Motion to Dismiss or Affirm — Williams v. Zbaraz
Supreme Court brief1980
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Nos. 79-4, 79-5 and 79-491 aoe
FILED
In The
229 1979
Supreme Court of the United States _
October Term, 1979 a
No. 79-4
JASPER F. WILLIAMS, M.D., and EUGENE F. DIAMOND, M.D.,
Appellants,
Vv.
DAVID ZBARAZ, M.D., MARTIN MOTEW, M.D., individually and on behalf of all
others similarly situated; CHICAGO WELFARE RIGHTS ORGANIZATION, an
Ilinois not-for-profit corporation; and JANE DOE, individually and on behalf of
all others similarly situated,
Appellees.
No. 79-5
JEFFREY MILLER, Acting Director, Illinois Department of Public Aid,
Appellant,
vV.
DAVID ZBARAZ, M.D., MARTIN MOTEW, M.D., individually and on behalf of all
others similarly situated; CHICAGO WELFARE RIGHTS ORGANIZATION, an
illinois not-for-profit corporation; and JANE DOE, individually and on behalf of
all others similarly situated,
Appellees.
No. 79-491
UNITED STATES OF AMERICA,
Appellant,
Vv.
DAVID ZBARAZ, M.D., MARTIN MOTEW, M.D., individually and on behalf of all
others similarly situated; CHICAGO WELFARE RIGHTS ORGANIZATION, an
illinois not-for-profit corporation; and JANE DOE, individually and on behalf of
all others similarly situated, .
Appellees.
On Appeal from the United States District Court for the Northern District of Illinois
MOTION TO VACATE IN PART, ,
TO DISMISS IN PART, AND TO AFFIRM
AVIVA FUTORIAN
ROBERT E. LEHRER
WENDY MELTZER
JAMES D. WEILL
Legal Assistance Foundation of Chicago
343 South Dearborn Street
Chicago, Illinois 60604
Counsel for Appellees
ROBERT W. BENNETT
357 East Chicago Avenue
Chicago, Illinois 60611
LOIS J. LIPTON
DAVID GOLDBERGER
Roger Baldwin Foundation
of ACLU, Inc.
5 South Wabash Avenue
Chicago, Illinois 60603
Midwest Law Printing Co., Chicago 60601, FInancial 6-3988
TABLE OF CONTENTS
PAGE
OPINIONS BELOW .. 3
JURISDICTION ....... 3
CONSTITUTIONAL AND STATUTORY PROVI-
a saseesccssnsennnsonccenee 4
STATEMENT OF THE CASE ......W2 en 4
QUESTIONS PRESENTED 5
LL TT 6
1.
That Part of the District Court Judgment Ruling
on the Hyde Amendment Should Be Vacated, as
There is no Case or Controversy with Respect to
RT ES SSR en 6
II.
The Judgment of the District Court Should Other-
wise Be Affirmed, on the Ground That the Ques-
tions Presented Are so Unsubstantial as Not to
Need Further Argument ............................... dial 9
Ul
This Court is Without Jurisdiction over the In-
tervenors’ Appeal insofar as it Seeks Review of
the Earlier Court of Appeals’ Decision Herein ...... 25
IV
The Social Security Act and Implementing Federal
Regulations Require Illinois to Cover all Medically
Necessary Abortions under its Medicaid Program .._ 33
Nee ss cameniecteseneuscesscnscensoes 34
APPENDIX:
A—Doe v. Poelker, No. 73C 565 (A) (E.D. Mo. Dec.
ESSE SE la
B—Tlinois Department of Public Aid Program
Rules 8a
‘i
CITATIONS
Cases
Art Theater Guild, Inc. v. Ohio ex rel. Schoen, 421 U.S.
RAEN SDESE STRESS SUSI RENNER eo ern ee onve UMS RSE oe 28
Beal v. Doe, 432 U.S. 438 (1977) ....................-.-- 9, 13, 18, 21
Brown v. Alton Water Co., 222 U.S. 325 (1912) .... 30, 31, 32
Califano v. Goldfarb, 430 U.S. 199 (1977) ....................... 17
Califano v. Webster, 430 U.S. 313 (1977) -~............02..... 22
Colautti v. Franklin, 439 U.S. 379 (1979) -............... 9, 14, 22
Craig v. Boren, 429 U.S. 190 (1976) -.222.2.. eee ee 12
Dandridge v. Williams, 397 U.S. 471 (1970) -................... 7
Doe v. Bolton, 410 U.S. 179 (1973) -.....2.2. eee een 9,13
Doe v. Poelker, 515 F.2d 541 (8th Cir. 1975) —...002... 15
Doe v. Poelker, No. 73C 565 (A) (E.D. Mo. December
BS la iarrchebdicniataiadciiaaanisaiercipisetinnicneeeeeee 15, App. A
Dunn v. Blumstein, 405 _! | 2). | PR RRaeSeRennuNnOD 24
E] Paso v. Simmons, 379 U.S. 497 (1965) 0.22200... 28
Farmers & Mechanics National Bank v. Wilkinson, 266
US. 503 (1925) ....... 1 I a 9, 30, 31, 32
Ferguson v. Moore-MeCormack Lines, Inc., 352 U.S. 515
eh Ete: SSUES Re neue © se eee ae ae 28
Fusari v. Steinberg, 419 U.S. 379 (1975) —..........-....... 8, 29
Gabriel v. United States, 429 U.S. 877 (1976) -.............. 27
Gallogly v. Larsen, 420 U.S. 904 (1975) _..0.- 8
Goldberg v. Kelly, 397 U.S. 254 (1970) _.... ee. 16
Golden v. Zwickler, 394 U.S. 103 (1969) 00. | 7
Kantrowitz v. Weinberger, 388 F.Supp. 1127 (D.D.C.
1974), aff’d, 530 F.2d 1034 (D.C. Cir. 1976), cert.
denied, 429 U.S. 819 (1976) 2.2.2... eeeeesecceceneeeeeneeeee: 19
Legion v. Richardson, 354 F.Supp. 456 (S.D.N.Y. 1273),
aff’d sub nom. Legion v. Weinberger, 414 U.S. 1058
ESE TS SEE REE aR I Oe Ie CE 19
Liverpool N.Y. & P.S.S. Co. v. Commissioners of Emi-
gration, 113 U.S. 33 (1885) 2 eee eee eee 7
Maher v. Roe, 432 U.S. 464 (1977) .. 15, 16, 18, 19, 21, 22, 23
ili
Maryland Casualty Co. v. Pacific Coal & Oil Co., 312
U.S. 270 (1941) 7
McLucas v. DeChamplain, 421 U.S. 21 (1975) -......... 29
Memorial Hospital v. Maricopa County, 415 U.S. 250
(1974) .. sane 22, 23, 24, 25
Neale v. Hayduk, 420 U.S. 915 (1975) 28
Northwestern Laundry v. Des Moines, 239 U.S. 486
(1916) 29
Palmore v. United States, 411 U.S. 389 (1973) -............ 28
Planned Parenthood of Central Missouri v. Danforth,
428 U.S. 52 (1976) 13, 14
Poelker v. Doe, 432 U.S. 519 (1977) 15, 16
Preiser v. Newkirk, 422 U.S. 395 (1975) -............--.-.....-..-- 8
Richardson v. Blumenthal, 435 U.S. 939 (1978) -........... 28
Roe v. Wade, 410 U.S. 113 (1973) -........... 11, 12, 14, 21, 22, 24
San Antonio School District v. Rodriguez, 411 U.S. 1
(1973) 11, 16, 22
Shapiro v. Thompson, 394 U. S. 618 (1969) .. 16, 22, 23, 24, 25
Singleton v. Wulff, 428 U.S. 106 (1976) 14, 25
Turner v. Department of Employment Security, 423
U.S. 44 (1975) ...... 22
Union Trust Co. v. Westhus, 228 U.S. 519 (1913) .. 30, 31, 32
United Public Workers of America v. Mitchell, 330
U.S. 75 (1946) 9
United States v. American Friends Service Committee,
419 U.S. 7 (1974) 30
United States v. Munsingwear, Inc., 340 U.S. 36 acca _
United States v. Naponiello, 267 U.S. 577 (1925) —.......... 32
United States v. Raines, 362 U.S. 17 (1960) -.... . 14,8 9, 2
United States v. Robinson, 361 U.S. 220 (1960) _..... 27
United States Department of Agriculture v. Moreno,
413 U.S. 528 (1973) 17, 21
Weinberger v. Weisenfeld, 420 U.S. 636 (1975) -........... 17
Westcott v. Califano, 99 S.Ct. 2655 (1979) 16
Williams v. Zbaraz, 99 S.Ct. 2095 (1979) ..................... 18, 33
iv
Williams v. Zbaraz, 99 S.Ct. 2833 (1979) 33
Zablocki v. Redhail, 434 U.S. 374 (1978) 12, 22
Zbaraz v. Quern, 596 F.2d 196 (7th Cir. 1979) ................
2, 3, 5, 6, 8, 10, 20, 25, 29
Zbaraz v. Quern, No. 77 C 4522 (N.D. Til. April 30, 1979)
2, 7, 9, 26
Zbaraz v. Quern, 469 F.Supp. 1212 (N.D. Tl. 1979) ..
3, 6, 8, 10, 11, 12, 15, 17, 22
Constitution, Statutes, Regulations
and Other Authorities
U.S. Consr. art. ITI, §2 7,8
U.S. Constr. amend. V 8
U.S. Const. amend. XTV, §1 5, 8, 9, 23
28 U.S.C. §1252 (1976) -........... 2, 3, 5, 9, 26, 27, 28, 29, 30, 32
28 U.S.C. §1254 (1976) 28, 32
28 U.S.C. §1257 (1976) 28
SO UT). Fa Ce sac nis we snendesesannpacaeinonncnseoeenne 26, 27, 29, 30
28 U.S.C. §2103 (1976) 28
28 U.S.C. $2284 (1976) 31
42 U.S.C. §§1396 et seq. (1976 & Supp. I 1977) ................
2, 5, 20, 25, 33, 34
Labor—HEW Appropriations Act, 1979, Pub. L. No.
95-480, §210, 92 Stat. 1586 (1978) (current version at
Pub. L. No. 96-86, §118 (Oct. 12, 1979)) ~......................
2, 5, 6, 7, 8, 10, 20, 25, 30, 34
Act of Feb. 13, 1925, ch. 229, 43 Stat. 938 31
8.Cr.R. 10 .......... 26, 27, 28
S.Cr.R. 11 26, 27, 28
S.Cr.R. 16 2
S.Cr.R. 35 2
S.Cr.R. 48(3) ........ 1
Fep. R. Crv. P. 60(b) (5), (6) 30
20
B
Iu. Rev. Strat. ch. 23, §§5-1, 6-1, 7-1
Il. Dep’t of Public Aid Program Rules ................ 20, App.
S.Rep. No. 404, 89th Cong., Ist Sess. (1965) 19
In The
Supreme Court of the Anited States
October Term, 1979
No. 79-4
JASPER F. WILLIAMS, M.D., and EUGENE F. DIAMOND, M.D.,
Appellants,
Vv.
DAVID ZBARAZ, M.D., MARTIN MOTEW, M.D., individually and on behalf of all
others similarly situated; CHICAGO WELFARE RIGHTS ORGANIZATION, an
Illinois not-for-profit corporation; and JANE DOE, individually and on behalf of
all others similarly situated,
Appellees.
No. 79-5
JEFFREY MILLER, Acting Director, Illinois Department of Public Aild,*
Appellant,
v.
DAVID ZBARAZ, et al.,
Appellees.
No. 79-491
UNITED STATES OF AMERICA,
Appellant,
Vv.
DAVID ZBARAZ, et al.,
Appellees.
On Appeal from the United States District Court for the Northern District of Illinois
MOTION TO VACATE IN PART,
TO DISMISS IN PART, AND TO AFFIRM
* Jeffrey Miller has recently succeeded Arthur F. Quern as
Director of the Illinois Department of Public Aid. Under
Supreme Court Rule 48(3), he is automatically substituted for
Mr. Quern as one of the appellants here. Because the jurisdic-
tional statements of all the appellants refer to the state
appellant as being Mr. Quern, however, appellees shall also do
so.
—
Appellees David Zbaraz, Martin Motew and Jane Doe,
on their behalf and on behalf of all others similarly
situated, and the Chicago Welfare Rights Organization,
pursuant to Supreme Court Rules 16 and 35, respect-
fully move that:
I. Paragraphs 4(a)ii) and 4(b)ii), and the second
sentence of Paragraph 5 of the Final Judgment and
Order of the United States District Court for the
Northern District of Illinois (which grant relief with
respect to Pub. L. No. 95-480, § 210, 92 Stat. 1586
(1978), the “Hyde Amendment”), be vacated, on the
ground that no case or controversy is presented as to the
constitutionality of that provision; and 5
II. The judgment and order of the District Court be
otherwise affirmed in its constitutional holdings, on the
ground that the questions presented are so unsubstantial
as not to require further argument; and
III. The appeal of intervenors Williams and Diamond
(the “intervenors”), insofar as it seeks review of the
previous decision of the Court of Appeals, 596 F.2d 196
(7th Cir. 1979), with regard to the requirements of Title
XIX of the Social Security Act, 42 U.S.C. §§ 1396 et seq.,
be
A. dismissed, on the ground that the intervenors
have never taken a timely appeal from that
decision, and even if a timely appeal has been
taken, 28 U.S.C. § 1252 does not confer juris-
diction to review it; or
B. if the relief sought in subparagraph III.A is
denied, affirmed, on the ground that the ques-
tion presented is so unsubstantial as not to re-
quire further argument.
anal
OPINIONS BELOW
The opinions of the District Court and the Court of
Appeals are designated in the Jurisdictional Statement
of the United States, filed September 21, 1979, and in
appellees’ Conditional Petition for a Writ of Certiorari,
No. 79-64 (the “Petition for Certiorari”), filed July 13,
1979, to review a previous Court of Appeals decision
herein. The April 29, 1979, Memorandum Opinion of the
District Court, previously cited as unreported, has now
been reported at 469 F.Supp. 1212 (N.D. Ill. 1979).
JURISDICTION
The jurisdictional requirements are adequately set
forth in the Jurisdictional Statement of the United
States, insofar as appellants seek review of the judgment
of the United States District Court for the Northern
District of Illinois under 28 U.S.C. § 1252. Insofar as the
intervenors* seek review of the previous decision of the
Court of Appeals, 596 F.2d 196 (7th Cir. 1979), this
Court is without jurisdiction of that appeal, under 28
U.S.C. § 1252 or otherwise. See pp. 25-33 infra.
* While the United States technically intervened in this case,
it will be referred to throughout as the “United States.” Only
defendants Williams and Diamond will be referred to as the
“intervenors.”
=
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Jurisdictional Statement of appellant Quern sets
forth the constitutional and statutory provisions in-
volved.
STATEMENT OF THE CASE
Appellees’ Petition for Certiorari to review the
decision of the Court of Appeals sets forth the Statement
of the Case for this Motion as well.
—5—
QUESTIONS PRESENTED
1. When plaintiffs-appellees have never challenged
Pub. L. No. 95-480, § 210, 92 Stat. 1586 (1978) (the
“Hyde Amendment”), on constitutional or other grounds,
and a ruling on the issue is not necessary to give them
full relief, is there an absence of an article III case or
controversy as to the constitutionality of that provision,
so that the part of the District Court judgment
granting relief with respect to it should be vacated?
2. Does Illinois’ restrictive abortion funding policy,
which denies coverage of almost all medically necessary
abortions under otherwise comprehensive state medical
assistance programs, violate the equal protection clause
of the fourteenth amendment to the United States
Constitution?
3. Does 28 U.S.C. § 1252 confer upon this Court juris-
diction over the intervenors’ appeal, insofar as it seeks
review of the Court of Appeals’ earlier decision herein,
596 F.2d 196 (7th Cir. 1979)?
4. Does Illinois’ restrictive abortion funding policy,
which denies coverage of almost all medically necessary
abortions under state medical assistance programs,
violate Title XIX of the Social Security Act, 42 U.S.C.
§§ 1396 et seq.?*
* If this Court resolves Question 3 in the negative, it will
have no occasion to reach this question, which is presented
cnly by the intervenors’ appeal from the Court of Appeals’
ecision.
—6—
ARGUMENT
THAT PART OF THE DISTRICT COURT JUDG-
MENT RULING ON THE HYDE AMENDMENT
SHOULD BE VACATED, AS THERE IS NO CASE OR
aa WITH RESPECT TO THAT PRO-
Plaintiffs-appellees have never challenged the consti-
tutionality of the Hyde Amendment in this litigation, or
sought relief with respect to it or against any federal
official.* Zbaraz v. Quern, 596 F.2d 196, 197 (1979); R.
133:** Transcript of April 30, 1979, hearing, 16-17;
see Petition for Certiorari, 7-9, 25. The District Court
recognized that plaintiffs were “attack[ing] only the
legality of an Illinois statute.” Memorandum Opinion,
reprinted in U.S. Jurisdictional Statement, at 5a, n.3. It
nonetheless passed upon the constitutionality of the
Hyde Amendment because it reasonably read the Court
of Appeals’ decision as having required it to do so. Jd.
See Zbaraz v. Quern, 596 F.2d at 202.
One of the grounds appellees have advanced for
granting their Petition for Certiorari is that the Court of
* Con has enacted a new version of the Hyde Amend-
ment: Pub. L. No. 96-86, § 118 (October 12, 1979). The new
version is identical to that for FY 1979, except that it
eliminates that part of the previous law providing federal
funds for abortions “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.” This new, interim appropriations act expires
on November 20, 1979.
** The record in this case was certified to the Clerk of the
Court on June 20, 1979. Portions of the record cited herein
will be designated by “R.” followed by the number of the item
in the record.
wien
Appeals erred in directing the District Court to consider
on remand the constitutionality of the Hyde Amend-
ment. Petition for Certiorari, 25-26. Appellees have
argued that the article III case or controversy predicate
for the Court of Appeals’ decision in this respect was
absent, for they had never even challenged the constitu-
tionality of the Hyde Amendment, relief against the
restrictive Illinois abortion funding policy being suf-
ficient to grant them the full relief they sought. Jd.
On this appeal, this error should be dealt with by
vacating the portion of the District Court’s decision
granting relief with respect to the Hyde Amendment,
viz: Is 4(a\ii), 4(b\ii), and the second sentence of 95
thereof. The existence of an article III case or contro-
versy as to the constitutionality of the Hyde Amendment
requires that there be a “ ‘substantial controversy
between parties having adverse legal interests, of suf-
ficient immediacy and reality to warrant the issuance of
{appropriate relief].’” Golden v. Zwickler, 394 U.S. 103,
108 (1969), quoting Maryland Casualty Co. v. Pacific
Coal & Oil Co., 312 U.S. 270 (1941). But here not only is
there no “substantial controversy” between the parties as
to the Hyde Amendment, there is no controversy at all.
Similarly, “{(t]his Court . . . ‘has no jurisdiction [to pass
upon the constitutionality of a federal statute] except as
it is called upon to adjudge the legal rights of litigants
in actual controversies.” United States v. Raines, 362
U.S. 17, 21 (1960), quoting Liverpool N.Y. & P.S.S. Co. v.
Commissioners of Emigration, 113 U.S. 33, 39 (1885). In
the exercise of that jurisdiction, it has insisted that it
will “never . . . anticipate a question of constitutional
law in advance of the necessity of deciding it.” Jd.
Appellees have sought coverage within the Illinois
medical assistance programs for all medically necessary
abortions. Granting them relief against the Hyde
=
Amendment secures only federal reimbursement to
Illinois for such abortions; it does not change the scope
of the Illinois program. See Petition for Certiorari, 25.
There is thus ne necessity to pass upon the constitu-
tionality of that federal statute.*
The “established practice” of this Court in dealing
with a civil case from a lower federal court presenting
issues as to which there is no article III case or
controversy, because they have become moot or other-
wise, is to reverse or vacate the lower court judgment as
to those issues. United States v. Munsingwear, Inc., 340
U.S. 36, 39 (1950); Preiser v. Newkirk, 422 U.S. 395, 403
(1975); Gallogly v. Larsen, 420 U.S. 904 (1975); United
States v. Raines, 362 U.S. 17, 20-28 (1960);** see United
* Raines also announced a related constraint: “never to for-
mulate a rule of Constitutional law broader than is required
by the precise facts to which it is to be applied.” United States
v. Raines, 362 U.S. 17, 21 (1960). This rule may independently
command the same result. The Court of a ee apparently
viewed the question of the constitutionality of the Hyde
Amendment under the fifth amendment as indistinguishable
from the question of whether the restrictive Illinois abortion
funding policy was constitutional under the fourteenth amend-
ment, see Zbaraz v. 596 F.2d 196, 203 & n.22 (1979),
thus su ting that the constitutional rule governing disposi-
tion of the latter question would be the same, and no broader,
than that governing the former. But as the District Court
suggested, the two questions might well be different, U.S.
Jurisdictional Statement, at 5a, n.3, so that the constitutionali-
ty of the Illinois — might not be determinative of the con-
stitutionality of the Hyde Amendment. While appellees take
no Bagg ye here with respect to the constitutionality of the
Hyde Amendment, the analyses of the constitutionality of that
provision and of the Illinois policy are not perforce identical;
and this Court should not reach out to decide the Hyde
Amendment question, even if an article III case or contro-
versy as to it were present. Cf. Fusari v. Steinberg, 419 U.S.
379 (1975).
** When there is no case or controversy as to the entire case,
of course, this Court remands with directions to dismiss the
complaint. E.g., Preiser v. Newkirk. But when remaining
(Footnote continued on following page)
chien
Public Workers of America v. Mitchell, 320 U.S. 75, 89
(1946).
II.
THE JUDGMENT OF THE DISTRICT COURT
SHOULD OTHERWISE BE AFFIRMED, ON THE
GROUND THAT THE QUESTIONS PRESENTED ARE
SO UNSUBSTANTIAL AS NOT TO NEED FURTHER
ARGUMENT.
The central question presented is whether Illinois
may, consistent with its obligations under the four-
teenth amendment, withdraw funding for most med-
ically necessary abortions,* while continuing to fund es-
footnote continued
issues are sufficient to make the case justiciable, the Court
retains jurisdiction to pass yay them, even where the issues
deemed not justiciable are the ones upon which this Court’s
jurisdiction was originally invoked. United States v. Raines,
362 U.S. at 27-28 (appeal under 28 U.S.C. § 1252); cf. Farmers
& Mechanics Natl Bank v. Wilkinson, 266 U.S. 508, 506
(1925). So here, if this Court vacates the District Court Hyde
Amendment pe it still retains jurisdiction to pass upon
the question of whether Illinois’ restrictive abortion funding
policy is constitutional, as to which there is very much a live
controversy.
* The Final Judgment and Order that is the subject of this
appeal defines a “medically necessary abortion” as:
an abortion which is necessary for the preservation of the
life or the physical or mental health of a woman seekin
such treatment, in the professional judgment of a licensed
physician in Illinois, exercised in light of all factors rele-
vant to her health.
Final Judgment and Order, 92(d) (reprinted in U.S. Jurisdic-
tional Statement, at 24a). That definition was adopted from
Doe v. Bolton, 410 U.S. 179, 192 (1973). See also Eolautti v.
Franklin, 439 U.S. 379, 387-88 (1979); Beal v. Doe, 432 U.S.
438, 441 n.3 (1977).
The record below shows that abortions covered under the
“medically necessary” standard constitute between 20% and
50% of all state-funded abortions performed in Illinois prior to
(Footnote continued on following vage)
—=
sentially all other medically necessary procedures under
comprehensive medical assistance programs. The Court
of Appeals summarized three respects in which Illinois’
restrictive abortion funding policy discriminates against
those whose medical needs consist of medically neces-
sary abortions:
The constraints [Illinois] impose[s] . . . on medically
necessary abortions which are not imposed on other
kinds of medically necessary care include (1) [a
requirement of] a greater degree of potential harm
from withholding treatment (the threatened dam-
age in the case of an abortion must be “severe and
long-lasting”), (2) the threatened harm must be
physical, and (8) two doctors must make the
determination of likely harm. 596 F.2d 196, 202
n.18 (7th Cir. 1979).*
On remand, the District Court found, on the basis of a
record that is unequivocal on the matter, that the
Illinois discrimination subjects a pregnant woman “to
considerable risk of severe medical problems, which
may even result in her death,” U.S. Jurisdictional
Statement, at 17a, and that “the effect of the [Illinois]
criteria . . . will be to increase substantially maternal
morbidity and mortality among indigent pregnant
footnote continued
the imposition of restrictions on state abortion coverage.
Memorandum Opinion, reprinted in U.S. Jurisdictional State-
ment, at 21a; R. 101: Exh. C, Depp Affidavit, 111; R. 100:
Plaintiffs’ Memorandum, 13n.1 and Exhibits cited therein.
Abortions federally reimbursed under the Hyde Amendment
standard constitute approximately 1.3% of all such abortions.
Id. at 9n.2 and Exhibits cited therein.
* The Court of Appeals was specifically referring to the con-
straints imposed by the Hyde “Amendment. But since_the
restrictive Illinois abortion funding policy mirrors the Hyde
Amendment standards, the characterization is also applicable
to that policy.
a
women.”* Jd. On the basis of these findings the Court
held that the Illinois discrimination was not rationally
related to any “legitimate, articulated state purpose... .”
U.S. Jurisdictional Statement, at 9a (citing San Antonio
School District v. Rodriguez, 411 U.S. 1, 17 (1973) ). The
court specifically found no legitimate state “interest in
preserving the life of a non-viable fetus at the cost of
increased maternal morbidity and mortality among
indigent pregnant women.” U.S. Jurisdictional State-
ment, at 18a.**
* Appellants obviously find themselves embarrassed by
these findings. Having no basis—much less any in the
record—on which to call them into question, however,
appellants proceed as if such findings can be ignored.
Appellant Guern thus refers without supporting reference to
“some small degree of medical risk” and to “minimal ...
elffect [on] pregnant indigent women.” Quern Jurisdictional
tatement, 19. The intervenors make the unsupported state-
ment that “it is an undisputed fact that forms of medical
treatment other than abortion exist to treat health problems
in pregnancy. ...” Intervenors’ Jurisdictional Statement,
19n.2. It is unclear what the “fact” here asserted really is. The
only sense in which the “fact” would be “undisputed,”
however, is the trivial and irrelevant one that some conditions
for which abortion was medically indicated might be treated
or dealt with less effectively by other means. If the alternative
ewer sn were less risky than abortion, abortion would not
medical] necessary to treat the condition. See, eg., R. 101:
Exh. C, Depp Affidavit, 114 & passim. Appellants’ only
attempt to support an assertion of little danger to health from
withholding medically necessary abortions is the intervenors’
reference to a report of the Center for Disease Control. In-
tervenors’ Jurisdictional Statement, 20. The report actually
supports the District Court’s findings. See Appellees’
Memorandum in Opposition to . wes Apotcastens for
Stay, filed in this Court May 18, 1979, at 16-17. But it deals
mainly with a matter beside the point: health problems
resulting from the performance of abortions, not, as here,
those resulting from poor women being unable to secure
medically necessary abortions.
** The District Court was, of course, only following this
Court’s definitive balance of interests in Hoe v. Wade, 410 U.S.
(Footnote continued on following page)
=
The District Court’s analysis emerges naturally from
this Court’s abortion decisions. Starting with Roe v.
Wade, 410 U.S. 113 (1973), this Court has consistently
held that no state interest in the abortion decision is
sufficient to justify placing the pregnant woman’s life or
health in serious jeopardy. Wade, of course, divided
pregnancy into three periods for purposes of legal
analysis; the balance it struck in favor of women’s
privacy during the first two of those periods—before
viability of the fetus—was grounded in the strict judicial
scrutiny made appropriate by the fundamentality of the
right of privacy in abortion decisions. For the period
after viability, however, Wade acknowledged that the
state could assert a compelling interest in the potential
life of the fetus to justify regulation under the strict
version of equal protection scrutiny. Even in the face of
a compelling state interest, however, Wade insisted that
the state could not prevent abortion “when it is
necessary to preserve the life or health of the mother.”
410 U.S. at 163-164 (emphasis added). If a compelling
state interest could not justify state action endangering
footnote continued
113 (1973). See pp. 12-13 infra, What this Court had found
impermissible, the District Court characterized as_il-
legitimate. The intervenors object to the District Court's ter-
minology eater veenes, Jurisdictional Statement, 20n.3), but
whatever form of words is used, it is clear that the District
Court’s ome was that Illinois’ reckless unconcern with ac-
tual maternal life and health is an irrational way to serve any
legitimate interest that might be involved. Thus the District
Court said that “a pregnant woman’s interest in her health so
outweighs any possible state interest in the life of a non-viable
fetus that, for a woman medically in need of an abortion, the
state’s interest is not legitimate.” U.S. Jurisdictional State-
ment, at 20a. In similar fashion this Court found in Zablocki
v. Redhail, 434 U.S. 374, 388 (1978), that a Wisconsin law had
adopted irrational means to pursue interests this Court
acknowled were “legitimate and substantial.” See also
Craig v. Boren, 429 U.S. 190 (1976).
_—
a woman’s health, it follows a fortiori that the weaker
pre-viability, uncompelling state interest that is exclu-
sively involved here cannot do so.
In Doe v. Bolton, 410 U.S. 179 (1973), Wade's
companion case, this Court struck down several Georgia
abortion regulations, repeatedly emphasizing the “pa-
tient’s [medical] needs and . . . the physician’s right to
practice.” 410 U.S. at 199 & passim. Indeed, Bolton
explicitly struck down a two-doctor approval require-
ment, similar to the one imposed here, on the ground of
its failure to satisfy the rational relationship test.* The
Court held that the requirement had “no rational
connection with a patient’s needs and unduly infring[ed/j
on the physician’s right to practice.” 410 U.S. at 199.**
Similar solicitude for the health of the pregnant
woman, and for the physician’s role in protecting it, is
the most persistent theme running through this Court’s
abortion decisions. In Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. 52 (1976), a Missouri
statute prohibited the use of saline amniocentesis as an
* Given the importance of movin uickly in abortion
ph a3 Doe v. Bolton, 410 U.S. 179, 198 (1973), the extra
factor present here and not in Bolton—that the woman patient
is threatened, perhaps imminently, with health damage from
the pregnancy—makes the Illinois two-doctor requirement far
more of ae impediment to pyeserying a woman’s health than
was the Georgia statute. See R. 101: Exh. C, Depp Af-
fidavit, 949; R. 101: Exh. E, Zbaraz Affidavit, 16.
** The Bolton court also stressed tha “the medical judgment
may be exercised in the ign of all factors—physical,
emotional, psychological, familial, and the woman's 27
relevant to the well-being of the patient.” 410 U.S. at 192.
This is the definition of medical necessity adopted by the Dis-
trict Court. It was announced in Bolton, and reiterated in Beal
v. Doe, 482 U.S. 438, 441n.3 (1977), to allow “the attending
physician the room he needs to make his best medical judg-
ment.” 410 U.S. at 192.
ose
abortion technique after the first twelve weeks of
pregnancy. This was no absolute prohibition of abortion,
for alternative abortion techniques remained permissi-
ble. This Court, however, looked behind purported
legislative findings of fact and concluded that Missouri’s
prohibition of the saline method “as a practical matter
. . . forces a woman and her physician to terminate her
pregnancy by methods more dangerous to her health
than the method outlawed.” 428 U.S. at 79. For this
reason:
[T]he outright legislative proscription of saline fails
as a reasonable regulation for the protection of
maternal health. It comes’ into focus, instead, as an
unreasonable or arbitrary regulation designed to in-
hibit, and having the effect of inhibiting, the vast
majority of abortions after the first 12 weeks. As
Pty it does not withstand constitutional challenge.
See also Singleton v. Wulff, 428 U.S. 106 (1976).
Colautti v. Franklin, 489 U.S. 379 (1979), returned to
the same theme, striking down a Pennsylvania attempt
to constrain the doctor’s determination of viability of a
fetus and the abortion techniques he might employ. The
Court reiterated the Bolton standard of medical necessi-
ty, id. at 393-94, and reemphasized the place in the Roe
v. Wade balance of the health of the pregnant woman. A
state may not prohibit or even “regulate” abortion where
abortion is “necessary, in appropriate medical judgment,
* The actual purpose of the Illinois policy is easier to bring
into focus than was Missouri’s. The Illinois policy was espous-
ed in the legislative debates, because “It does not prohibit
anybody from having an abortion. It prohibits the people on
welfare from having an abortion.” R. 36: Addendum K-14 to
Plaintiffs’ Brief, Remarks of Rep. Bradley. This pur of
preventing abortion is, of course, just as constitutionally im-
permissible here as it was in Danf
to preserve the life or health of the pregnant woman.”
439 U.S. at 386-87.
To rebut this analysis, appellants throughout this
litigation have relied almost exclusively on this Court’s
1977 decisions in Maher v. Roe, 432 U.S. 464 (1977), and
Poelker v. Doe, 482 U.S. 519 (1977). What they con-
sistently ignore, however, is that the health con-
siderations that were central to the District Court’s
analysis and to this Court’s decisions reviewed above,
were missing entirely from Maher and Poelker.* Once
this simple fact is acknowledged, Maher and Poelker
cannot be read to denigrate the constitutional
significance of preserving the health of pregnant women
* Maher is the principal case, and it characterizes the abor-
tions under discussion as “non-therapeutic” or “elective” no
fewer than ten times. The same distinction between medically
necessary and medically unnecessary abortion is made ex-
plicit for purposes of the ow | uestion addressed in the
companion ease of Beal v. Doe, 4 S. 438 (1977). The third
abortion decision handed down that day, Poelker v. Doe, 432
U.S. 519 (1977), is marginally more ambig ous, not in
anything said in the brief per curiam opinion, but because the
lower court had noted that the woman plaintiff there did have
some medical problems. Doe v. Poelker, 515 F.2d 541, 543 (8th
Cir. 1975). It is clear, however, that these medical problems
were irrelevant to the legal issue as framed by the plaintiffs
and by the district court. Thus the district court’s pt lg
decision, p. la, infra, popeanecy, characterizes the policy in
issue as one that denied abortion “except for medical reasons.”
See pp. la, 2a, 3a, 7a, infra. This Court meticulously avoided
joining any factual dispute about the medical necessity of an
abortion for the Poelker plaintiff. 432 U.S. at 520n.1. Instead, it
explicitly characterized the issue in the case as involving
_ peutic” or “elective” abortion, and deliberately iden-
tified the Poelker issue with the one elaborately explored in
Maher. Poelker v. Doe, 432 U.S. at_519, 520, 521. As the Dis-
trict Court concluded below, this Court in Poelker “could not
have intended . . . to obliterate the distinction it had carefully
drawn in Maher between niedically necessary and non-
erapeutie abortions.” U.S. Jurisdictional Statement, at 16a,
n.9.
———
requiring abortions. Maher indeed reaffirmed the
primacy of considering the woman’s health. 432 U.S. at:
472.
Appellants make extravagant claims in the name of
Maher and Poelker. Appellant Quern finds in those cases
a principle of “fiscal autonomy.” Quern Jurisdictional
Statement, 18. The intervenors cite them for a “principle
of democratic consensus.” Intervenors’ Jurisdictional
Statement, 16. Each of these slogans amounts to a claim
that courts will not review decisions in social welfare
programs, no matter how irrational or how unrelated
they are to pursuit of legitimate state interests. If
adopted, this approach would resurrect the discredited
distinction between “rights” and “privileges,” repudia-
tion of which was repeated only last term in Westcott v.
Califano, 99 S.Ct. 2655 (1979). See also Shapiro v. Thomp-
son, 394 U.S. 618 (1969); Goldberg v. Kelly, 397 U.S. 254
(1970).
Maher and Poelker support no such scuttling of es-
tablished constitutional law. Maher, indeed, explicitly
repudiates it: “[WJhen a state decides to alleviate some of
the hardships of poverty by providing medical care, the
manner in which it dispenses benefits is subject to con-
stitutional limitations.” 432 U.S. 464, 469-70 (1977).*
And Maher goes on to quote the equal protection stan-
dards announced in San Antonio School District v.
Rodriguez, 411 U.S. 1, 17 (1973)—itself a case involving
public funding: legislation “must . .. be examined to
determine whether it rationally furthers some legitimate
articulated state purpose and therefore does not con-
* The United States omits this essential qualification, and
thus provides a quotation from Maher that is quite mis-
leading. U.S. Jurisdictional Statement, 12.
-_— =
stitute an invidious discrimination. . . .” See Califano v.
Goldfarb, 430 U.S. 199 (1977); Weinberger v. Weisenfeld,
420 U.S. 636 (1975); United States Department of
Agriculture v. Moreno, 413 U.S. 528 (1973).
This is not to deny that courts often accord substantial
deference to state allocative decisions in social welfare
programs, in the absence of some strong countervailing
consideration such as the health of pregnant women in
jeopardy here. See Dandridge v. Williams, 397 U.S. 471
(1970). There are, however, two further distinctions
between this case and most welfare cases. First, this
case involves not only medical necessity but also a
woman’s right to privacy in the abortion decision, mak-
ing heightened judicial scrutiny appropriate. This point
will be developed further below. See pp. 22-25 infra.
Second, state welfare classifications are usually
employed for the purpose of allocating limited funds
among various groups of recipients. In such cases this
Court cannot forbid the disfavoring of one group without
placing the benefits of another group in jeopardy. The
Court expressed this concern in Dandridge by saying:
[T]he Constitution does not empower this Court to
second-guess state officials charged with the dif-
ficult responsibility of allocating limited public
welfare funds among the myriad of potential
recipients. 397 U.S. at 487 (emphasis added).
Illinois’ refusal to fund medically necessary abortions,
however, costs the state a great deal of money, thus
diminishing the benefits available for all groups of
recinients. As the District Court found, and state of-
ficials have effectively conceded, “the costs of pre-natal
care, childbirth and postpartum care are substantially
higher than the cost of abortions. . . . [I]}f the newborn
child then receives public aid, the cost differential is
—18—
even greater.”"* U.S. Jurisdictional Statement, at 14a.
When this Court finds such a classification un-
constitutional, it is faced with no allocative dilemma
such as the one that concerned the Dandridge Court.
Appellants’ misreading of Maher is profound indeed.
For equal protection purposes, the essential distinction
between this case and Maher is that in Maher there was
no relevant discrimination. Connecticut had no program
for funding any non-medically required procedures.
Elective abortions were treated just like other elective
medical procedures (e.g., cosmetic surgery)—given
neither public help nor hindrance. Similarly situated
persons (i.e., those with no medical need) received no
care. There was thus, as a threshhold matter, no dis-
crimination in the exclusion of a “particular medically
unnecessary procedure—nontherapeutic abortions.” Beal
v. Doe, 482 U.S. 438, 446 n.11 (1977).
* Appellant Quern does not quarrel with this findi
Jurisdictional Statement, 13. The intervenors do. mont
however, Jurisdictional Statement, 17, as they re ly have
below, that states can conclude that refusing to fund medical-
ly necessary abortions will save public assistance funds. The
assertion is supported solely rd one article’s misleading
characterization of the results of studies (not in the present
record) of abortion laws in other countries, where both the
laws and the countries’ contraceptive traditions are
dramatically different from those involved here. See R. 111:
Plaintiffs’ Memorandum, 6-9. Both the District Court and the
Court of Appeals understandably +r the argument no heed
when i was presented, along with appellees’ more detailed
rebuttal. Jd. Mr. Justice Stevens said in denying a stay in
this case, “Both the findings of the District and the
expensive for the State to pay the entire evst of an abortion
siV t entire cost o i
than it is for it to pay only its share of the aus maeeoaed
with a full-term pregnancy... . State wi
at ...” Williams v. Zbaraz, Oty 2098" 209 Mac
—19—
These factors preordained the result in Maher. The
equal protection clause does not require the state to
subsidize the exercise of protected rights, even funda-
mental ones, in contexts where it has established no
subsidy program at all; and so it did not require
Connecticut to subsidize non-medically necessary abor-
tions when the state had no existing program for
subsidizing other, non-medically necessary procedures
just because they happened to be provided by physi-
cians. In the present case, however, medically necessary
abortions are singled out as the only medically necessary
procedure not covered under otherwise comprehensive
medical assistance programs.* It is that discrimination
that calls the equal protection clause into play.
* The United States points out, Jurisdictional Statement,
16n.8, that the Medicaid p does not fund in-patient
hospital care in institutions for mental disease for persons
between the ages of 18 and 65, or in institutions for tuberculosis.
But its reliance on this restriction, citing Kantrowitz v.
Weinberger, 388 F.Supp. 1 4), d, 530 F.2d
1034 (D.C. Cir. 1976), cert. denied, 429 U.S. 819 (1976), and
an v. Richardson, F.Supp. 456 (SD. N.Y. yt
nom. lggien v. Weinberger, S.
misplaced. failure to fund through Medicaid certain
state-provided institutional make rational the
institutions had historically been the ibility of the
states sad should rome 80. = = 354 F.Supp. Fees)
. Rep. No. 89th Cong., Ist Sess., reprinted in
U.S. Cope Conc. & Ap. NEWs 2086. By definition, the
rovi
regardless of federal reimbursement. This constitutes neither
an exclusion nor a barrier to care. In similar fashion, if
Illinois had a non-Medicaid, generally available p of
free abortions in state clinics, there would be no for an
overlapping system of Medicaid reimbursement.
Moreover, Medicaid of outpatient chiatric
services does not, despite the United States ion, Juris-
(Footnote continued on following page)
—20—
Stripped of the support they seek from Maher,
appellants must somehow claim that it is rational to
sacrifice maternal health and life, a woman’s privacy,
and considerable public funds to some legitimate state
interests at stake here. Attempting to delineate such an
interest, the United States speaks of a “desire to avoid
spending tax revenues to support an activity that many
taxpayers find morally repugnant.” Jurisdictional State-
ment, 13. This is an expression, not of legitimate
interest, but of constitutional conclusion. Any invidious
discrimination in a spending program could similarly be
footnote continued
dictional Statement, 16n.8, any this analysis. The question
here is not one of preference for one among two equally
effective “kinds of treatment.” By definition, childbirth is not
an effective treatment when a medically necessary abortion is
in order. R. 101: Exh. C, Depp Affidavit, Gs 11-12.
Appellant Quern appears to be alluding to something more
far-reaching when he characterizes the Illinois medical
assistance programs as “non-comprehensive.” Jurisdictional
Statement, 17. The characterization is inaccurate if it is
meant to su that Illinois excludes medically necessary
procedures other than abortion. The Illinois Medicaid pro-
covers “essential medical care.” ILL. REV. STAT. ch. 23
5-1. The state-funded pregreme cover “necessary” medical
care” or “treatment.” Jd. at §§ 6-1, 7-1.
The Illinois Department of Public Aid Rules, set out at App.
B, pp. 8a-l4a infra, do exclude certain procedures from
coverage. In the Court of Appeals, for instance, appellants
placed reliance on the exclusions of artificial insemination,
cosmetic surgery, acupuncture and non-therapeutic steriliza-
tion, and the restriction on quantities of drugs. These
exclusions, however, represent plausible judgments that the
prosseares in question are not medically necessary. Its
tment of medically necessary abortions aside, if Illinois
does exclude a type of no wy oy care from a
category of care covered under its edicaid Program, then it
is —_ contravention of the Act. See Zbaraz v. Quern, 596
F.2d 196, 198-99 (7th Cir. 1979). Illinois’ exclusion of
medically necessary abortions from cove is permissible
under Title XIX only if the Hyde Amendment implicitly
amends the substantive provisions of the Act. Jd. at 199.
justified by taxpayer desire. Cf. United States Depart-
ment of Agriculture v. Moreno, 413 U.S. 528, 534 (1973).
Appellant Quern and the intervenors speak of the state’s
interest in encouraging “childbirth,” Intervenors’ Juris-
dictional Statement, 17; Quern Jurisdictional State-
ment, 18, citing Maher v. Roe, 482 U.S. 464 (1977), for
the authority of the state to favor suct) an interest over a
woman’s right to seek an abortion. But in explaining the
nature of such a state interest in Maher, this Court
consistently referred not to “childbirth” but to “normal
childbirth,” Jd. at 477, 478 (citing Beal v. Doe, 432 U.S.
438, 446 (1977) ), which this Court has never held to
encompass childbirth endangering the life or health of a
woman. This Court’s opinions establish rather that the
State has no legitimate interest in promoting childbirth
which is abnormal because it will be the proximate
cause of impairing the woman’s health. To injure the
mother does not “rationally further” any state interest in
normal childbirth. Maher, 482 U.S. 464, 478 (1977)
(emphasis added).
The only legitimate interest of the state here is the
same one the Court identified in Wade and other
abortion decisions: protection of potential life. Illinois’
devastating way of protecting that interest is reckless in
the extreme. Perhaps inadvertently the United States
captures exactly what is at stake here. “Congress [and
presumably Illinois] could,” the United States claims,
“rationally choose not to fund any abortions [under state
Medicaid programs].” Jurisdictional Statement, 16. This
claim is made in the course of depicting the Illinois
program restrictions as a mere “policy choice,” as if all
values were fungible, and as if Roe v. Wade and
subsequent abortion decisions of this Court did not exist.
If the United States is right, and actual maternal life,
health and privacy could be sacrificed to potential life,
—
then rationality loses all meaning. If the rationality
requirement retains any content, however, it places
Illinois’ reckless disregard of maternal life and health
beyond legislative authority.
The District Court holding can also be affirmed
because the appropriate equal protection test is strict
scrutiny. The District Court rejected applicability of the
compelling state interest test because it found, on the
basis of Maher, that “there is no fundamental right to a
publicly funded abortion. . . .” U.S. Jurisdictional
Statement, at 12a. This misstates the fundamental right
involved. The fundamental right is in making the
abortion decision, Roe v. Wade, 410 U.S. 113, 154 (1973);
Colautti v. Franklin, 489 U.S. 379 (1979); see Zablocki v.
Redhail, 434 U.S. 374, 385 (1978), not in the receipt of
public funds, just as in Shapiro v. Thompson, 394 U.S.
618 (1969), the plaintiffs’ fundamental right was in
‘deciding to travel, not in receiving welfare. But well-
established fourteenth amendment law forbids the state
te discriminate without compelling justification against
exercise of that right, even if the discrimination is in a
funding program. Memorial Hospital v. Maricopa
County, 415 U.S. 250 (1974); Shapiro v. Thompson, 394
U.S. 618 (1969); see Califano v. Webster, 430 U.S. 313
(1977); Turner v. Department of Employment Security,
423 U.S. 44 (1975); San Antonio School District v.
Rodriguez, 411 U.S. 1 (1973). Maher v. Roe, 482 U.S.
464, 470 (1977), explicitly reaffirms this principle, and
nothing in it implies the contrary.
In this case, the only legitimate state interest fur-
thered by the discrimination is protection of potential
life. But Roe v. Wade itself established that such an
interest is less than compelling until viability, while it is
the pre-viability period that is in issue here. The equal
—23—
protection clause thus forbids the discrimination against
appellee Doe’s fundamental right to protect her health
by choosing to have an abortion.
The District Court rejected this analysis, relying in
large measure on this Court’s discussion in Maher of
Shapiro v. Thompson, 394 U.S. 618 (1969). The Shapiro
discussion came in answer to the extreme claim
advanced in Maher—that the state had an affirmative
obligation to finance a woman’s exercise of her funda-
mental privacy right. This Court rejected the analogy to
Shapiro, saying:
If Connecticut denied general welfare benefits to all
women who had obtained abortions and who were
otherwise entitled to the benefits, we would have a
close analogy to the facts in Shapiro, and strict
scrutiny might be appropriate under either the
penalty analysis of Shapiro or the analysis we have
applied in our previous abortion decisions. But the
claim here is that the State “penalizes” the woman’s
decision to have an abortion by refusing to pay: for
it. Shapiro and [the later case of] Maricopa County
did not hold that States would penalize the right to
travel interstate by refusing to pay the bus fares of
po — travelers. Maher v. Roe, 482 U.S. at
474n.8.
But what Illinois has done here is precisely analogous to
the state action in Shapiro and quite unlike the state
action in Maher.
Consider the case of a state without a medical
assistance program that receives a request from a
pregnant woman to finance an abortion she desires only
because she does not want a child. Any claim of
constitutional right to such financing would be rejected,
because a state need not affirmatively subsidize exercise
of even the most “fundamental” of rights. It is precisely
such a claim for subsidy that this Court saw itself facing
in Maher. The plaintiffs there sought medical assistance
funding for a nonmedical matter—purely elective abor-
tions—and they had no more of a constitutional claim to
it than they would to medical assistance funding to get
them to the polls on election day.
In this case, however, in the context of state programs
covering medically necessary services generally, plain-
tiffs, whose pregnancies endanger their health, seek
medical assistance funding for necessary medical care.
They are told that their health must be endangered, that
their medical needs must be disregarded, because the
medical treatment they require involves the exercise of
the fundamental right to choose to have an abortion.
That is precisely analogous to the refusal in Shapiro to
extend welfare benefits to the single class of people who
had exercised their fundamental right to interstate
travel. It is virtually indistinguishable from a similar
denial of medical benefits in Memorial Hospital v. Mari-
copa County, 415 U.S. 250 (1974). In fact, the state
action here is more clearly a “penalty” than that in
either Shapiro or Maricopa County. Shapiro did not rest
upon a determination that denial of welfare actually
deterred interstate travel, 394 U.S. 618, 650 (1969)
(Warren, C.J. dissenting). See Dunn v. Blumstein, 405
U.S. 330, 338-39 (1972). Similarly in Maricopa County,
“there [was] no evidence . . . that anyone was actually
deterred from traveling by the challenged restriction.”
415 U.S. 250, 257 (1974). But here the Illinois law
restricting abortion funding was intended to act* and
* The record amply demonstrates that the Illinois legislature
was motivated by a desire to stop abortions for welfare
recipients. se by Roe v. Wade from outlawin
abortions outright, the legislature chose the one group o
people it thought it might prevent from obtaining abortions.
. (Footnote continued on following page)
=— =
does act as a very substantial impediment to poor
women obtaining medically necessary abortions. See
Singleton v. Wulff, 428 U.S. 106, 117 (1976). Defendant
Quern expressed the opinion that it “would effectively
result in the denial of a medical procedure, abortion, to
low income persons who depend on public assistance
programs for payment of medical bills.” R.8: Plaintiffs’
Memorandum, Exh. A; see p. 9n. supra. There is
here, in other words, not only a penal result similar to
that in Shapiro and Maricopa County, but the inten-
tional and successful use of that penalty to deter
exercise of specially protected fundamental rights.
Il.
THIS COURT IS WITHOUT JURISDICTION OVER
THE INTERVENORS’ APPEAL INSOFAR AS IT SEEKS
REVIEW OF THE EARLIER COURT OF APPEALS’
DECISION HEREIN.
The Court of Appeals held that Title XIX of the Social
Security Act, standing alone, required Illinois to cover
all medically necessary abortions under its Medicaid
program, but that the Hyde Amendment on appropria-
tions had substantively amended Title XIX to permit
Illinois to deny state support for all abortions other than
those for which the Hyde Amendment provided federal
funding. Zbaraz v. Quern, 596 F.2d 196, 199-202 (1979).
The intervenors had argued that neither Title XIX nor
the Hyde Amendment required Illinois to fund any _
abortions at all under its Medicaid program. Under this
footnote continued
Representative Bradley's remarks quoted above, see p. 14n.
supra, reflect the pervasive attitude of the Illinois legislature
that abortion is the equivalent of homicide and hence to be
stopped in virtually any way available. The Illinois aemative
debates are contained in the record at R. 26: Addendum I-L.
ain
view, plaintiffs-appellees would not have been entitled to
even the limited injunction requiring coverage of all
Hyde Amendment abortions which the Court of Appeals
directed the District Court to enter on remand. /d. at
202. R. 87: Order, February 15, 1979 (entering injunc-
tion).*
On May 2, 1979, by the same notice of appeal by
which they took their appeal to this Court from the
April 30, 1979, District Court judgment, the intervenors
purported to invoke 28 U.S.C. § 1252 (1976) to secure as
well review of the Court of Appeals’ decision. Inter-
venors’ Jurisdictional Statement, at App. 11-12. The
notice of appeal was filed in the United States District
Court for the Northern District of Illinois. Jd. at App. 9.
It came 79 days after the Court of Appeals’ decision it
purports in part to appeal.
The attempt to secure appellate review of the Court of
Appeals’ decision falters on two independent grounds:
first, no timely appeal from that decision—indeed no
appeal at all—was taken within the meaning of the
Rules of this Court; and second, even if a timely appeal
had been taken from that decision, 28 U.S.C. § 1252
would not confer upon this Court jurisdiction to review
the decision.
Supreme Court Rules 10 and 11, and 28 U.S.C. § 2101
(1976), as well as 28 U.S.C. § 1252, are determinative of
this Court’s jurisdiction to review on direct appeal the
* The District Court’s subsequent April 30, 1979, injunction
requiring coverage of all pre-viability medically necessary
abortions did not entirely supersede the force of this earlier
order. Thus, the February 15, 1979, injunction continues to
require coverage of certain classes of abortions which the
April 30, 1979, Order does not: viz., all post-viability Hyde
Amendment abortions, and pre-viabili abortions for victims
of rape and incest, even if not medically necessary.
~~
Court of Appeals’ decision at the intervenors’ behest.
Rule 10 provides that for an appeal from a federal court
to be “taken” at all, the appellant must file his notice of
appeal with the clerk of the court from which “the
appeal is taken.” Rule 11 requires, with exceptions not
relevant here, that an appeal is “in time” when the
notice of appeal is filed in the “appropriate court within
the time allowed by law... .” The time “allowed by law”
is set forth in 28 U.S.C. § 2101: a direct appeal under
section 1252 “shall be taken within thirty days after the
entry of the . . . judgment [being appealed].”
Thus, for the intervenors to have taken a timely
appeal from the Court of Appeals’ decision under 28
U.S.C. § 1252, they must have filed their notice of
appeal within thirty days from that decision, and in the
Court of Appeals. They did neither.*
The intervenors offer no reason for their failure to
comply with Rules 10 and 11 or 28 U.S.C. § 2101. But in
any case there is no “excusable neglect” or “harmless
error” by which a party who has failed to take an appeal
in a timely fashion-—much less taken one at all—can
escape the mandate of the rules requiring that one do so.
“The courts have uniformly held that the taking of an
appeal within the prescribed time is mandatory and
jurisdictional.” United States v. Robinson, 361 U.S. 220,
229 (1960). Appeals to this Court are consistently
“dismissed for failure to file [a] notice of appeal within
[the] time provided by this Court’s Rule 11 and 28
U.S.C. § 2101.” Gabriel v. United States, 429 U.S. 877,
* The intervenors have never filed a notice of appeal from
the Court of Appeals’ decision in that Court. Their appeal thus
has never been “taken” at all within the meaning of Rule 10
requiring that “[an] appeal . .. shall be taken by filing a
notice of appeal, . . . at the place prescribed by this rule... .”
onlin
877 (1976); see Richardson v. Blumenthal, 435 U.S. 939
(1978); Art Theater Guild, Inc. v. Ohio ex rel. Schoen, 421
U.S. 957 (1975); Neale v. Hayduk, 420 U.S. 915 (1975).*
Dismissal of the intervenors’ appeal from the Court of
Appeals’ decision is independently required because 28
U.S.C. § 1252 does not confer jurisdiction upon this
Court to review it:
Direct appeals from decisions invalidating Acts of
Congress.
Any party may appeal to the Supreme Court from
an interlocutory or final jud = decree or order
of any court of the United . holding an
* The intervenors’ failure to file their notice of appeal | from
the Court of Appeals’ decision in the ‘ ance that court” also
dooms any ar nae they might advance that their appeal
under 28 U. § 1252 should be construed as an ap
under 28 U.S. © '§ 2540) (1976), tmp for -, “appeal by
a party relying on a State statute a court of ap to
be invalid as repugnant to the Constitution, ros or laws of
the United States .. .” For an appeal “taken” under this
provision within the meaning 0 le 10 oe to be “in time”
within the meaning 0s Rule 11, it would also have to be filed
in the Court of Appeals. Moreover, for = eppes’ to be
“taken,” the notice of appeal must ‘specify the statute or
statutes under which the ‘appeal to this Court is taken.” S.CT.
R. 10. Nor is review of the Court of Ap ppeale. decision at the
intervenors’ behest available under 28 U.S.C. goyh (1976),
which authorizes the papers upon which appeals are Bins to
be treated as a petition for a writ of certiorari if the appeal to
this Court “is improvidently taken.” For this is not a case
where the intervenors’ appeal from the Court of /.ppeals’
decision has been “improvidently” taken; it is one where no
timely appeal has been taken at all. Compare Palmore v.
United States, 411 U.S. 389, 395-97 (1973), and El Paso v.
Simmons, 379 U.S. 497, 501-03 (1965) (granting certiorari
pursuant to section 2103, after dismissing ap use not
within Court’s appellate Jurisdiction | = er 28 U.S.C. §§ 1254
or 1257 (1976) ), with cases cited me 7 7-28 on (not
omnes inline). Se of jection 2 after ‘di issin
appeals as unti Ferguson v. i altivnan
Lines, Inc., 352 U.S. 515, 526n.4 (1957) (Frankfurter, J.
dissenting).
ais
Act of Congress unconstitutional in any civil action,
suit or proceeding to which the United States .. . is
a party. 28 U.S.C. § 1252.
See also 28 U.S.C. § 2101.* This language simply does
not describe the Court of Appeals’ decision, which did
not address the constitutionality of any federal statutory
provisions. Zbaraz v. Quern, 596 F.2d 196, 202 (1979).
The intervenors rely on language in F'usari v. Stein-
berg, 419 U.S. 379, 387n.13 (1975), and United States v.
Raines, 362 U.S. 17, 24n.4 (1960), that an appeal under
28 U.S.C. § 1252 brings the “whole case” before the
Court. This reliance is misplaced. United States v.
Raines and its few successors, eg., McLucas v. De-
Champlain, 421 U.S. 21, 31-32 (1975), are cases in
which the only decision or judgment being appealed is
one holding an “Act of Congress unconstitutional” within
the meaning of section 1252. It is in that context that
this Court has referred to section 1252 as bringing the
“whole case” before the Court.** The referent of the term
“whole case” in those decisions, giving it the most
expansive reasonable reading, was to all questions
passed upon by the Court in the process of “holding an
Act of Congress unconstitutional,” 28 U.S.C. § 1252, or
to matters which might provide alternative grounds for
* Providing, ¥ relevant part, that a “direct appeal to the
Supreme Court from any decision under sections 1252 .. . of
oe title, holdin Sooner | in whole or in part, any Act
enerene, shall be taken within ay days r the entry
of the . . . judgment [being appealed
oe Pusan v. Steinberg, 419 U.S. 379 (1975), and Northwestern
Laundry v. Des Moines, 239 U.S. 486 (191 ), also cited by the
intervenors (Jurisdictional Statement, 4-5), are likewise cases
in which only a single decision was being appealed. In neither
cone, moreover, was review even being sought under section
——
affirmance of that decision.* Those cases therefore do
not support the conclusion that section 1252 confers
jurisdiction to review quite a different decision, from a
different court. Indeed, read in that way, the “manda-
tory and jurisdictional” time limits for seeking appellate
review in this Court could be rendered advisory only.
Thus, the intervenors’ reading of section 1252 is, in
effect, that that provision, if otherwise properly invoked
to secure direct review of a decision holding an Act of
Congress unconstitutional, also confers jurisdiction upon
this Court to review any final judgments previously
rendered in the same case, even if they were entered
years before, and never appealed. Compare 28 U.S.C.
§ 2101.
The applicable and governing cases here are not the
ones upon which the intervenors rely, but such decisions
as Farmers & Mechanics National Bank v. Wilkinson,
266 U.S. 503 (1925), and cases cited therein, 266 U.S.
at 506, eg., Brown v. Alton Water Co., 222 US.
325, 331-24 (1912), and Union Trust Co. v. Westhus, 228
U.S. 519, 522-24 (1913), which arose under the Judicial
Code of 1911 or that of 1891, providing for direct appeal
from the district courts to this Court in an extremely
broad class of cases. In each of these cases, this Court
* These decisions may be read more mervowyy. to + pent
review only of issues upon by the lower federal court
and appealed to this Court, issues which might provide
alternative grounds for the lower court’s decision, or threshold
jurisdictional issues. Cf. United States v. American F'
Service Committee, 419 U.S. 7, 9n.3, 12n.7 (1974). Even under
this narrower reading, this Court would have jurisdiction to
reverse or vacate that part of the District Court judgment
holding the Hyde Amendment constitutional (see ion I
supra), despite appellees’ having withdrawn their appeal from
that part of the District Court's judgment, since absence
of any case or controversy as to the Hyde Amendment
eliminates the District Court’s subject matter jurisdiction over
that question. And see FED. R. Civ. P. 60(b)5), (6).
EE
—
dismissed direct appeals from district court decrees
which merely gave effect to earlier decisions of the
courts of appeals in those cases, by “apply[ing] the law of
the case arising from the decision of the [appeals court].”
Brown v. Alton Water Co., 222 U.S. at 332. The
principle governing the disposition of each appeal in this
Court was that the direct appeal in effect sought this
Court’s review of the earlier court of appeals’ decision,
and that review of that decision could only be taken by
an appeal from, or a writ of error directed to, the
decision of that court, not under the provisions for direct
appeals from the district courts. Thus, in Union Trust
Co. this Court characterized appellants’ attempt to
secure review of the court of appeals’ decision, by
taking a direct appeal from the subsequent district
court decision, as involving an “assertion that by virtue
of the power conferred to take a direct appeal from one
court, authority is given to indirectly review the decision
of another and higher court . . .” 228 U.S. at 522. See
discussions in Farmers & Mechanics National Bank, 266
U.S. at 506; Union Trust Co., 228 U.S. at 521-24; Brown,
222 U.S. at 330-34.
Farmers & Mechanics National Bank, Union Trust
Co., Brown and their companion cases support dismissal
of the intervenors’ appeal from the Court of Appeals’
decision.* Like appellants in those cases, the intervenors
* Shortly after Farmers & Mechanics Nat'l Bank was
decided, Congress nerply. restricted the types of cases which
could be appealed from district courts directly to this Court.
Act of February 13, 1925, ch. 229, 43 Stat. 938. Presumably
for this reason, and because the types of cases which have
since been subject to review a this Court on direct appeal
from district courts, see, ¢.9., U.S.C. § 2284 (1976), are not
ones likely to have first gone to the court of appeals, it
appears that the jurisdictional question Farmers & Mechanics
(Footnote continued on following page)
=
are seeking to secure review of a Court of Appeals’
decision, by taking a direct appeal to this Court under a
provision which, by its terms, does not confer juris-
diction to review that decision at all.* Like appellants in
those cases, the intervenors had at their disposal
provisions for review of “cases in the courts of appeals.”
28 U.S.C. § 1254(1), (2) (1976). They chose not to resort
to these, which might well have secured for them the
review of the Court of Appeals’ decision they now
belatedly seek. And nothing in the Rules of this Court,
the case law, the important principles underlying the
finality of judgments, or the language of 28 U.S.C.
footnote continued
Nat'l Bank and its predecessors addressed did not later arise
with any frequency or at all. In any event, that case, save for
the later summary decision in United States v. Naponiello, 267
U.S. 577 (1925), would appear to be the last of its —, =
neither its authority, nor that of its predecessors
been called into question by any decision of this a Fg
* In Farmers & Mechanics Nat'l Bank, Brown, and Union
Trust Co. " appellants were i » y appeal ny A of =
court o ’ decision - ee 0 that a
subsequent district court = aa ving eft cali
decision. Here, as course
constitutional eS it pee bee oa i
earlier Court o ‘Appeals’ decision, which a did not address these
wena. © In - sense, the intervenors ¥ ay from
Court of Appeals’ decision | unter, 28 1262, are
seeking to x “directly” what the appellants in ny apes S
Mechanics Nat Bank line of cases sass oe he in-
direction.”. Union Trust Co. v. one 228 U.S. at 522 (1913).
The intervenors’ Notice of Ap that they were
February, i 19%, Di to this oh ny 28 U. Se iKOR §
" 1 District Court Order which Cyd effect *
Appeals’ decision on the statutory questio
rd 4 it. Intervenors’ Jurisdictional Statement, at App.
12. The intervenors’ sh nppenen Statement suggests
they have abandoned this appeal. /d. at 4-5. oe aay event,
ursuit of such an would fall in the
principle of the an appeal & Mechanics yarely, with nk line of
cases.
= =
§ 1252 itself suggests that they should be permitted to
secure that review now. Cf. United States v. Munsing-
wear, Inc., 340 U.S. 36, 41 (1950).
IV.
THE SOCIAL SECURITY ACT AND IMPLEMENT-
ING FEDERAL REGULATIONS REQUIRE ILLINOIS
TO COVER ALL MEDICALLY NECESSARY ABOR-
TIONS UNDER ITS MEDICAID PROGRAM.
When this case was previously before Mr. Justice
Stevens, and then the full Court, on appellants’ unsuc-
cessful applications for a stay of the District Court’s
April 30, 1979, judgment,* see Williams v. Zbaraz, 99
S.Ct. 2095 (May 24, 1979) (Mr. Justice Stevens in
chambers); Williams v. Zbaraz, 99 S.Ct. 2833 (June 4,
1979), appellees presented at length the arguments in
support of their claim that the Social Security Act
requires Illinois to cover all medically necessary abor-
tions under its Medicaid program. See Appellees’
Memorandum in Opposition to Appellants’ Applications
for Stay (the “Stay Memorandum”), filed May 18, 1979,
at 12-14 and Exh. D thereto. See also Petition for
Certiorari, 14-18.
The question of whether the Social Security Act
permits Illinois to cover only those abortions necessary
to preserve the pregnant woman’s life, see Intervenors’
Jurisdictional Statement, 8 (Question IV), and p. 5
supra (Question 3), is one not properly before this Court
on this appeal. See Section III supra. If that question is
addressed on its merits in this appeal, however, this
Court should, for the reasons stated in the Stay
Memorandum and the Petition for Certiorari summarily
affirm the Court of Appeals’ judgment insofar as it held
* Only the state appellant and the intervenors sought a stay.
afitien
that Title XIX, standing alone, requires Illinois to cover
all medically necessary abortions under its Medicaid
program, and summarily reverse it insofar as it held
that the Hyde Amendment operates substantively to
amend Title XIX, so as to permit Illinois to deny state
support for almost all medically necessary abortions.*
CONCLUSION
For the reasons stated above, appellees’ Motion to
Vacate in Part, to Dismiss in Part, and to Affirm should
be granted.
Respectfully submitted,
AVIVA FUTORIAN R
ROBERT E. LEHRER S05 fest Chicago Aneoms
WENDY MELTZER Chicago, Illinois 60611
JAMES D. WEILL
Legal Assistance Foundation of Chicago LOIS J. LIPTON
343 South Dearborn Street DAVID GOLDBERGER
Chicago, Illinois 60604 Roger Baldwin
of ACLU, Inc.
5 South Wabash Avenue
Chicago, Illinois 60603
Counsel for Appellees
October 29, 1979
* Indeed, if appellees are deemed to be entitled to raise oe
statutory Hyde Amendment claim as an alternative
for affirmance of the District Court ju t, see Petition for
ago i. 14, tha (alten 1 al could ommery eD Sem
that on that (alternative) ground, without reachin
the constitutional quest ions passed upon by the District Court
or the intervenors statutory uestion of whether Title XIX,
standing alone, requires § fund ing of all medically necessary
abortions under state Medicaid programs.
—la— 5
APPENDIX A
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JANE DOE, ‘:
Plaintiff,
vs.
> No. 73C 565 (A)
JOHN H. POELKER, et al.,
Defendants. J
MEMORANDUM AND ORDER
This is an action by plaintiff seeking to have declared
as unconstitutional those rules and regulations of the pub-
lic hospitals of the City of St. Louis, Missouri, which pro-
hibit utilization of city hospital facilities and personnel
for the performance of abortions except for medical reasons.
Plaintiff, suing under the pseudonym of Jane Doe, is
a married woman who was pregnant at the time of the filing
of the complaint. Defendants are John H. Poelker, Mayor
of the City of St. Louis, Missouri, and R. Dean. Wochner,
Director of Health and Hospitals for the City of St. Louis.
Plaintiff brings this cause of action on her own behalf
and on behalf of the entire class of women who reside in
St. Louis and desire to utilize the services of the St. Louis
public hospitals in order to obtain abortions. Jurisdiction
of this Court is invoked pursuant to 28 USC 1343, 2201
and 2202, and 42 USC 1983. Plaintiff contends that on two
separate occasions during August of 1973 she sought an
abortion at Starkloff Memorial Hospital, a public hospital
run by the City of St. Louis, but was refused based upon
EE EE EL LR | En
—2a—
the hospital’s policy against performing non-therapeutic
abortions. Such policy is alleged to be violative of various
constitutional rights, including: The right to privacy with-
in the patient-physician relationship; the right to obtain
medical services; the right to determine whether to bear
children and maintain marital privacy; the right to re-
ceive adequate medical advice pertaining to pregnancy; and
the right to equal protection and due process of law. Plain-
tiff seeks a judgment declaring invalid all policies and
regulations of the St. Louis public hospitals which restrict
the use of their personnel, services and facilities for the
performance of non-therapeutic abortions, and requests that
defendants be permanently enjoined from enforcing such
policies. :
St. Louis operates two general public hospitals, Max C.
Starkloff Hospital and Homer G. Phillips Hospital, desig-
nated City Hospital Numbers 1 and 2, respectively. The pol-
icy regarding performance of abortions in the city hospitals
is embodied in the hospital by-laws, which provide that
abortions shall be performed only for ‘‘medical reasons”’
(Defendants’ Answer to Plaintiff’s Interrogatory No. 1).
This policy was in effect at both St. Louis public hospitals
ar times relevant to this lawsuit, and remains in effect
today.
At trial plaintiff testified that she has two children and
has miscarried five times since being married in 1965. In
1973 her husband was arrested for a felony and faced with
possible imprisonment. In July, 1973, plaintiff missed her
menstrual period and on August 7th she went to the gyne-
cology clinic at St. Louis City Hospital Number 1 to deter-
mine if she was pregnant. At the clinic she was examined
by a third-year medical student assigned to the hospital.
Plaintiff testified that she inquired about abortion services
at that time, although the student who examined her had
no recollection of such a conversation. That examination dis-
closed no medical justification for an abortion.
On August 13th, plaintiff returned to the gynecology
clinic for the results of her laboratory test. Upon being told
—3sa—
she was pregnant she requested that the hospital perform
an abortion. The medical student who examined her on
this occasion testified that he found nothing to indicate
that an abortion should be performed. He stated at trial
that he was not aware of the city’s policy against abor-
tions, but told plaintiff that he did not know of anyone at
the hospital to refer her to that was not opposed to abor-
tion for moral reasons. However, he made an appointment
for her to visit the obstetrics clinic the next day.
On August 14, 1973, plaintiff was interviewed by Dr.
William J. Ott at the Starkloff Hospital (City Hospital
Number 1) obstetrics clinic, who told her that her medi-
cal condition did not indicate that an abortion was neces-
sary, and that his personal beliefs precluded him from
performing abortions. Plaintiff was examined the same
day and again on August 15th by Dr. Ziad Abu Dalu, who
confirmed that there were no medical reasons to justify
termination of her pregnancy and that the hospital could
not comply with her request for an abortion. Although
Dr. Dalu did not discuss his personal beliefs with plaintiff
at that time, the record discloses that as a member of the
Moslem faith Dr. Dalu would refuse to participate in an
abortion.
The instant suit was filed August 17, 1973. Subsequently,
on August 22nd, plaintiff procured an abortion at a private
St. Louis abortion clinic.
Plaintiff now contends that the above policy of the St.
Louis City public hospitals contravenes certain recent court
decisions which deal with the constitutionality of abortion
regulation. Defendants maintain that such a policy is in vio-
lation of neither express nor judicially established con-
stitutional principles. In addition, defendants state that
continued enforcement of this policy has since 1973 been
supported by Missouri statute, to wit, RSMo 197.032, which
was passed in that year and which provides in part:
‘*1, No physician or surgeon, registered nurse, prac-
tical nurse, midwife or hospital, public or private, shall
—4a—
be required to treat or admit for treatment any woman
for the purpose of abortion if such treatment or ad-
mission for treatment is contrary to the established
policy of, or the moral, ethical or religious beliefs of,
such physician, surgeon, registered nurse, midwife,
practical nurse or hospital. No cause of action shall
accrue against any such physician, surgeon, registered
nurse, midwife, practical nurse or hospital on account
of such refusal to treat or admit for treatment any
woman for abortion purposes.’’
Plaintiff does not seek to challenge RSMo 197.032 in this
proceeding.
Plaintiff has cited to this Court the recent companion
Supreme Court case of Roe v. Wade, 410 U.S. 113 (1973)
and Doe v. Bolton, 410 U.S. 179 (1973), which established
the principle that a woman has a qualified right to obtain
an abortion, which right may override the state’s interest
in restricting her decision during early stages of pregnancy.
The Court’s attention is also directed to the subsequent
Eighth Cireuit decision of Nyberg v. City of Virginia, 495
F. 2d 1342 (1974). In that case the Court was presented
‘with a request from two dnly licensed physicians that they
be permitted to use the facilities of the public municipal
hospital at Virginia, Minnesota, in order to perform abor-
tions on their patients who desired such services. Although
plaintiffs were members of the hospital staff, they were
precluded from performing abortions there by a hospital
resolution similar to that in effect at the St. Louis City
public hospitals.
In Nyberg the Eighth Circuit Court of Appeals first
stated that the abortion procedure was no more compli-
cated than other surgi.) procedures which the plaintiff-
physicians were permitted to perform at the hospital. In
ruling in favor of the doctors, the Court went on to say
at page 1346:
‘‘Tt would be a nonsequitur to say that the abortion
decision and its effectuation is an election to be made
OS le me
—5a—
by the physician and his patient without interference
by the state and then allow the state, through its pub-
lic hospitals, to effectively bar the physician from using
state facilities to perform the operation.’’
Piaintiff now claims that under the authority of these
decisions, a public hospital must be required to provide
facilities and personnel to any woman requesting that such
hospital perform an abortion on her. This Court does not
believe that the above cases were intended to establish such
a broad proposition as that now urged by plaintiff.
In Doe v. Bolton, supra, the Supreme Court invalidated
certain portions of Chapter 26-12 of the Georgia Criminal
Code on grounds that it was over-restrictive of the circum-
stances under which a physician could perform an abortion.
However, the Court explained at page 189 that:
‘‘Roe v. Wade, supra, sets forth our conclusion that
a@ pregnant woman does not have an absolute constitu-
tional right to an abortion on her demand.’’ (Emphasis
added.)
Furthermore, in Doe the Court let stand Section 26-1202
(e) of the Georgia statute which provided as follows:
‘*Nothing in this section shall require a hospital to
admit any patient under the provisions hereof for the
purpose of performing an abortion, nor shall any hos-
pital be required to appoint a committee such as con-
templated under subsection (b) (5). A physician, or any
other person who is a member of or associated with
the staff of a hospital, or any employee of a hospital
in which an abortion has been authorized, who shall
state in writing an objection to such abortion on moral
or religious grounds shall not be required to partici-
pate in the medical procedures which will result in the
abortion, and the refusal of any such person therein
shall not form the basis of any claim for damages on
account of such refusal or for any disciplinary or re-
criminatory action against such person.’’
—tFa—
With regard to this provision, which is very similar to
RSMo 197.032, the Supreme Court stated at pages 197-
198 of its opinion:
‘‘Under §26-1202(e), the hospital is free not to ad-
mit a patient for an abortion. * * * Further, a physician
or any other employee has the right to refrain, for
moral or religious reasons, from participating in the
abortion procedure. * * * §26-1202(e) affords adequate
protection to the hospital * * *.’’ (Emphasis added.)
It is, therefore, axiomatic that no physician or other
hospital employee may be compelled to perform an abor-
tion in violation of his personal beliefs. Nyberg merely held
that where a physician on the staff of a public hospitai
desired to perform a non-therapeutic abortion, the state
could not place an absolute bar on that decision. The Court
concluded at page 1347 of that opinion:
‘*[W hile we propose. to fashion no specific proce-
dures which must be followed nor to require any in-
dividual staff members to participate in abortion pro-
cedures, we do so hold that the hospital facilities must
be made available for abortion services, as they are
for other medical procedures, to those physicians and
their patients who have a right to and request such
facilities.’’ (Emphasis added.)
A careful reading of the Nyberg decision discloses that
it falls far short of holding that a hospital, albeit open to
the public, must be forced to furnish physicians for women
desiring to obtain abortions. The Court was careful to point
out that :
‘*Contrary to the view taken by appellant, Roe and
Doe do not suggest and no hospital need provide fa-
cilities for an abortion merely upon a mother’s de-
mand.’’ (Emphasis added.) 495 F. 2d at page 1346,
footnote 5.
In the instant case this Court is not presented with a
request from any physician desirous of using the St. Louis
City hospital facilities in order to perform an abortion
a>
cet. ene. ie tates OG hee aa Manns
ee ee ee ee
Bee nd ie a ees ae
a ee ee
a ae
—fa—
upon his patient. Nor is there anything in the record to
show that there is any physician presently on the staff of
either public hospital in St. Louis who is willing to admit
the plaintiff as his patient for such a purpose. To the con-
trary, all of the medical personnel who examined plaintiff
at Starkloff Hospital stated emphatically that they hold
strong personal beliefs against abortion, and at one point
plaintiff was told that there was no one to refer her to
who was willing to perform such a procedure in the absence
of any medical justification.
In effect, plaintiff is asking this Court to hold that the
City of St. Louis must provide someone to take care of any
woman who requests an abortion at one of its hospitals.
Such a holding would be clearly contrary to established
constitutional principles, and this Court will issue no order
designed to have such an effect.
This memorandum opinion is adopted by the court as its
findings of fact and conclusions of law, and the clerk of the
Court is directed to prepare and enter the proper order
finding for the defendants.
/s/ .
U.S. District Judge
December 17, 1974
—Sa—
APPENDIX B
ILLINOIS DEPARTMENT OF PUBLIC AID RULES
Bule 4.01 Medical Assistance Program—General Provisions
(a) Under the Medical Assistance Program, the De-
partment pays participating providers for essential medical
care for eligible persons when the care is not available
without charge or covered by health insurance and the per-
son needing care has insufficient resources available to meet
the cost of the required care at Department standards.
(b) ‘*Essential medical care’’ is that which is generally
recognized as standard medical care required because of
disease, disability, infirmity or impairment.
(c) The Department may impose prior approval re-
quirements, as specified by rule, to determine the essen-
tialness of medical care provided in individual situations.
Such requirements shall be based on recommendations of
technical and professional staff and advisory committees.
(d) When recipients are entitled to Medicare benefits,
the Department shall assume responsibility for their de-
ductible and coinsurance obligations, unless the recipients
have income and/or resources available to meet these needs.
The total payment to a provider from both Medicare and
the Department shall not exceed either the amount that
Medicare determines to be a reasonable charge or the
Department standard for the services provided, whichever
is applicable.
(e) The Department shall pay for services and items
not allowed by Medicare only if they are provided in ac-
cordance with Department policy for recipients not entitled
to Medicare benefits.
(f) The Department shall require prior approval for
the prescription of any items not otherwise excluded by
rule but not listed in, or in excess of the quantities listed
Se ea eel Cen nO
Apa aaintes a Pe ss ab ee
—9a—
in, the Department Drug Manual. Approval will be given
if the item or quantity is determined appropriate for the
condition to be treated in the judgment of a consulting
physician or dentist of the Department. Drugs shall be
added to or removed from the Drug Manual on the basis
of the Department’s evaluation of changes in the listing
of drugs recommended by the Committee on Drugs and
Therapeutics of the Illinois State Medical Society. The
Department evaluation shall include an assessment of the
therapeutic value and cost impact.
Rule 4.011 Available Medical Services And Supplies
(a) Recipients shall have free choice of medical pro-
viders. Medical Services and supplies for which payment
may be made by the Department are:
(1) AABD, AFDC, MANG, REFUGEE/REPATRI-
ATE
Physicians’ services
Dental services
Podiatry services
Chiropractic services
Optical services and supplies
Independent laboratory services
Pharmacy services
Hospital services
Clinic services
Home health services
Group care services
Medical equipment, supplies and prosthetic de-
vices
Medicheck services (early and periodic screen-
ing, diagnosis and treatment)
Transportation necessary to secure medical care
Family planning services
Psychological services
(2) GA, AMI
Inpatient hospital care, excluding physical re-
habilitation and psychiatric services
—10a—
Outpatient hospital care, excluding physical re-
habilitation and psychiatric services
Organized clinic care
Laboratory services
Physicians’ services
Drugs
Family planning supplies and services
Nursing home services
Emergency dental care for the relief of pain
and infection, including necessary fillings and
extractions
Transportation to and from the source of medi-
cal care payable by vendor payment, only with
prior approval, except for emergency situa-
tions which require post approval .
(b) Services and supplies for which payment will not
be made:
Services available without charge
Services prohibited by State or Federal law
Experimental procedures
Research oriented procedures
Medical examinations required for entrance into edu-
cational or vocational programs
Autopsy examinations
Preventive services, except those provided through the
Medicheck program for children through age 20, and
required school examinations
Routine examinations
Artificial insemination
Abortion, except in accordance with Rule 4.03
Medical or surgical procedures performed for cosmetic
p ses
Medical or surgical transsexual treatment services
Diagnostic and/or therapeutic procedures related to
primary infertility /sterility
Acupuncture
Subsequent treatment for venereal disease, when such
services are available through State and/or local
health agencies
—lla—
Medical care provided by mail or telephone
Unkept appointments
Non-medically necessary items and services provided
for the convenience of recipients and/or their fam-
ilies
Preparation of routine records, forms and reports
Visits with persons other than a recipient, such as fam-
ily members or group care facility staff.
Chapter 1100 Medical Assistance Program AFDO
The Medical Assistance Program provides for payment for
essential medical care for eligible persons when the care is
not available without charge or covered by health insurance
and to the extent that resources available for payment for
medical care do not meet the cost of care at Department
standards for the services and/or supplies provided.
Only services and supplies which meet the Department of
Health, Education and Welfare definition of medical serv-
ices, and can be paid by vendor payment, are provided
through the Medical Assistance Program.
1100.1 Essential Medical Care
Essential medical care is defined by the Depart-
ment as that which is generally recognized as
standard medical care required because of disease,
disability, infirmity or impairment. The Depart-
ment reserves the right to determine the essen-
tialness of medical care provided in individual
situations based on recommendations of technical,
professional staff and advisory committees.
To make this determination the Department may
impose prior approval requirements whenever
indicated.
1100.2 Freedom of Choice
Recipients have freedom of choice among partici-
pating providers of medical services. They are
free to contact or reject any medical care or treat-
ment plans recommended subject to provisions
as indicated in PO-425.2 - 430.0 - 440.2(c).
—12a—
Chapter 1100 Medical Assistance Program AABD
The Medical Assistance Program provides for payment for
essential medical care for eligible persons when the care is
not available without charge or covered by health insurance
and to the extent that resources available for payment for
medical care do not meet the cost of care at Department
standards for the services and/or supplies provided.
Only services and supplies which meet the Department of
Health, Education and Welfare definition of medical serv-
ices, and can be paid by vendor payment, are provided
through the Medical Assistance Program.
1100.1 Essential Medical Care
Essential medical care is defined by the Depart-
ment as that which is generally recognized as
standard medical care required because of disease,
disability, infirmity or impairment. The Depart-
ment reserves the right to determine the essen-
tialness of medical care provided in individual
situations based on recommendations of technical,
professional staff and advisory committees.
To make this determination the Department may
impose prior approval requirements whenever
indicated.
1100.2 Freedom of Choice
Recipients have freedom of choice among partici-
pating providers of medical services. They are
free to accept or reject any medical care or treat-
ment plans recommended subject to provisions as
indicated in PO-425.2, 430.2, 440.2(c).
—13a—
Chapter 1100 Provision of Medical Services GA
The provision of medical services to recipients of General
Assistance and Aid to the Medically Indigent restricts pay-
ment to necessary or essential medical care, when such care
is not available without charge or covered by health insur-
ance, and to the extent that resources available for pay-
ment for medical care do not meet the cost of care at De-
partment standards for the services and/or supplies pro-
vided. Preventive care is not considered essential.
Prior to authorization of medical services outlined in this
chapter, the possibility of securing these services from other
agencies is to be explored.
The Department may distinguish and classify the medical
services to be provided in accord with the classes of persons
eligible for medical aid.
1100.1 Essential Medical Care
Essential medical care is defined by the Depart-
ment as that which is generally recognized as
standard medical care required because of disease,
disability, infirmity or impairment. The Depart-
ment reserves the right to determine the essen-
tialness of medical care provided in individual
situations based on recommendations of technical,
professiona! staff and advisory committees.
To make this “etermination, the Department may
impose prior approval requirements whenever
indicated.
1100.2 Freedom of Choice
Applicants and recipients shall be entitled to free
choice of those qualified vendors of medical serv-
ices meeting the requirements and complying with
the rules and regulations of the department.
100. Illinois Medical Assistance Program
101.
102.
Authority
The Illinois Medical Assistance Program is the Fed-
eral-State public assistance program which imple-
ments Title XIX of the Social Security Act (Medi-
caid). It is administered by the Department of Public
Aid under Article V of the Illinois Public Aid Code.
The Department has statutory responsibility for the
formulation of policy in conformance with Federal
and State requirements.
Objective
The objective of the Medical Assistance Program is
to enable eligible recipients to obtain essential medi-
cal care and services necessary to preserve health,
alleviate sickness, and correct handicapping condi-
tions. Such care and services are provided when
they are not either available without charge or cov-
ered by health insurance or other third party re-
source.
Essential care and services are those which are gen-
erally recognized as standard medical services re-
quired because of disease, disability, infirmity or
impairment. The Department reserves the right to
determine the necessity of providing medical care in
individual situations, with the determination based
on recommendations of technical and professional
staff, and advisory committees.
Both fiscal considerations and good administrative
practice require the imposition of certain limitations
and controls on the kind and amount of medical care
and services covered in the Medical Assistance Pro-
gram. Careful review of the subsequent material will
enable the medical services provider to identify spe-
cific Program coverage and limitations.
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.