapter, (B) provide for
taking into account only such income and resources as
are, as determined in accordance with standards prescribed
by the Secretary, available to the applicant or recipient
who would, except for income and resources, be eligible for
aid or assistance in the form of money payments under any
plan of the State approved under subchapter I, X, XIV,
or XVI, or part A of subchapter IV, or to have paid with
respect to him supplemental security income benefits under
subchapter XVI of this chapter as would not be disregarded
(or set aside for future needs) in determining his eligibility
for such aid, assistance, or benefits, (C) provide for reas-
onable evaluation of any such income or resources, and
(D) do not take into account the financial responsibility
of any individual for any applicant or recipient of assist-
ance under the plan unless such applicant or recipient is
such individual’s spouse or such individual’s child who is
under age 21 or (with respect to States eligible to partici-
pate in the State program established under subchapter
XVI of this chapter), is blind or permanently and totally
disabled, or is blind or disabled as defined in section 1382c
of this title (with respect to States which are not eligible
to participate in such program) ; and provide for flexibility
in the application of such standards with respect to income
by taking into account, except to the extent prescribed
by the Secretary, the costs (whether in the form of insur-
ance premiums or otherwise) incurred for medical care or
for any other type of remedial care recognized under
State law;
43a
42 U.S.C. $1396d
For purposes of this subchapter—
(a) The term ‘‘medical assistance’? means payment of
part or all of the cost of the following care and services (if
provided in or after the third month before the month in
which the recipient makes application for assistance) for
individuals, and, with respect to physicians’ or dentists’
services, at the option of the State, to individuals (other
than individuals with respect to whom there is being paid,
or who are eligible, or would be eligible if they were not
in a medical institution, to have paid with respect to them a
State supplementary payment and are eligible for medical
assistance equal in amount, duration, and scope to the
medical assistance made available to individuals described
in section 1396a(a)(10)(A) of this title) not receiving aid
or assistance under any plan of the State approved under
subchapter I, X, XIV, or XVI, or part A of subchapter IV,
and with respect to whom supplemental security income
benefits are not being paid under subchapter XVI of this
chapter, who are —
(i) under the age of 21.
(ii) relatives specified in section 606(b)(1) of this
title with whom a child is living if such child, except
for section 606(a)(2) of this title, is (or would, if
needy, be) a dependant child under part A of sub-
chapter IV of this chapter,
(ili) 65 years of age or older,
(iv) blind, with respect to States eligible to parti-
cipate in the State plan program established under
subchapter XVI of this chapter,
(v) 18 years of age or older and permanently and
totally disabled, with respect to States eligible to
participate in the State plan program established
under subchapter XVI of this chapter,
44a
(vi) persons essential (as described in the second
sentence of this subsection) to individuals receiving
aid or assistance under State plans approved under
subchapter J, X, XIV, or XVI of this chapter, or
(vii) bind or disabled as defined in section 1382c
of this title, with respect to States not eligible to
participate in the State plan program established
under subchapter XVI of this chapter, but whose in-
come and resources are insufficient to meet all of
such cost —
(1) inpatient hospital services (other than
services in an institution for tuberculosis or men-
tal diseases) ;
(2)(A) outpatient hospital services, and (B)
consistent with State law permitting such ser-
vices, rural health clinic services (as defined in
subsection (l) of this section) and any other am-
bulatory services which are offered by a rural
health clinic (as defined in subsection (1) of this
section) and which are otherwise included in the —
plan;
(3) other laboratory and X-ray services;
(4)(A) skilled nursing facility services (other
than services in an institution for tuberculosis
or mental diseases) for individuals 21 years of
age or older (B) effective July 1, 1969, such early
and periodic screening and diagnosis of individ-
uals who are eligible under the plan and are
under the age 21 to ascertain their physica! or
mental defects, and such health care, treatment,
and other measures to correct or ameliorate de-
fects and chronic conditions discovered thereby,
as may be provided in regulations of the Secre-
tary; and (C) family planning services and sup-
plies furnished (directly or under arrangements
45a
with others) to individuals of child-bearing age
(including minors who can be considered to be
sexually active) who are eligible under the State
plan and who desire such services and supplies ;
(5) physicians’ services furnished by a physi-
cian (as defined in section 1395x(r)(1) of this
title), whether furnished in the office, the pa-
tient’s home, a hospital, or a skilled nursing facil-
ity, or elsewhere;
(6) medical care, or any other type of remedial
care recognized under State law, furnished by
licensed practitioners within the scope of their
practice as defined by State law;
(7) home health care services;
(8) private duty nursing services;
(9) clinic services;
(10) dental services;
(11) physical therapy and related services;
(12) prescribed drugs, dentures, and prosthetic
devices; and eyeglasses prescribed by a physician
skilled in diseases of the eye or by an optometrist,
whichever the individual may select;
(13) other diagnostic, screening, preventive,
and rehabilitative services;
(14) inpatient hospital services, skilled nursing
facility services, and intermediate care facility
services for individuals 65 years of age or over
in an institution for tuberculosis or mental dis-
eases;
(15) intermediate care facility services (other
than such services in an institution for tubercu-
losis or mental diseases) for individuals who are
determined, in accordance with section 1396a (a)
(31)(A) of this title, to be in neeed of such care;
46a
(16) effective January 1, 1973, inpatient psychi-
atric hospital services for individuals under age
21, as defined in subsection (h) of this section;
and
(17) any other medical care, and any other
type of remedial care recognized under State law,
specified by the Secretary;
except as otherwise provided in paragraph (16), such
term does not include —
(A) any such payment with respect to care
or services for any individual who is an inmate
of a public institution (except as a patient in a
medica] institution) ; or
(B) any such payments with respect to care or
services for any individual who has not attained
65 years of age and who is a patient in an insti-
tution for tuberculosis or mental diseases.
42 C.F.R. 440-230 (1978)
(a) The plan must specify the amount and duration of
each service that it provides,
(b) Each service must be sufficient in amount, dura-
tion, and scope to reasonably achieve its purpose.
(c)(1) The medicaid agency may not deny or reduce the
amount, duration, or scope of a required service under
$§440.210 and 440.220 to an otherwise eligible recipient
Solely because of the diagnosis, type of illness, or condi-
tion.
(2) The agency may place appropriate limits on a
Service based on medica] necessity or on utilization control
procedures:
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.