Petition — JEFFREY C. MILLER v. DAVID ZBARAZ (Nos. 79-5, 79-4, 491, 1268)

IN THE

urt, U.&

FILED

JUL 2 {979 |

|

vo, 4 9 - oy

MICHAEL RODAK, JR., CLERK

ree

Supreme Court of the Unit

Ocroser TERM, 1979

ARTHUR F. QUERN, Director, Illinois Department of

Public Aid, et al.,

Appellants,

vs.

DAVID ZBARAZ, M.D., MARTIN MOTEW, M.D., on their

own behalf and on behalf of all others similarly situated;

CHICAGO WELFARE RIGHTS ORGANIZATION,

an Illinois not-for-profit corporation; and JANE DOE,

on her own behalf and on behalf of all others similarly

situated,

Appellees.

On Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

JURISDICTIONAL STATEMENT

WILLIAM J. SCOTT,

Attorney General of the State of Tlinois,

160 North LaSalle Street,

Chicago, Illinois 60601,

Attorney for Appellant Quern.

Wrtuu A. Wenzet, IIT

Special Assistant Attorney General,

130 North Franklin Street, Suite 300,

Chicago, Illinois 60606,

(312) 793-2380,

Of Counsel.

July, 1979

Printed by Authority of the State of Dlinois<»365

INDEX

Pach

eS 65 dip ay Bae o 6 9/V KS SOK Oe ii

ee eS hs Sire Kp abe kA Un ae EEA E's 2

RE gi a ARE ee Se ry 2

Constitutional Provisions And Statutes Involved .... 3,4

I ss 0 Sacn's 6p bess sh ene bar ane b vais 6

ge errr area e Pree rors 7

The Questions Are Substantial ..................... 16

wer Nas Siete tse ee a os cas 0a 20

Appendix

1. Zbaraz v. Quern, —— F. 2d —— (“Zbaraz IT”)

(slip opinion, February 13, 1979) .......... Al

2. Order modifying permanent injunction dated

and entered February 15, 1979 .............. Al7

3. Order dated February 22, 1979 pursuant to

28 U.S.C. § 2403(a) certifying to the Attorney

feneral of the United States that federal

statute is at issue, entered February 23, 1979.. A19

4. Ordered granting United States permission to

intervene pursuant to 28 U.S.C. § 2403(a),

dated and entered March 8, 1979 ........... A20

or

Memorandum Opinion and Order, dated April

29, 1979, entered April 30, 1979 ............. A21

6. Order denying Intervening defendants motion

for a stay dated and entered April 30, 1979... A41

+

er

7. Order denying motion of all defendants for a

stay pending appeal dated and entered April

AD, eens Aare Mn ee Dy We RNO ura aay Wg A42

8. Final Judgment and Order dated and entered

POE OE OE oa con sa sce) ke A43

9. Defendant Quern’s Amended notice of appeal,

Se EE oie has Ris hha oie eae A56

TABLE OF AUTHORITIES

CasEs: Pace

Association of American Physicians & Surgeons v.

Weinberger, 395 F. Supp. 125 (N.D. Ill. 1975), aff’d,

Me Oe CN 6 os 2 ky Soe iv koe SP eee 18

Beal v. Doe, 4382 U.S. 488 (1977) ..............006. 7

Byrn v. New York City Health & Hospital Corp., 38

App. Div. 2d 316, 324, 329 N.Y.S. 2d 722, 729, aff'd.

31 N.Y. 2d 194, 286 N.E. 2d 887, 335 N.Y.S. 2d 390

BE has See vaWe donate ead seeers ke coen 16

Califano v. McRae, 433 U.S. 916 (1977) ............. 16

Dandridge v. Williams, 397 U.S. 471 (1970) .......... 19

Doe v. Bolton, 410 U.S. 179 (1973) ................ 9

International Ladies’ Garment Workers’ Union v. Don-

nelly Garment Co., 304 U.S. 243 (1938) .......... 3

Maher v. Roe, 432 U.S. 464 (1977) .......... q, 12, 16, 17

McLucas v. DeChamplain, 421 U.S. 21 (1975) ........ 3

Poelker v. Doe, 432 U.S. 519 (1977) ................ 7,18

Preterm, Inc. v. Dukakis, 591 F. 2d 121 (1st Cir.

1979), cert. denied, U.S. —, 47 L.W. 3739

Ce a Rane reamarner amie racy Srarmen te wy aeage 11

Roe v. Wade, 410 U.S. 113 (1978) ....... 00. - cece ee. 16

lil.

United States v. Raines, 362 U.S. 17 (1960) ......---. 3

Zbaraz v. Quern, 572 F. 2d 582 (7th Cir. 1978) ...... 2,9

Zbaraz v. Quern, 596 F. 24 196 (7th Cir. 1979) ...... 2,11

FEDERAL STATUTES AND REGULATIONS

; oie ear e eran nay kre Finwa cs wi 3, 14

ie Ore eee. cas ce hes cons aos Mee eke ranean bs 5 8

98 U.S.C. § 1943(38) (4) ... 2... cece eer cccencceserveees 8

9B U.B.C, $ 240S(m) 2... ccc cceescnccecsecmescenens 12

Poy eg foe f | Arner ee ae eee °

Po ic Tel 2) SRR ee ere we ke ee 2

49 UBC. 8 180Gala) (5) 6c. cece cece wee ereaseenes 7

42 U.S.C. § 189Ga(a)(17) 2... ccc cece cere cere eee nnee 11

42 U.S.C. § 1396b(a) (6) .... cece reece were tener ence 14

Pig ke oer ere ree eee re ee 2,7

Pub. L. 94-439, Section 209, 90 Stat. 1434 ..........-- 7

Pub. L. 95-480, Section 210, 92 Stat, 3006 2. sass passim

42 C.F.R. § 494.10(a)(5) (i)... cece eee eee ee eens 11

STATE STATUTES

P.A. 80-1091, Ill. Rev. Stat. Supp. (1977) ch. 23, 88 5-6, j

SMG & Peer rreeee re ee ee passum

IN THE

Supreme Court of the United States

Ocroser Term, 1979

No.

ARTHUR F. QUERN, Director, Ilinois Department of

Public Aid, et al.,*

Appellants,

vs.

DAVID ZBARAZ, M.D., MARTIN MOTEW, M.D., on their

own behalf and on behalf of all others similarly situated ;

CHICAGO WELFARE RIGHTS ORGANIZATION,

an Illinois not-for-profit corporation; and JANE DOB,

on her own behalf and on behalf of all others similarly

situated,

Appellees.

On Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

JURISDICTIONAL STATEMENT

1. Jasper F. Williams, M.D., and Eugene F. Diamond,

M.D., and the United States, intervening defendants below,

are also appellants in this case.

2

Appellant, Arthur F. Quern, Director of the Illinois De-

partment of Public Aid, defendant below, appeals from the

Final Judgment and Order of the United States District

Court for the Northern District of Illinois, Mastern Divi-

sion, entered April 30, 1979. Appellant submits this Juris-

dictional Statement to show that this Court has jurisdiction

of this Appeal and that the questions presented are so

substantial as to require plenary consideration, with briefs

on the merits and oral argument, for their resolution.

OPINIONS BELOW

The Memorandum Opinion of the District Court, dated

April 29, 1979, is unreported and appears in the Appendix

hereto at p. A-21, infra. Prior opinions of the United States

Court of Appeals for the Seventh Circuit are reported

at 572 F. 2d 582 (7th Cir. 1978) (“‘Zbaraz 1”) and 596 F. 2d

196 (7th Cir. 1979) (‘‘Zbaraz II”). ‘‘Zbaraz IL” is re-

printed in the Appendix hereto at p. A-1, infra.

JURISDICTION

This is a class action brought under the Civil Rights Act

(42 U.S.C. § 1983) challenging an Illinois statute, P.A.

80-1091, insofar as it is alleged to deny indigent, pregnant

women public funds for abortions deemed ‘‘medically neces-

sary’’ by their physicians. Plaintiffs claim that Illinois’

failure to fund all ‘‘medically necessary’’ abortions under

its public assistance programs violates their rights under

Title XIX of the Social Security Act (Medicaid) (42 U.S.C.

§ 1396 et seq.) and the Ninth and Fourteenth Amendments

to the United States Constitution. The action in its present

posture also involves the constitutional validity under the

Fifth Amendment to the United States Constitution of a

federal statute, Section 210, Pub. L. 95-480 (1978) (an

3

amendment to Title XIX, commonly known as the ‘‘Hyde

Amendment’’), which permits states participating in the

Medicaid program to limit funding to the categories of abor-

tions specified in that amendment.

The Final Judgment and Order of the District Court for

the Northern District of Illinois, invalidating on equal pro-

tection grounds both the Illinois and federal statutes, was

entered on April 30, 1979. See, p. A-43, infra.

Appellant Quern filed his original notice of appeal to

this Court in the District Court on May 2, 1979. An amend-

ed notice of appeal was duly filed on May 8, 1979. See, p.

A-56, infra.

This appeal is being docketed in this Court within sixty

(60) days from the filing of the original notice of appeal

in accordance with Supreme Court Rule 13(1). The juris-

diction of this Court in being invoked under 28 U.S.C.

§ 1252. The following cases sustain the jurisdiction of this

Court to review the judgment below on direct appeal from

the District Court: International Ladies’ Garment Workers’

Union v. Donnelly Garment Co., 304 U.S. 248 (1938) ; United

States v. Raines, 362 U.S. 17 (1960); and McLucas v. De-

Champlain, 421 U.S. 21 (1975).

CONSTITUTIONAL PROVISIONS INVOLVED

Fifth Amendment, United States Constitution:

No person shall ... be deprived of life, liberty, or

property, without due process of law...

Ninth Amendment, United States Constitution:

The enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage

others retained by the people.

4

Fourteenth Amendment, United States Constitution:

Section 1.... No State shall... deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.

STATUTES INVOLVED

Section 210, Pub. L. 95-480, 92 Stat. 1586:

None of the Funds provided for in this Act shall

be used to perform abortions except where the life of

the mother would be endangered if the fetus were car-

ried to term; or except for such medical procedures

necessary fox the victims of rape or incest, when such

rape or incest has been reported promptly to a law

enforcement agency or public health service; or except

in those instances where severe and long-lasting phy-

sical health damage to the mother would result if the

pregnancy were carried to term when so determined

by two physicians.

Nor are payments prohibited for drugs or devices to

prevent implantation of the fertilized ovum, or for

medical procedures necessary for the termination of

an ectopic pregnancy.

P.A, 80-1091, Ill. Rev. Stat. Supp. (1977) ch. 23 §§ 5-5,

6-1, 7-1:

§ 5-5. Medical Services.

The Illinois Department, by rule, shall determine the

quantity and quality of the medical assistance for

which payment will be authorized, and the medical

services to be provided, which may include all or part

of the following: ... (15) any other medical care, and

any other type of remedial care recognized under the

laws of this State, but not including abortions, or

induced miscarriages or premature birth, unless, in the

opinion of a physician, such procedures are necessary

for the preservation of the life of the woman seeking

4)

such treatment, or except an induced premature birth

intended to produce a live viable child and such pro-

cedure is necessary for the health of the mother or her

unborn child.

§ 6-1. Eligibility requirements.

Nothing in this Article shall be construed to permit

the granting of financial aid where the purpose of

such aid is to obtain an abortion, induced miscarriage

or induced premature birth unless, in the opinion of

the physician, such procedures are necessary for the

preservation of the life of the woman seeking such

treatment, or except an induced premature birth in-

tended to produce a live viable child and such proce-

dure is necessary for the health of the mother or her

unborn child.

§ 7-1. Eligibility requirements.

Aid in meeting the costs of necessary medical, dental,

hospital, boarding or nursing care, or burial shall be

given under this Article to or in behalf of any person

who meets the eligibility conditions of Section 7-1.1

through 7-1.3, except where such aid is for the pur-

pose of obtaining an abortion, induced miscarriage

or induce premature birth unless, in the opinion of a

physician, such procedures are necessary for the pres-

ervation of the life of the woman seeking such treat-

ment, or except an induced premature birth intended

to produce a live viable child and such procedure is

necessary for the health of the mother or her unborn

child.

QUESTIONS PRESENTED

1. Whether state funding of abortions necessary for the

preservation of the life or the physical or mental health

of an indigent woman as determined in accordance with

the professional judgment of a licensed physician exercised

in light of all factors relevant to her health, is a funda-

mental constitutional right.

2. Whether the Fourteenth Amendment’s equal protec-

tion clause imposes a constitutional obligation upon the

State of Illinois to fund all medically necessary abortions

prior to fetal viability to preserve the physical or mental

health of pregnant indigent women without regard to classi-

fications based on kind and degree of medical need.

3. Whether the State of Illinois, through its normal

democratic processes may make a value judgment favoring

child birth over abortion and to implement that judgment

by the allocation of public funds based upon kind and degree

of medical need to preserve the physical health of pregnant

indigent women.

4. Whether P.A. 80-1091 as modified by the Hyde

Amendment to the Social Security Act imposes an un-

reasonable standard of predictive certainty upon medicaid

physicians for certification of abortions where ‘‘the life

of the mother would be endangered... or ... where severe

and long lasting physical health damage to the mother

would result if’ the pregnancy were carried to term.. .”

which results in a substantial increase in maternal mor-

bidity and mortality among indigent pregnant women.

STATEMENT OF THE CASE

Appellant, Arthur F. Quern, is Director of the Illinois

Department of Public Aid and in that capacity is respon-

sible for the administration of the Illiois Publie Aid Code,

Ill. Rev, Stat., Ch. 23, § 1-1 et seq. (1977). The Illinois

Department of Public Aid is the “single state agency”

designated to administer the Illinois state plan for medical

assistance pursuant to Title XIX of the Social Security

Act, 42 U.S.C. § 1396a(a) (5); ll. Rev. Stat., Ch. 23, § 5-1

et seq. (1977).* Director Quern is a defendant in this

action.

In 1977 the Illinois Legislature in response to the deci-

sions of this Court in Beal v. Doe, 432 U.S. 438 (1977);

Maher v. Roe, 432 U.S. 464 (1977) and Poelker v. Doe, 432

U.S. 519 (1977), and Congressional enactment of the ‘‘ Hyde

Amendment” to Title XIX of the Social Security Act [Pub.

L. 94-439, § 209, 90 Stat. 1434] enacted P.A. 80-1091, Jil.

Rev. Stat. Supp. (1978) Ch. 23, §§ 5-5, 6-1, 7-1 which ex-

cluded from the scope of its medical assistance program

medical services and payment for abortions unless in the

opinion ~f the physician an abortion is “necessary for the

preservation of the life of the woman seeking such treat-

ment”.

Shortly after its enactment, P.A. 80-1091 was challenged

by the plaintiffs in this case by the filing of a class action

under the Civil Rights Act (42 U.S.C. § 1983) in the Dis-

2. Director Quern also administers two wholly state au-

thorized and funded public assistance programs—the Gen-

aliy Assistance program, Jil. Rev. Stat. (1977) ch. 23, § 6-1;

the Aid to the Medically Indigent program, JI. Rev. Stat.

(1977) ch. 23, § 7-1 et seq.

8

trict Court. Alleging jurisdiction under 28 U.S.C. § 1331 and

28 U.S.C. § 1343(3), (4), plaintiff-physicians Zbaraz and

Motew claimed that P.A. 80-1091 denied them and their in-

digent women patients needing medically necessary abor-

tions their rights under the Social Security Act, and the

Ninth and Fourteenth Amendments to the United States

Constitution. Complaint, J 1. Plaintiffs sought declaratory

and injunctive relief for themselves and on behalf of two

classes of persons affected by the statute, namely, a phy-

sician class and a class of all aggrieved women patients of

such physicians.

On December 13, 1977, Jasper F. Williams, M.D. and

Kugene F. Diamond, M.D., pursuant to Rule 24(a) (2), Fed-

eral Rules of Civil Procedure, sought leave of court to

intervene in the lawsuit as parties defendant in order to

protect their own economic interests and for the purpose

of representing the interests of unborn children which

would be impaired by a ruling in favor of the plaintiffs.

The motion for intervention was opposed by the plaintiffs

and was accordingly taken under advisement by the court.

Because the District Court believed that the ‘‘life-preser-

vation” standard utilized in P.A. 80-1091 could be inter-

preted by Illinois courts in a way that would avoid the

federal statutory and constitutional challenges, an ab-

stention order was entered by the District Court on De-

cember 21, 1977 in order to give the Illinois courts an

opportunity to definitively construe the new legislation in

the face of a claim that the statute excluded funding for

‘“medically necessary” abortions as defined by the plain-

tiffs.

Plaintiffs appealed the abstention order to the United

States Court of Appeals for the Seventh Circuit. Pending

the outcome of the appeal, the Seventh Circuit issued an

9

injunction against enforcement of the Illinois statute and

compelled the state to fund all ‘‘therapeutic” abortions.

Relying on this Court’s language in Doe v. Bolton, 410 U.S.

179, 192 (1973), the Court of Appeals defined ‘‘thera-

peutic” to mean ‘‘medically necessary or medically indi-

eated according to the professional medical judgment of a

licensed physician in Illinois, exercised in light of all factors

affecting a woman’s health.” In Zbaraz v. Quern, 572 F. 2d

582 (7th Cir. 1978) (“Zbaraz I”) the Seventh Circuit re-

versed the District Court’s abstention order but intimated

no view on the merits of the relief plaintiffs were seeking.

The Court dissolved its injunction and remanded the case

for expeditious consideration of preliminary injunctive re-

lief.

On remand, plaintiffs filed a motion for leave to have

Jane Doe joined as a party plaintiff and for leave to file

amended and supplemental pleadings. The motion alleged

that Jane Doe was a recipient of Aid to Families with

Dependent Children (““AFDC”’’) public assistance, 42 U.S.C.

§§ 601 et seq., and medical assistance under the ‘‘ Medicaid’’

program, 42 U.S.C. § 1396 et seq. Plaintiff Doe was de-

scribed as a 38 year old woman who had had nine previous

pregnancies, was pregnant again and desired to have an

abortion. Accompanying the motion was the affidavit of

David Zbaraz, M.D. which stated that he had reviewed the

medical records of Jane Doe who had recently been exam-

ined by two other physicians on the staff of Michael Reese

hospital in Chicago, Illinois. Those records disclosed that

Jane Doe had a history of varicose veins and thrombo-

phlebitis (blood clots) of the left leg. In Dr. Zbaraz’s

professional opinion, on the basis of the medical records

he reviewed, Jane Doe’s varicose veins would recur if her

pregnancy were to continue and there existed a 30% risk

10

that the thrombophlebitis would recur necessitating hospi-

talization and bed rest if the fetus were carried to term.

Dr. Zbaraz concluded that an abortion was medically

nec -ssary for Jane Doe, though not necessary to preserve

her life. The District Court by Order of April 25, 1979

granted plaintiffs leave to join Jane Doe as a party plain-

tiff and permitted the filing of amended pleadings. There-

after the parties, including the movants for intervention

as party defendants, filed cross motions for summary

judgment.

On May 15, 1978 the District Court issued a memorandum

opinion which (1) granted the motion to intervene of

Jasper F’. Williams, M.D. and Eugene F. Diamond, M.D.;

(2) certified two Rule 23(b) (2) classes;* (3) denied De-

fendant Quern’s motion to dismiss for want of jurisdiction;

and (4) granted plaintiff’s motion for summary judgment

based solely on the statutory issues raised in the complaint.

The court found that Section 209 of Pub. L. 95-205 (the

‘‘Hyde Amendment” to the Departments of Labor and

Health, Education and Welfare Appropriations Act for

1978) was not intended by Congress to alter the substan-

tive requirements of Title XIX with respect to state fund-

ing of medically necessary abortions. Construing Title XIX

to oblige participating states to fund all medically neces-

3. The classes certified by the District Court consist of

(1) all pregnant women eligible for the Illinois medical

assistance programs for whom an abortion is medically

necessary but not necessary for the preservation of their

lives and who wish such abortion performed, and (2) all

Illinois physicians who are certified to obtain reimburse-

ment for necessary medical services rendered to and who

perform medically necessary abortions for, persons eligi-

ble for medical services under [the ‘‘Illinois medical assis-

tance programs’’].

1]

sary services, the District court concluded that P.A. 80-1091,

by denying funds for abortions deemed ‘‘medically neces-

sary’’ in the discretion of attending physicians, was incon-

sistent with the objectives of the Act, 42 U.S.C. § 1396, the

‘‘reasonable standards’’ requirement of § 1396a(a) (17) and

implementing regulations governing the ‘‘amount, duration

and scope” of services, 42 C.F.R. § 449.10(a) (5) (i).

Upon appeal to the United States Court of Appeals for

the Seventh Circuit, that Court again reversed, Zbaraz v.

Quern, 596 F, 2d 196 (7th Cir. 1979) (‘‘Zbaraz II”), p. A-

1, infra. The Court in ‘‘Zbaraz II’’, agreeing with First

Circuit’s decision in Preterm, Inc. v. Dukakis, 591 F. 2d

121 (1st Cir. 1979) cert. denied, US. , 47 L.W.

3739 (May 15, 1979), held that the Hyde Amendment to the

Medicaid Act was intended by Congress to amend Title

XIX in regard to abortions, and that under the Medicaid

Act, as amended, Illinois could limit medicaid funding to

the categories of abortions specified in that amendment.

Consequently, Illinois was free to deny funding for all

‘*medically necessary’? abortions which a physician could

not certify as falling under one of the designated Hyde

Amendment categories.

There remained, however, in the Court’s opinion serious

constitutional issues which the :>‘striet Court on remand

was directed to consider, including ‘‘whether the Hyde

Amendment, by limiting funding for abortions to certain

circumstances even if such abortions are medically neces-

sary, violates the Fifth Amendment in view of the facts

that no other category of medically necessary care is sub-

ject to such constraints and that abortion has been recog-

nized as a fundamental right.” 596 F. 2d at 202; p. A13,

infra.

Pursuant to the mandate of the Seventh Circuit, the

District Court by Order dated February 15, 1979 (p. A17,

12

infra), modified its permanent injunction entered on May

15, 1978 so as to require Illinois to fund all Hyde Amend-

ment abortions in its enforcement of P.A. 80-1091 thereby

expanding eligibility for abortion funding to cover rape

and incest victims and those instances where severe and

long-lasting physical health damage to the mother would

result if the pregnancy were carried to term when so deter-

mined by two physicians.

Since the constitutionality of a federal statute had been

drawn into question, Judge Kirkland certified this fact to

the Attorney General of the United States pursuant to 28

U.S.C. § 2403(a), Order of February 22, 1979, (p. A19,

infra) and directed the Attorney General to notify the

court whether the United States intended to seek permis-

sion to intervene for presentation of evidence and for

argument on the question of the Hyde Amendment’s con-

stitutionality.

Leave to intervene was granted the United States by

Order of March 8, 1979 (p. A20, infra). Thereafter each

party submitted to the Court a motion for summary judg-

ment supported by briefs addressing the constitutional

issues. Due to health reasons, Judge Kirkland recused him-

self prior to ruling and the case was reassigned to Judge

Grady.

In a memorandum opinion dated April 29, 1979 (p. A21,

infra) Judge Grady held that the Hyde Amendment and

P.A. 80-1091 (as modified by court order) were constitu-

tionally infirm as violative of the plaintiffs’ right to equal

protection of the laws. Finding that this Court’s decision

in Maher v. Roe, 432 U.S. 464 (1977) precluded any claim

of a fundamental right to a state-funded abortion, or that

a state’s refusal to fund abortions amounted to an un-

constitutional penalty, the Court declined to apply strict

13

judicial scrutiny to either statute and instead sought to

determine if there were any legitimate state interests which

were rationally related to the legislative classification at

issue,

The Court rejected the state’s purported interest in

‘fiscal frugality”’ since the costs attendart to childbirth far

exceed those of abortion.‘ Furthermore, with respect to the

state’s acknowledged interest in fetal life, the Court found

as a factual predicate that the employment of Hyde Amend-

ment criteria will necessarily result in increased maternal

morbidity and mortality among indigent pregnant women

and consequently the State could have ‘‘no legitimate in-

terest in preserving the life of a non-viable fetus at the

cost of increase maternal morbidity and mortality.” Memo-

randum Opinion, p. A387, imfra.

Accordingly, Judge Grady granted partial summary

judgment to both plaintiffs and defendants, Final Judg-

ment and Order entered April 30, 1979, 4, p. A45, infra.

The federal and state abortion funding policies were held

unconstitutional as applied prior to fetal viability. After

fetal viability, the court ruled that defendants were free

under equal protection standards to enforce such policies.

Defendant Quern and intervening defendants Williams

and Diamond requested the District Court to stay its Final

4. In briefing the constitutional issues, Appellant Quern

never advanced the argument that P.A. 80-1091 was sup-

ported by an interest in ‘‘fiseal frugality”. Rather, based

upon Mr. Justice Powell’s statements in Maher, the interest

put forward was the authority of the state to make a value

judgment favoring childbirth over abortion and to imple-

ment that judgment by the allocation of public funds for

abortions based upon relative degrees of need, i.e. an

interest in “fiscal autonomy”.

14

Judgment and Order of April 30, 1979. In addition, Defend-

ant Quern sought an order requiring the federal govern-

ment to reimburse the State of Illinois for all medically

necessary abortions required to be performed under the

court’s order with respect to recipients of medical assist-

ance under Title XIX of the Social Security Act, 42 U.S.C.

§ 1396, since that Title contemplates a scheme of coopera-

tive federalism under which participating states are reim-

bursed for approximately 50% of the total amounts ex-

pended for medical assistance. 42 U.S.C. § 1396b(a) (6). The

Assistant United States Attorney representing the United

States Government stated in open court that the Depart-

ment of Health, Education and Welfare did not intend to

reimburse Illinois for any non-Hyde Amendment medically

necessary abortions which would be performed and funded

under the District Court’s Order. The District Court denied

both stay motions and failed to act upon Defendant Quern’s

Motion for federal reimbusement. Orders entered April 30,

1979, p. A41, A42, infra.

On May 2, 1979, Defendant Quern filed his Notice of Ap-

peal from the Final Injunction and Order of April 30, 1979,

indicating that the appeal would be made directly to the

Supreme Court of the United States. On May 8, 1979, the

state defendant filed an Amended Notice of Appeal in or-

der to fully comply with the requirements imposed by Rule

10, Rules of the Supreme Court, which provides that ‘‘the

notice of appeal shall specify ... the statute or statutes

under which the appeal to this Court is taken’’. The

Amended Notice specified that the appeal is pursuant to

28 U.S.C. § 1252.

15

Director Quern and intervenors Williams and Diamond

then applied to Mr. Justice Stevens, Circuit Justice for the

Seventh Circuit, for a stay of the order of the District

Court, No. A-958, No. A-967. The Solicitor General on

behalf of the United States filed a memorandum recom-

mending that the applications for a stay should be granted.

On May 24, 1979, Mr. Justice Stevens, in a written opinion

which intimated no view on the merits of the appeal, de-

clined to grant a stay. U.S. ——, 47 L.W. 3772 (May

29, 1979) Thereafter, applicants in No. A-958 brought the

application for a stay before Mr. Justice Rehnquist who,

in turn, submitted it to the entire Court which denied the

application without opinion. —— U.S. ——, 47 L.W. 3786

(June 5, 1979).

16

THE QUESTIONS ARE SUBSTANTIAL

[Abortion] involves the most basie and volatile prin-

ciples about which men ean differ: life, death, liberty,

privacy, our traditions, our ideals, our moral values.

Byrn v. New York City Health & Hospital Corp.,

38 App. Div. 2d 316, 324, 329 NYS 2d 722, 729,

aff'd. 31 N.Y. 2d 194, 286 N.E. 2d 887, 335 NYS 2d

390 (1972).

The Constitution imposes no obligation on the States

to pay the pregnancy-related medical expenses of in-

digent women, or indeed to pay any of the medical ex-

penses of indigents.

Maher v. Roe, 432 U.S. 464, 469 (1977).

The question of the constitutional validity of the federal

‘“‘Hyde Amendment”’ policy limiting government funding

of abortions and its state progeny, such as Illinois’ P.A.

80-1091, has never been given plenary consideration before

by the Court.®

It is now well-settled that during the first trimester of

pregnancy, the state may not infringe upon a woman’s right

to choose between childbirth and abortion. Roe v. Wade,

410 U.S. 113 (1973). During this period the right of a

woman to seek an abortion and the right of her doctor to

provide that abortion is considered a private matter:

This right of privacy, whether it be founded in the

Fourteenth Amendment’s concept of personal liberty

and restrictions upon state action, as we feel it is, or

5. See, Califano v. McRae, 433 U.S. 916 (1977) vacating

in the wake of Maher v. Roe a decision that had declared

the Hyde Amendment to be unconstitutional.

17

as the District Court determined, in the Ninth Amend-

ment’s reservation of rights to the people, is broad

enough to encompass a woman’s decision whether or

not to terminate her pregnancy. 410 U.S. at 153.

It is equally well-established that a state constitution-

ally may decline to pay for “the pregnancy-related medical

expenses of indigent women, or indeed to pay any of the

medical expenses of indigents.’’ Maher v. Roe, 432 U.S.

464, 469 (1977).

The question arises whether, in conjunction with the

administration of non-comprehensive medical assistance

programs for indigents, federal or state legislative authori-

ties may permissibly classify publicly-funded abortion

services by kind and degree of need so as to prohibit pay-

ment for abortions in those instances where the risk of

damage to maternal health is minimized and legislatively

defined interests in fetal life, childbirth and fiscal autonomy

are enhanced.

The decision below appears to be premised on the su-

premacy of individual medical judgment and opinion when

it clashes with, or fails to comprehend, the collective eco-

nomic and social judgment of the community. It elevates

as a criterion of Fourteenth Amendment jurisprudence the

amorphous cone*pt of ‘medical necessity’*® and scuttles

the reasoning in Maher that sensitive policy choices in a

6. In the affidavit of Oren Richard Depp, M.D. sub-

mitted in support of plaintiffs’ motion for summary judg-

ment, the concept is defined as follows: ‘‘Where a 1% or

higher risk of morbidity or mortality exist, together with

a firm wish by the patient to terminate her pregnancy, I

would consider an abortion to be medically indicated (or

‘medically necessary’ or ‘therapeutic’).” Affidavit of Oren

Richard Depp, M.D., { 11, pp. 6-7.

18

democracy are the province of the legislatures and not the

courts.

Based upon the legal opinion of plaintiff Zbaraz that

P.A. 80-1091 imposes on him an unreasonable standard of

‘*predictive certainty” foreign to the medical profession,

the District Court reaches the speculative conclusion that

the effect of the Hyde Amendment criteria ‘‘will be to in-

crease substantially maternal morbidity and mortality”,

p. A-36, infra. No attempt was made by the District Court

to buttress this reasoning by references to the legislative

histories and debates surrounding P.A. 80-1091 and the

Hyde Amendment. Appellant Quern submits that no such

standard of “predictive certainty’? can be gleaned from

those legislative histories. A fiat disclaimer of plaintiff’s

legal opinion can be found in comments made by the Secre-

tary of Health, Education and Welfare accompanying the

regulations implementing the Hyde Amendment. 43 Fed.

Reg. 31876 (July 21, 1978). Taken together these observa-

tions, along with plaintiffs’ concept of ‘‘medical necessity”,

raise the difficult question of the constitutional rights of

private physicians, in furtherance of their own economic

interests, to curtail governmental] control and discretion

of medical assistance programs for the indigent. See,

Association of American Physicians & Surgeons v. Wein-

berger, 395 F. Supp. 125 (N.D. Ill. 1975), affd. 423 US.

975 (1975).

The legislation at issue rationally furthers important

governmental interests which have been legitimated in prior

decisions of this Court. The state’s interest in fetal life

and the encouragement of childbirth were sufficient to

overcome constitutional challenges in Maher v. Roe, supra

and its companion case, Poelker v. Doe, 432 U.S. 519 (1977).

That the State has a legitimate interest in fiscal autonomy

19

fiinds support in both Maher and Poelker which in turn

derive their strength from Dandridge v. Williams, 397 U.S.

471 (1970).

In the balance is the ‘‘firm desire” of Jane Doe to abort

her pregnancy in the face of some measure of risk to her

health should she carry the fetus to term and her belief

that the constitution compels the state to pay for the

exercise of her right to choose to have an abortion prior

to fetal viability.

Is the right to choose to abort created in Roe a

‘‘non-interference right” as suggested in Maher or does

the factor of some small degree of medical risk alter the

equation so as to trigger an obligation of state funding?

Once the state decides to fund some of the medical expen-

ses of the indigent must it fund all ‘‘medically necessary”

abortions as defined by plaintiffs? Does the concept of

fetal viability as related to maternal health really strip

elected representatives of the people of the power to make

controversial policy decisions in the area of economic and

social welfare legislation?

Illinois State Senator Lemke, the sponsor of P.A. 80-1091,

felt the answer to these questions was ‘‘no”. As he stated

in the debates prior to passage of the statute:

My people don’t want abortions being performed

with their money. If it costs them more to support

these children after they’re born, they will pay that

money gladly as long as it’s properly used.

(Memorandum Opinion, p. A33, infra.)

Appellant Quern submits that on a proper balancing

of the interests involved in the case, this Court will find

that the legislation at issue here is constitutional since

the classifications made rationally further several impor-

tant state interests and only minimally affect pregnant

indigent women and their treating physicians.

20

CONCLUSION

For these reasons, this Court should note probable

jurisdiction of this appeal.

Respectfully submitted,

WILLIAM J. SCOTT,

Attorney General of the State of Illinois,

160 North LaSalle Street,

Chicago, Illinois 60601,

Attorney for Appellant Quern.

Wri A. Wenzet, III

Special Assistant Atterney General,

130 North Franklin Street, Suite 300,

Chicago, Illinois 60606,

(312) 793-2380,

Of Counsel.

July, 1979

Al

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 78-1669, 78-1709, 78-1787,

78-1890, 78-1891, 78-2029

DAVID ZBARAZ, et al.,

Plaintiff s-Appellees,

ARTHUR F. QUERN,

Defendant-A ppellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 77 C 4522—Alfred Y. Kirkland, Judge.

ARGUED NOVEMBER 1, 1973—DECIDED FEBRU-

ARY 13, 1979.

Before CUMMINGS, SPRECHER, and BAUER, Circuit

Judges.

CUMMINGS, Circuit Judge. This class action was brought

under the Civil Rights Act (42 U.S.C. § 1983) to enjoin en-

forcement of a 1977 Illinois statute withdrawing medical

assistance funding in Illinois for all abortions except those

“necessary for the preservation of the life of the [pregnant]

woman.’” Plaintiffs do not object to the refusal to fund

1. Ill. Rev. Stat. Supp. (1977) ch. 23 §§ 55, 6-1, 7-1.

A2

purely elective abortions, and challenge the limitation on

funding only as to medically necessary abortions. They as-

sert that the Illinois statute denies them and the classes they

represent? rights guaranteed by Title XIX of the Social

Security Act (Medicaid) (42 U.S.C. § 1396 et seq.) and by

the Fourteenth Amendment to the United States Constitu-

tion.

Plaintiffs are two doctors whose practice includes the per-

formance for indigent women of medically necessary abor-

tions, most of which are not necessary for the preservation

of their lives; the Chicago Welfare Rights Organization,

whose members include women dependent on Illinois medi-

cal assistance benefits; and Jane Doe, an indigent woman

requiring a medically necessary abortion but one that is not

necessary to save her life. The principal defendant is Ar-

thur F. Quern, Director of the Illinois Department of Pub-

lic Aid, the state agency charged with administering the

medical assistance programs and with enforcement of the

statute in question. Two other doctors were allowed to in-

tervene as defendants in the court below.

In December 1977 the district court issued an order ab-

staining from consideration of the case. Plaintiffs appealed

2. The classes certified by the district court consist of (1)

all pregnant women eligible for the Illinois medical assist-

ance programs for whom an abortion is medically neces-

sary but not necessary for the preservation of their lives

and who wish such abortion performed, and (2) all Illinois

physicians who are certified to obtain reimbursement for

necessary medical services rendered to, and who perform

medically necessary abortions for, persons eligible for the

Illinois medical assistance programs. Because of the in-

junction granted below, the state resumed its prior medical

assistance funding for medically necessary abortions.

A3

and this Court granted them an injunction pending appeal

against enforcement of the Illinois statute insofar as it pro-

hibits state funding for therapeutic abortions.°

In March 1978 we reversed the district court’s abstention

order but did not resolve the merits of plaintiffs’ motion

for a preliminary injunction. Zbaraz v. Quern, 572 F. 2d

582. Thereafter, the district court held that Title XIX of

the Social Security Act and the regulations thereunder re-

quire Illinois to provide medical assistance funding for all

therapeutic abortions. Judge Kirkland concluded that the

Hyde Amendment on which defendants rely does not call

for a contrary result.‘ Because the district court resolved

the case on statutory grounds, plaintiffs’ constitutional chal-

lenges were not resolved. The district court permanently

enjoined defendants from denying payments under the IIli-

nois medical assistance programs to the plaintiff physicians

‘‘and any other recognized and legal medical providers, for

the rendition of medical services to indigent pregnant

women for therapeutic abortions * * *.’’ This injunction is

still in effect.

3. Our injunction order defined ‘‘therapeutic’’ as ‘*medi-

eally necessary or medically indicated according to the

professional medical judgment of a licensed physician in

Illinois, exercised in light of all factors affecting a woman’s

health.” The district court employed this definition in its

final judgment now here on appeal.

4. The Hyde Amendment (quoted infra) was first en-

acted as a rider to the FY 1977 Health, Education and

Welfare appropriations bill. (Section 209 of Pub. L. 95-205;

91 Stat. 1460 Dec. 9, 1977).

A4

This opinion starts with a caveat. This panel is interpret-

ing Congressional and Illinois General Assembly laws as

they are written. Our line of duty is to construe those laws,

neither to condone nor criticize them. Moreover, we do not

start with a clean slate, for six years ago the Supreme Court

under the Due Process clause of the Fourteenth Amendment

invalidated penal laws that restrict legal abortions to those

‘‘procured or attempted by medical advice for the purpose

of saving the life of the mother.’’? Roe v. Wade, 410 U.S.

113, 164. Very recently the Supreme Court reaffirmed that

the right to secure an abortion in the early stages of preg-

nancy is a fundamental right. It also stressed that the abor-

tion decision is primarily a medical one and emphasized the

central role of the physician in helping to reach that deci-

sion. Colautti v. Franklin, USS. , 47 LW 4094. With

those admonitions in mind, our task is readily charted.

The Court of Appeals for the First Circuit has recently

ruled on a challenge to the Massachusetts abortion funding

law that is nearly identical to the challenge mounted here to

the similar Illinois law. Preterm, Inc. v. Dukakis, F. 2d

—— (lst Cireuit, Nos. 78-1324, 78-1325, and 78-1326, decided

January 15, 1979). We agree with Judge Coffin’s majority

opinion in that case.®

5. Two other courts have also recently handed down

opinions in similar cases. In Roe v. Casey:(E.D. Pa., de-

cided December 21, 1978, 47 L.W. 2461) the district court

held that a state could not exclude medically necessary

abortions as a category of care funded under Medicaid. It

is not clear from the abbreviated report whether the court

intended that the state pay for abortions which are med-

ically necessary but not funded under the Hyde Amendment.

In Frieman v. Walsh (W.D. Mo. No. 77-4171-CV-C, de-

cided January 26, 1979), the court similarly held that a

(Footnote continued on next page)

A5

The First Cirenit held in Preterm that Title XIX of the

Social Security Act does not require funding of all medical

care which is deemed ‘‘necessary’’ by the treating physi-

cian, but that it does prohibit a state from singling out medi-

cally necessary abortions as a category of care which would

be funded only under certain narrow circumstances. The

Preterm court concluded that for a state so to discriminate

in the care it provided would conflict with the statutory pro-

vision that state-established standards for determining the

extent of medical assistance should be “reasonable’’ and

‘consistent with the objectives’’ of the Medicaid Act. 42

U.S.C. § 1396a(a) (17). These objectives include furnishing

medical assistance ‘‘to meet the costs of necessary medical

services.’’? 42 U.S.C. § 1396. In addition, the regulations

promulgated pursuant to Title XTX provide that ‘‘the State

may not arbitrarily deny or reduce the amount, duration,

or scope of, such services to an otherwise eligible individual

solely because of the diagnosis, type of illness or condition.’’

45 C.FLR. § 449.10(a) (5) (i).

We agree with the conclusion of the court in Preterm that

limiting Medicaid assistance to life-threatening abortions

‘‘violate[s] the purposes of the Act and discriminate[s] in

(Footnote continued from preceding page)

state could not discriminate against funding medically

necessary abortions under Medicaid. It did not reach the

question whether the Hyde Amendment modified Title XIX,

but held that even viewed as an appropriations measure,

it relieved the states of the obligation of funding non-Hyde

Amendment abortions because under Title XIX the states

are obligated only to fund those procedures for which they

will be reimbursed by the federal government.

A6

a proscribed fashion”’ (slip op. 9).® See also White v. Beal,

555 F. 2d 1146 (3d Cir. 1977) ; Rush v. Parham, 440 F. Supp.

383, 390-391 (N.D. Ga. 1977). The First Cireuit was unani-

mous that the Medicaid Act requires participating states to

provide ‘‘medically necessary’’ abortions under their plans.

Judge Bownes’ point of disagreement with the majority was

that in his view the Hyde Amendment does not permit par-

ticipating states to limit necessary medical services for

abortion to those set forth in that amendment. However,

we agree with the conclusion of the majority in Preterm

that the Hyde Amendment alters Title XTX in such a way

as to allow states to limit funding to the categories of abor-

tions specified in that amendment.

The Hyde Amendment is a provision which has been en-

acted in varying forms into the appropriations bills fund-

ing the Department vf Health, Education and Welfare and

the Labor Department for fiscal years 1977, 1978 and 1979.

The fiseal 1978 and 1979 versions of it provide:

“None of the funds contained in this Act shall be used

to perform abortions except when the life of the mother

would be endangered if the fetus were carried to term;

or except for such medical procedures necessary for

the victims of rape or incest, when such rape or incest

have been reported promptly to a law enforcement

agency or public health service, or except in those

instances where severe and long-lasting physical health

6. The Massachusetts law at issue in Preterm limited

funding to abortions ‘‘necessary to prevent the death of

the mother’’ and to procedures ‘‘necessary for the proper

treatment of the victims of forced rape or incest.” (Slip

op. 2.) That Massachusetts law is similar to but somewhat

more liberal than the Illinois statute here at issue, which

provides funding only when an abortion is “necessary for

the preservation of the life of the woman.”

A7

damage to the mcther would result if the pregnancy

were carried to term when so determined by two phy-

sicians.”” (See note 4 supra.)

Since, like the First Cireuit, we have held that Title XIX

probibits discrimination in funding based on type of condi-

tion, the Hyde Amendment by singling out abortions for

funding under only certain narrowly defined circumstances

is in conflict with the substantive provisions of the Medicaid

Act. It therefore becomes necessary to determine whether

the Hyde Amendment was intended to amend the provisions

of Title XIX or merely to prohibit the expenditure of fed-

eral funds. Under the latter interpretation, the states would

be obligated to provide for medically necessary abortions

for which federal funds would not be available.”

As indicated, we agree with Judge Coffin’s opinion in

Preterm and conclude that the Hyde Amendment did amend

Title XIX. We are most reluctant to conclude that Con-

gress has used an appropriations measure to effect such a

change in the law, both because this reading enhances the

likelihood of confusing and disruptive annual changes in

the substantive law and because the Supreme Court has re-

cently disapproved of so interpreting an appropriations bill.

7. The Hyde Amendment clearly mandates abortion

funding in two categories of cases not covered by the IIli-

nois law—eases of promptly reported rape or incest, and

cases in which severe and long-lasting damage to the

mother’s physical health would restlt fram continuing the

pregnancy. Illinois is required to fund abhortions falling

into these categories under its Medicaid plan and is entitled

to the usual federal reimbursement. The aah bs question

is whether Illinois must pursuant to Title XIX provide at

its own expense abortions which are medically necessary

but which do not qualify for federal reimbursement under

the Hyde Amendment.

A8

Tennessee Valley Authority v. Hill, —— U.S. ——, 46 LW

4673.

The Hyde Amendment on its face refers only to the use

of federal funds. The plaintiffs have asserted that the lan-

guage of the Hyde Amendment itself appears clear, so that

it is—theoretically at least—unnecessary to consult the leg-

islative history. As the preceding discussion indicates, how-

ever, what the states are required to do to comply with the

requirements of Title XIX is not easily determined. Al-

though we have concluded that the states may not exclude

from coverage a whole category of medically necessary care,

that conclusion is not necessarily obvious from the face of

any single provision of the Medicaid Act. Because not all

of the obligations of the states are clearly spelled out in that

statute and because those obligations arise in the context

of a plan for sharing expenses between the federal and state

government,® it becomes appropriate to consult the legisla-

tive history of the Hyde Amendment to see what impact its

provisions were intended to have on the substantive obliga-

tions of the participating states.

A fair-minded reading of the lengthy and often highly

emotional floor debates in both houses of Congress during

the yearly considerations of the Hyde Amendment compels

the conclusion that Congress intended through this vehicle

to alter the scope of Title XIX in regard to abortions. As

the majority opinion in Preterm noted, a few Congressmen

and Senators said that the amendment would simply re-

strict federal funds for abortions.’ In context, however,

8. 42U.S.C. § 1396b sets out the basic scheme for partial

federal reimbursement of state expenditures under Med-

icaid.

9. Some of these comments appear at 123 Cong. Rec.

H. 6086, 6090 (June 17, 1977); 123 Cong. Ree. H. 10826-

10830 (Oct. 12, 1977); 123 Cong. Ree. 8. 11039 (June 29,

1977).

AQ

even these remarks were apparently intended to distinguish

between a prohibition on abortions (which would be uncon-

stitutional under Roe v. Wade, supra), and a mere refusal

to fund abortions. They do not appear to have been intended

to suggest that state —but not federal — funds would be

available. Moreover no one, whether supporting or oppos-

ing the Hyde Amendment, ever suggested that state fund-

ing would be required. To the contrary, the assumption was

that when federal funds were withdrawn, the states, al-

though free to continue to pay for abortions not falling

within the parameters of the Hyde Amendment, would re-

fuse to do so.”°

In addition, a frequently reiterated belief was that tax-

payers ought not to be compelled by the federal govern-

ment to finance abortions which were repugnant to them on

religious or moral grounds." This concern would apply with

at least equal force if the tax expenditures required by fed-

eral law came from the state rather than the federal treas-

ury. Nor is there any suggestion in the Congressional de-

bates that the Hyde Amendment would alter the basic

10. Comments revealing that assumption appear

throughout the debates, but a sample of them can be found

at 123 Cong. Rec. H. 6085 (Rep. Bauman); id. at 6086

(Rep. Stokes); id. at 6088 (Rep. Eckhardt); id. at 6089

(Reps. Fenwick and Spellman); id. at 6092 (Rep. Holtz-

man) ; 2d. at 6093 (Reps. Weiss and Allen) (June 17, 1977);

123 Cong. Rec. H. 10968 (Rep. Sears) (Oct. 13, 1977) ; 123

Cong. Ree. S. 18583-84 (Sen. Bayh): id. at 18589 (Sen.

Packwood) (Nov. 3, 1977); 123 Cong. Ree. 8. 13672 (Sen.

Brooke) (Aug. 4, 1977); 123 Cong. Ree. S. 11040 (Sen.

eo (June 29, 1977).

. Samples of these remarks appear at 123 Cong. Rec.

H. 6085 (Rep. Obey) ; id. at 6088 (Rep. Rudd) ; id. at 6089

(Rep. Young) (June 17, 1977); 123 Cong. Ree. H. 10835

(Rep. Early) (Oct. 12, 1977); 123 Cong. Ree. S. 18584-

18585 (Sen. Helms) (Nov. 3, 1977).

A10

scheme of federal-state sharing of Medicaid expenses.” It

is also clear that Congress was aware that its action could

be construed as legislation via an appropriations bill,’® and

that this was not the preferred method of procedure.”

12. Plaintiffs have correctly noted that Medicaid and

related statutes sometimes do require state expenditures

unmatched by federal funds (Br. at 63-64, note). We have

no doubt of Congress’ authority to condition its expenditure

of Medicaid funds on the states’ expenditure of funds for

related purposes. However, as plaintiffs’ examples indi-

eate, when Congress has imposed such conditions, it has

done so explicitly and for the apparent purpose of encourag-

ing the states to undertake programs Congress deemed to

be desirable. Not only did Congress not explicitly shift the

funding obligation to the states in the Hyde Amendment,

but it also clearly did not intend to encourage abortions.

13. We do not rely on the fact that both the House and

the Senate waived their rules against legislating in an

appropriations bill (House Rule XXI(2); Standing Rules

of the Senate, Rule 16.4) in concluding that the Hyde

Amendment worked a substantive change in the law. Ap-

parently both houses of Congress interpret those rules to

mean that while a limitation of expenditures would be ac-

ceptable, any provision which imposed a duty on federal

officials would go beyond a limitation and run afoul of the

rules. See 123 Cong. Rec. H. 6082 (June 17, 1977). Because

ascertaining when the conditions of the Hyde Amendment

would be fulfilled was interpreted to impose additional du-

ties on federal officials, only a flat ban on the use of funds for

abortions was construed to be within the rules. It was in

order to allow federal funds for abortions in certain limited

circumstances that the rules were waived. Since a flat ban

on abortion funding, although evidently within the proce-

dural rules, would nevertheless conflict with our interpre-

tation of Title XIX, the fact that the rules were waived,

although relied upon by the defendants, is not helpful.

14. Early in the debate on the fiscal 1978 appropriations,

Congressman Hyde spoke as follows:

(Footnote continued on next page)

All

Finally, the circumstances under which the Hyde Amend-

ment was passed distinguish it from Tennessee Valley Au-

thority v. Hill, supra. The problems the Supreme Court

faced when asked to construe the appropriations for the

TVA budget, including the Tellico Dam, as effecting a pro

tanto repeal of the Endangered Species Act do not exist

here. Unlike the situation in the Hill case, there is no ques-

iton here that Congress as a body was well aware of the

implications of the Hyde Amendment and agreed to them.

More importantly, Hill involved the question of when ex-

penditures authorized under one Act should be interpreted

to repeal the substantive provisions of an entirely inde-

‘*Yesterday, remarks were made that it is unfortu-

nate to burden an appropriation bill with complex is-

sues, such as busing, abortion and the like. I certainly

agree that it is very unfortunate. The problem is that

there is no other vehicle that reaches this floor in which

these complex issues can be involved. Constitutional

amendments which prohibit abortions stay languishing

in subcommittee, much less committee, and so the only

vehicle where the Members may work their will, un-

fortunately, is an appropriation bill. I regret that. I

certainly would like to prevent, if I could legally, any-

body having an abortion, a rich woman, a middle-class

woman, or a poor woman. Unfortunately, the only

vehicle available is the HEW medicaid bill. A life is

a life. The life of a little ghetto kid is just as important

ao life of a rich person. And so we proceed in this

ill.

123 Cong. Rec. H. 6083 (June 17, 1977). Subsequently, nu-

merous other Congressmen and Senators, both opponents

and proponents of the bill, indicated awareness that the

amendment would have a substantive impact. See e.g., 123

Cong. Ree. H. 6088 (Rep. Eckhardt) ; id. at 6090 (Rep. Maz-

zoli) ; id. at 6097 (Rep. Meyner) (June 17, 1977) ; 123 Cong.

Rec. S. 11035 (Sen. Brooke) (June 29, 1977) ; 123 Cong. Rec.

S. 19440, 19441 (Sen. Magnuson) ; id. at 19443 (Sen. Javits) ;

id. at 19445 (Sen. Stennis) (Dec. 7, 1977).

Al2

pendent Act.** Here, in contrast, not only was the appropri-

ations measure geared specifically to the substantive provi-

sions of the affected Act, but the amendment was in the

form of limiting previously authorized expenditures rather

than authorizing arguably prohibited expenditures, as in

Hill.

Under these circumstances, mindful that ‘‘ [t]he doctrine

disfavoring repeals * * * applies with even greater force

when the claimed repeal rests solely upon an appropriations

act,’’*® we are nonetheless convinced by the overwhelming

weight of the legislative history that Congress did intend

to alter the substantive requirements of Title XIX by pass-

ing the Hyde Amendment.” Therefore Illinois is not re-

could wreak havoe with the legislative process.

‘*When voting on appropriations measures, legislators

are entitled to operate under the assumption that the

funds will be devoted to purposes which are lawful and

not for any purpose forbidden. Without such an assur-

ance, every appropriations measure would be pregnant

with prospects of altering substantive legislation, re-

pealing by implication any prior statute which might

prohibit the expenditure.”’

Tennessee Valley Authority v. Hill, —— U.S. at ——, 46

LW at 4683.

16. Tennessee Valley Authority v. Hill, U.S. at —,

46 LW at 4683.

17. It is established that Congress has the power to

legislate substantively in an appropriations Act. United

States v. Dickerson, 310 U.S. 554. Moreover, when as here

the substantive change is a prohibition against the use of

funds for previously authorized purposes, the courts have

been less hostile to modifications via appropriations bills.

Eisenberg v. Corning, 179 F. 2d 275, 276 (D.C. Cir. 1949) ;

Friends of the Earth v. Armstrong, 485 F. 2d 1, 9 (10th

Cir. 1973), certiorari denied, 414 U.S. 1171; City of Los

Angeles v. Adams, 556 F. 2d 40, 48-49 (D.C. Cir. 1977).

A13

quired by Title XIX to fund abortions other than those

covered by the Hyde Amendment.

As noted, the district court did not reach the constitu-

tional arguments raised by the parties because it had statu-

tory grounds for its decision. Because the constitutional

issues were not considered below, and in light of the fact

that our interpretation of the Hyde Amendment to modify

the requirements of Title XIX may alter the constitutional

considerations, it would be inappropriate for us to pass on

them now. The parties should have a full opportunity to

develop their positions and the district court to rule on

them. Singleton v. Wulff, 428 U.S. 106, 120. Therefore, we

remand the case for expedited consideration of the consti-

tutional questions that remain open. This consideration

should inelude, inter alia, whether the Hyde Amendment, by

limiting funding for abortions to certain circumstances"

even if such abortions are medically necessary, violates the

Fifth Amendment in view of the facts that no other category

of medically necessary care is subject to such constraints

and that abortion has been recognized as a fundamental

right. Roe v. Wade, supra.

On remand, the permanent injunction granted by the dis-

trict court must be modified forthwith to require defendants

to grant payments to plaintiff physicians and other recog-

nized and legal medical providers for the rendition of medi-

18. The constraints imposed by the Hyde Amendment on

medically necessary abortions which are not imposed on

other kinds of medically necessary care include (1) a

greater degree of potential harm from withholding treat-

ment (the threatened damage in the case of an abortion

must be ‘‘severe and long-lasting’), (2) the threatened

harm must be physical, and (3) two doctors must make the

determination of likely harm.

Al4

eal services to indigent pregnant women for those abortions

fundable under the Hyde Amendment. The defendants have

pointed out that the challenged Illinois law applies to medi-

eal care under fully state-funded plans as well as under

Medieaid (Ill. Rev. Stat. ch. 23 §§ 6-1 and 7-1; General As-

sistance and Local Aid to the Medically Indigent, respec-

tively). Therefore, they assert, since the Illinois statute has

so far been determined only to contravene Title NIN as

altered by the Hyde Amendment, enforcement of the IIli-

nois statute should not be enjoined as it applies to purely

state-funded plans. The plaintiffs urge us to find the statute

non-severable, so that its application to purely state-funded

plans falls with the federally funded portion.”

This presents a close question that necessitates interpret-

ing what the Illinois General Assembly would likely have

done had it been able to forsee the development of this

ease. *° In a similar situation the Illinois Supreme Court

has held a law non-severable (Sperling v. County Officers

Electoral Board, 57 Til. 2d 81 (1974), whereas in others it

has not (Vissering Mercantile Co. v. Annunzio, 1 Tll. 2d 108

(1953); People ex rel. Engle v. Kerner, 32 Ill. 2d 212

19. The defendants suggest that we should not consider

the severability issue since the district court did not artieu-

late this ground for its decision. However, we may affirm a

district eourt’s ruling which is correct as a matter of law

even though the proper ground was not expressed. There-

fore cases cited by defendants to the effect that an appellate

court will not consider a ground for reversal which was not

presented to the district court are inapposite.

20. The Illinois Supreme Court has formulated the test

for severability of provisions of a law as whether ‘‘it can

be said that the General Assembly would not have passed

the statute with the invalid portion eliminated.” People

ex rel. Engle v. Kerner, 32 Ill. 2d 212, 221-222 (1965).

Ald

(1965) ). We have been told that the vast majority of public-

ly funded abortions would come under the Medicaid plan

rather than the purely state plans. In these circumstances,

it is not at all clear that the General Assembly would have

imposed standards for funding from state plans which dif-

fer from the standards for Medicaid funding. The defend-

ant State’s official has informed us that the Illinois law

‘‘represents Illinois’ understanding of Congressional pur-

pose as reflected in the Hyde Amendments to federal wel-

fare appropriations and the Supreme Court’s delineation of

the nature and extent of the qualified ‘right’ to abortion

vis-a-vis the public funding issue * * *’’ (Br. 9).?! Since

the State itself has tied the challenged statute to the proper

interpretation of what is required by Title XIX, evidently

it intended that recipients of purely state funds be treated

consistently with those who receive Medicaid funds.

In light of this history of the challenged law, and in view

of the fact that the resolution of the constitutional issues

will apply equally to the state-funded and the Medicaid-

funded plans,” we conclude that the various provisions of

the law should not be severed and that the modified injune-

tion should apply to all publicly funded abortions.

21. When the Illinois law was passed, the version of the

Hyde Amendment then in effect (fiscal year 1977) provided

funds for abortions only when the life of the mother was

endangered.

22. If the Hyde Amendment is determined to violate the

guarantee of equal protection as it inheres in the Due

Process clause of the Fifth Aniendment, it appears likely

that similar state action would violate the Fourteenth

Amendment.

Al6

Vacated and remanded for further proceedings consistent

herewith.”°

A true Copy:

Teste:

SOHVSSKCBSWSESASSPVECCVeA eee seag se 6 8.0 6 2S 8

Clerk of the United States Court of

Appeals for the Seventh Circuit

23. Our mandate shall issue this day.

i

-

Al7

UNITED STATES DISTRICT COURT, NORTHERN

DISTRICT OF ILLINOIS, EASTERN DIVISION

Name of Presiding Judge, Honorable ALFRED Y.

KIRKLAND.

Cause No. 77 C 4522.

Date—February 15, 1979.

Title of Cause—DAVID ZBARAZ, M.D., et al. v. AR-

THUR F. QUERN.

Brief Statement of Motion—Mandate of the United States

Court of Appeals for the Seventh Circuit.

Pursuant to the mandate of the Court of Appeals for the

Seventh Circuit contained in its Judgment and Opinion of

February 13, 1979, this Court hereby modifies its permanent

injunction entered on May 15, 1978 to provide:

This Court hereby orders that defendant be permanently

enjoined: from:

(1) enforcing Ill. Rev. Stat. Supp. (1977) ch. 23, 8§

0-0, 6-1, 7-1 to deny payments under the Illinois med-

ical assistance programs to plaintiffs Zbaraz, Motew,

and any other recognized and legal medical providers,

for the rendition of medical services to indigent preg-

nant women for: (a) abortions when the life of the

mother would be endangered if the fetus were carried

to term; (b) such medical procedures necessary for

the victims of rape or incest, when such rape or incest

have been reported promptly to a law enforcement

agency or public health service; and (ce) abortions in

those instances where severe and long-lasting physical

health damage to the mother would result if the preg-

nancy were carried to term when so determined by

two physicians, or to deny such payments on behalf of

any such indigent pregnant women for such abortions;

(2) directing notice to any recognized and legal med-

A18

ical providers, or to persons receiving assistance under

the Illinois medical assistance programs, that the abor-

tions and medical procedures described in {[(1) are not,

or will not be, a covered (reimbursable) service under

the Illinois medical assistance programs.

The remainder of the permanent injunction of May 15, 1978

and the definitions contained therein remain in full force

and effect with the exception of § (d) [containing the defini-

tion of ‘‘therapeutic’’] which is hereby deleted.

The parties are to appear for a status hearing at 9:30

a.m. on February 22, 1979 at which time procedures will be

developed to enable expedited consideration of the constitu-

tional questions which remain before this Court as a result

of the judgment and opinion of the Seventh Circuit entered

herein.

Alfred Y. Kirkland.

A19

UNITED STATES DISTRICT COURT, NORTHERN

DISTRICT OF ILLINOIS, EASTERN DIVISION

Name of Presiding Judge, Honorable ALFRED Y.

KIRKLAND.

Cause No. 77 C 4522.

Date—February 22, 1979.

Title of Cause—DAVID ZBARAZ, M.D., et al. v. AR-

THUR F. QUERN, et al.

Brief Statement of Motion—Certification to the Attorney

General of the United States pursuant to 28 U.S.C. § 403(a).

Pursuant to 28 U.S.C. § 2403(a), this Court hereby certi-

fies to the Attorney General of the United States that the

constitutionality of an Act of Congress (specifically the fis-

cal years 1978 and 1979 version of the so-called ‘‘Hyde

Amendment”’ first enacted as a rider to Fiscal Year 1977

Health, Education and Welfare appropriations bill [Sec-

tion 209 of Pub. L. 95-205, 91 Stat. 1460 Dee. 9, 1977]) af-

fecting the public interest is drawn into question in this

lawsuit. The Attorney General is directed to notify this

Court by March 8, 1979 whether the United States intends

to seek permission to intervene herein for presentation of

evidence and for argument on the question of constitution-

ality.

Alfred Y. Kirkland.

A20

UNITED STATES DISTRICT COURT, NORTHERN

DISTRICT OF ILLINOIS, EASTERN DIVISION

Name of Presiding Judge, Honorable ALFRED Y.

KIRKLAND.

Cause No. 77 C 4522.

Date—March 8, 1979.

Title of Cause—DAVID ZBARAZ, M.D., et al. v. AR-

THUR F. QUERN.

Brief Statement of Motion—Request of the United States

for Permission to Intervene Pursuant to 28 U.S.C. § 2403(a)

(contained in the letter of March 7, 1979] and revised brief-

ing schedule on remaining issues.

The request of the United States for permission to inter-

vene pursuant to 28 U.S.C. § 2403(a) [contained in a letter

to this Court from Assistant Attorney General Babcock

dated March 7, 1979] is granted.

Pursuant to the agreement of the parties, the simultane-

ous briefing schedule concerning the remaining constitution-

al issues in this case contained in this Court’s Order of

February 22, 1979 is hereby revised as follows:

The parties are to submit briefs in support of their

positions on the constitutional issues remaining by

March 22, 1979; the parties are to file reply briefs to

the briefs filed by opposing parties by March 29, 1979.

The United States is subject to this briefing schedule.

Filing of these reply briefs will conclude the briefing

on these issues and this Court will give expedited con-

sideration to these issues and will make anv rulings

necessary concerning these issues within a short period

of time thereafter.

The time limits contained in this briefing schedule will be

strictly enforced, by this Court.

Alfred Y. Kirkland.

A21

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID ZBARAZ, M.D., et al.,

Plaintiffs, |

vs. | No. 77 C 4522

ARTHUR F. QUERN, etce.,

Defendant. |

MEMORANDUM OPINION

Plaintiffs brought this class action’ under 42 U.S.C. Sec-

tion 1983 to enjoin enforcement of a 1977 Illinois statute

withdrawing medical assistance funding for all abortions

except those ‘‘necessary for the preservation of the life of

the pregnant woman.’’ P.A. 80-1091, Ill. Rev. Stat. Supp.

(1977) ch. 23, Sections 5-5, 6-1, 7-1.2 Plaintiffs are two doc-

1. The classes certified by the district court consist

of (1) all pregnant women eligible for the Illinois

medical assistance programs for whom an abortion is

medically necessary but not necessary for the preserva-

tion of their lives and who wish such abortion per-

formed, and (2) all Illinois physicians who are certified

to obtain reimbursement for necessary medicai services

rendered to, and who perform medically necessary

abortions for, persons eligible for the Illinois medical

assistance programs.

2. Those sections provide, in relevant part:

Section 5-5. The Illinois Department, by rule, shall

determine the quantity and quality of the medical as-

sistance for which payment will be authorized, and the

(Footnote continued on next page)

A22

tors who perform medically necessary, but not necessarily

life-preserving abortions for indigent women; the Chicago

Welfare Rights Organization, whose members include

women dependent on Illinois medical assistance benefits;

and Jane Doe, an indigent woman for whom an abortion is

medically necessary but not necessary for the preservation

a a

(Footnote continued from preceding page)

medical services to be provided, which may include all

or part of the following: . . . but not including abor-

tions, or induced miscarriages or premature births,

unless, in the opinion of the physician, such procedures

are necessary for the preservation of the life of the

woman seeking such treatment, or except an induced

premature birth intended to produce a live viable child

and such procedure is necessary for the health of the

mother or her unborn child.

Section 6-1. Nothing in this Article shall be con-

strued to permit the granting of financial aid where

the purpose of such aid is to obtain an abortion, in-

duced miscarriage or induced premature birth unless,

in the opinion of a physician, such procedures are

necessary for the preservation of the life of the woman

seeking such treatment, or except an induced prema-

ture birth intended to produce a live viable child and

such procedure is necessary for the health of the

mother or her unborn child.

Section 7-1. Aid in meeting the costs of necessary

medical, dental, hospital, boarding or nursing care, .. .

except where such aid is for the purpose of obtaining

an abortion, induced miscarriage or induced premature

birth unless, in the opinion of a physician, such pro-

cedures are necessary for the preservation of the life

of the woman seeking such treatment, or except an

induced premature birth intended to produce a viable

child and such procedure is necessary for the health

of the mother or her unborn child. 0

A23

of her life. Defendant Arthur Quern is the Director of the

Illinois Department of Public Aid, the state agency respon-

sible for administering Illincis medical assistance pro-

grams. Intervenor-defendants include two doctors and the

United States.

The complaint alleged that P.A. 80-1091 violated plain-

tiffs’ rights under the Social Security Act, 42 U.S.C. Sec-

tion 1396 et seq., and the Ninth and Fourteenth Amend-

ments to the United States Constitution. Plaintiffs sought

both declaratory and injunctive relief. The case was origi-

nally assigned to Judge Kirkland. On December 21, 1977,

he ordered the proceedings stayed pending an interpreta-

tion of P.A. 80-1091 by an Illinois state court. Reasoning

that the Illinois statute could be construed to be consistent

with the Social Security Act, Judge Kirkland decided the

exercise of federal jurisdiction at the time would be im-

prudent. He therefore merely entered and continued plain-

tiffs’ motion for preliminary relief. (Memorandum Opinion

and Order of December 21, 1977, at 3-5).

Plaintiffs appealed and the Seventh Circuit reversed.

Zharaz v. Quern, 572 F. 2d 582 (7th Cir. 1978). In its rul-

ing, the Court of Appeals declined to decide the merits of

plaintiffs’ motion for a temporary restraining order and/or

preliminary injunction. Instead, the court remanded the

ease to the district court for expeditious consideration of

the question of preliminary relief.

On remand, Judge Kirkland held that by failing to cover

‘‘medically necessary’’ abortions, P.A. 80-1091 violated the

Social Security Act and its implementing regulations. The

court reasoned that Illinois’ funding of only “life-preserv-

ing’’ abortions fell short of its responsibilities under Title

XIX to establish ‘‘reasonable standards ... for determin-

ing .. . the extent of medical assistance under the plans

which ... are consistent with the objectives of [the Medi-

A24

eaid program],’’ 42 U.S.C. Section 1396(a) (17). The court

noted that the prime objective of Medicaid is to “furnish

medical assistance [to eligible persons] to meet the costs

of necessary medical services.’’ 42 U.S.C. Section 1396.

(Memorandum Opinion of May 15, 1978, at 8-11).

In his decision, Judge Kirkland also considered the im-

pact of the Hyde Amendment on a state’s responsibilities

under Title XIX. The Hyde Amendment, first enacted as a

rider to the 1977 fiscal year budget for the Department of

Health, Education and Welfare, provides:

None of the funds provided for in this Act shall be

used to perform abortions except where the life of the

mother would be endangered if the fetus were carried

to term; or except for such medical procedures neces-

sary for the victims of rape or incest, when such rape

or incest has been reported promptly to a law enforce-

ment agency or public health service; or except in those

instances where severe and long-lasting physical health

damage to the mother would result if the pregnancy

were carried to term when so determined by two phy-

sicians,

Section 210 of Pub. L. 95-480 ; 92 Stat. 1586, Oct. 18, 1978.

Judge Kirkland interpreted the Hyde Amendment as a pro-

hibition on the use of federal funds rather than a substan-

tive amendment to the Social Security Act. A state’s obliga-

tions under Title XIX to fund medically necessary

abortions, Judge Kirkland thus concluded, survived pass-

age of the Hyde Amendment. Judge Kirkland issued a

permanent injunction restraining defendants from enfore-

ing P.A. 80-1091 to deny payments under the Tllinois medi-

cal assistance programs for therapeutic abortions. (Memo-

randum Opinion of May 15, 1978, at 11-12),

Defendants appealed and again the Seventh Circuit re-

versed. Zbaraz v. Quern, —— F. 24 —, No. 78-1669,

February 13, 1979. Following the lead of the First Circuit

A25

Court of Appeals in Preterm, Inc. v. Dukakis, F, 2d

— (lst Cir. Nos. 78-1324, 78-1325, and 78-1326, decided

January 15, 1979), the court held that the Hyde Amend-

ment, by singling out abortions as a category of care which

would be funded only under certain narrow circumstances,

conflicted unavoidably with Title XIX. Despite its seeming-

ly unambiguous language and its location in an appropri- .

ations measure, therefore, the Seventh Cireuit concluded

that the Hyde Amendment was not just a limitation on the

use of federal funds, but an amendment to Title XTX as

well. (Slip Op. at 6). Since the Amendment removed all but

a narrow category of abortions from Medicaid coverage, it

effectively permitted states also to withhold funds from

non-Hyde Amendment abortions. (Slip Op. at 10)

The Court of Appeals recognized the constitutional ques-

tions raised by its holding* and remanded the case to the

3. The Seventh Cireuit included in its mandate a

directive to pass on the constitutionality of the Hyde

Amendment, even though plaintiffs attack only the

legality of an Illinois statute. After remand, therefore,

the United States was permitted to intervene pursuant

to 28 U.S.C. Section 2403(a). In its brief in support of

the Hyde Amendment, the United States suggested that

the Seventh Circuit ‘‘viewed the federal and state legis-

lation as inextricably intertwined.” (Brief for the

United States, at 4). Although we are not persuaded

that the federal and state enactments are inseparable

and would hesitate to inject into the proceeding the

issue of the constitutionality of a law not directly

under attack by plaintiffs, we are obviously constrained

to obey the Seventh Cireuit’s mandate. Therefore,

while our discussion of the constitutional questions

will address only the Illinois statute, the same analy-

sis applies to the Hyde Amendment and the relief

(Footnote continued on next page)

A26

district court which directions to modify the permanent in-

junction and to decide the constitutional questions.’ (Slip

Op. at 11).

(Footnote continued from preceding page)

granted will encompass both laws. We note that al-

though the Fifth Amendment does not contain an

express Equal Protection Clause, its Due Process

Clause has been construed to incorporate equal pro-

tection guarantees. Weinberger v. Salfi, 422 U.S. 749,

770 (1975); Richardson v. Belcher, 404 U.S. 78, 81

(1971).

4. The Seventh Circuit instructed the district court

to determine whether the withholding of funds for

“medically necessary’’ abortions violated the consti-

tution. (Slip Op. at 11). Prior to P.A. 80-1091, Illinois

funded ‘‘therapeutic” abortions, defined as ‘medically

necessary or medically indicated according to the pro-

fessional medical judgment of a licensed physician in

Illinois, exercised in light of all factors affecting a

woman’s health.’’ State of Illinois Dept. of Publie Aid

—Medical Assistance Program Handbook for Physi-

cians, January, 1976, A-204. The Seventh Circuit

adopted this definition of “therapeutie’’ without ad-

dressing the question of whether it was broader than

“medically necessary.’’ Judge Kirkland treated the two

as synonymous. (See Order of May 15, 1978, at 10).

Whether the terms ‘‘medically necessary” and ‘‘thera-

peutic’ are coextensive is a question that is not merely

of academic significance. If, by attacking the constitu-

tionality of P.A. 80-1091, plaintiffs are advocating a

return to the status quo ante, then presumably a deci-

sion in their favor would result in the funding of all

‘‘therapeutic’’ abortions. But as we read the complaint,

plaintiffs seek funding for ‘‘medically necessary” abor-

tions, whether or not that is broad enough to include

(Footnote continued on next page)

eo

A27

Pursuant to the Seventh Circuit’s mandate, Judge Kirk-

land modified his permanent injunction to require Illinois

to fund under its medical assistance programs abortions

which fall within the scope of the Hyde Amendment excep-

tions. (Minute Order entered February 15, 1979). Judge

Kirkland set a briefing schedule, but then determined that

for medical reasons he would be unable to give the case the

‘‘expeditious consideration” ordered by the Seventh Cir-

cuit. The case was reassigned to us on April 18, 1979.

Now pending are the parties’ cross-motions for summary

judgment and plaintiffs’ motion for a temporary restrain-

ing order. The latter motion is a response by plaintiffs to

the announced intention of the Illinois Department of Pub-

lie Aid to deny reimbursements for all abortions except

those which it is required to fund by Judge Kirkland’s

modified injunction—that is, abortions still covered under

the Hyde Amendment—beginning May 1. For the reasons

which follow, we will grant partial summary judgment for

both plaintiffs and defendants.

Although plaintiffs raised a number of constitutional is-

sues in their complaint,’ their principal argument is that,

(Footnote continued from preceding page)

all “therapeutic’’ abortions. This reading harmonizes

with plaintiffs’ theory of the case—that by funding

“medically necessary” operations other than abortions,

Illinois is denying plaintiffs equal_ protection of the

laws. Accordingly, we will treat the Action as an attack

on Illinois’ failure to fund ‘‘imedically necessary’’ abor-

tions.

5. Plaintiffs also alleged that P.A. 80-1091 violated

the Establishment and Free Exercise Clauses of the

First Amendment to the Constitution made applicable

to the states by the Fourteenth Amendment, and the

(Footnote continued on next page)

A28

by imposing restrictions on the public funding of medically

necessary abortions which are not imposed on other medi-

cally necessary operations, P.A. 80-1091 violates their rights

to equal protection of the laws guaranteed by the Four-

teenth Amendment to the United States Constitntion.* The

framework for analyzing claims of alleged deprivations of

equal protection is now well-established :

We must decide, first, whether [the statute] operates

to the disadvantage of some suspect class or impinges

upon a fundamental right explicitly or implicitly pro-

tected by the Constitution, thereby requiring strict

judicial scrutiny. . . . If not, the [legislative] scheme

must still be examined to determine whether it ration-

ally furthers some legitimate, articulated state pur-

pose and therefore does not constitute an invidious

discrimination. . . .

San Antonio School District y. Rodriguez, 411 U.S. 1, 17

(1973).

(Footnote continued from preceding page)

Due Process Clause of the Fourteenth Amendment.

(Complaint, par. 22(d)). Plaintiffs’ due process claim

rests on their argument that the statute disrupts ‘‘the

carefully constructed balance of constitutional inter-

ests Wade and its progency established.” (Memoran-

dum in Support of Motion for Summary Judgment, at

22). We believe this contention is subsumed under their

equal protection challenge, and we will not treat it

separately in this opinion.

6. Plaintiffs have also challenged as unconstitu-

tional the reporting requirement for rape victims. None

of the plaintiffs, however, have asserted any personal

stake in the determination of this issue. Where, as

here, a statute contains separable provisions, a person

may challenge only those provisions which operate to

injure him, and may not challenge those provisions that

cause him no harm. See Bell v. Hongisto, 501 F. 24 346

(9th Cir. 1974), cert. denied 420 U.S. 962 (1975).

Pic

A29

Relying on Roe v. Wade, 410 U.S. 113 (1973) and subse-

quent abortion decisions, plaintiffs contend that strict judi-

cial scrutiny is appropriate here because a fundamental

right is implicated. In Roe, the Supreme Court struck down

a Texas statute that made criminal the performance or pro-

curement of an abortion unnecessary to save a mother’s

life. The Texas legislation was constitutionally infirm, the

Court held, because for every stage of a woman's preg-

nancy, it subordinated the woman’s right to privacy, a right

which ‘‘is broad enough to encompass a woman’s decision

whether or not to terminate her pregnancy,’’ to the state’s

interests in preserving maternal health and promoting fetal

life. 410 U.S. at 153. The Court emphasized, however, ‘hat

although the right of personal privacy ‘‘includes the abvur-

tion decision . . . this right is not unqualified and ore ”

idered against important state interests in regulation.

410 US. at 154, See also, Doe v. Bolton, 410 U.S. 179, 189

(1973). |

Thus, the right recognized in Roe is not an affirmative

right to an abortion, but is simply a right to make and ef-

fectuate the abortion decision, at least in the first trimester

of pregnancy, free from governmental regulation. During

the second trimester, a state may restrict the effectuation

of that decision only in a manner that reasonably promotes

the health of the mother. After the fetus has ee

bility, a state may constitutionally proscribe abortion “ex-

cept where it is necessary, in appropriate medical judg-

ment, for the preservation of the life or health of the moth-

er.’’ 410 U.S. at 164, 165. _

Plaintiffs argue here that by erecting a ‘‘substantial im-

pediment to poor women’s obtaining medically necessary

abortions,’’ P.A. 80-1091 restricts the effectuation of their

decision to ‘“‘bear or beget a child,’’ and thereby triggers

strict scrutiny. We believe this argument has been explicitly

A350

rejected by the United States Supreme Court in Maher v.

Roe, 432 U.S. 464, 470 (1977), and is therefore foreclosed

to plaintiffs here. In Maher, the Supreme Court held that

the Constitution does not require a state participating in

Social Security to pay for nontherapeutic abortions al-

though it pays the expenses of childbirth. Plaintiffs in

Maher argued that the Connecticut medical assistance

scheme infringed upon their fundamental rights as an-

nounced in Roe v. Wade. Rejecting this contention, the

Court observed:

[Roe] implies no limitation on the authority of a State

to make a value judgment favoring childbirth over

abortion and to implement that judgment by the allo-

eation of public funds.

* * * * *

The indigency that may make it diffieult—and in some

cases, impossible—for some women to have abortions

is neither created nor in any way affected by the

Connecticut regulation.

* * * * *

There is a basie difference between direct state inter-

ference with a protected activity and state encourage-

ment of an alternative activity consonant with legis-

lative policy.

432 U.S. at 474, 475.

As in Maher, plaintiffs here will encounter difficulty ef-

fectuating their decision to terminate a pregnancy not be-

cause of any state regulation, but because of their in-

digency. Maher compels the conclusion, therefore, that P.A.

80-1091 impinges upon no fundamental right and should not

be subjected to strict judicial scrutiny.’

7. Plaintiffs apparently do not argue that P.A. 80-

1091 creates a ‘‘suspect classification.’’ This argument

(Footnote continued on next page)

ak me Sa

A31

In further support of their argument that strict scrutiny

is appropriate here, plaintiffs analogize to the case of

Shapiro v. Thompson, 394 U.S. 618 (1969). There the Su-

preme Court declared unconstitutional various state statu-

tory provisions which denied welfare assistance to persons

who had not satisfied one year residency requirements, but

who were otherwise eligible for welfare benefits. The Court

reasoned that by treating indigents who had resided in the

state less than a vear differently from those who had satis-

fied the residency requirement, the state was penalizing

indigents’ rights to migrate, or travel interstate. Since the

right to travel interstate was deemed ‘‘fundamental,’’ the

Court subjected the statutes to strict scrutiny. Finding no

compeling justification for treating one year residents dif-

ferently, the Court concluded that the statutes were uncon-

stitutional. The Court noted that if the purpose of the pro-

visions was to deter migration, or prevent an influx of

indigents seeking higher welfare benefits, those purposes

were ‘‘constitutionally impermissible.’’ 394 U.S. at 631.

In this ease, plaintiffs contend that Tllinois is penalizing

indigent women who desire to exercise their right to effec-

tuate the abortion decision, We believe that again Maher

disposes of this argument. As the Maher Court observed:

[T]he claim here is that the State “penalizes” the

women’s decision to have an abortion by refusing

to pay for it. Shapiro and Maricopa County did not

hold that States would penalize the right to travel

interstate by refusing to pay the bus fares of the inci-

gent travelers. We find no support in the right-to-

(Footnote continued from preceding page)

would also be unavailing under Maher. There the Su-

preme Court stated that, ‘‘This Court has never held

that financial need alone identifies a suspect class for

purposes of Equal Protection.” 432 U.S. at 470.

A32

travel cases for the view that Connecticut must show a

compelling interest for its decision not to fund elec-

tive abortions.

432 U.S. n. 8 at 475. Since there is no fundamental right to

a publicly funded abortion, the analogy to Shapiro fails,

‘‘penalty analysis” does not apply, and strict scrutiny is

unnecessary.

Our determination that P.A. 80-1091 should not be sub-

jected to strict judicial scrutiny, however, does not resolve

the question of the statute’s constitutionality. Whenever

a statute treats different classes of individuals differently,

that legislative line-drawing is properly the subject of

judicial examination. San Antonio School District v. Rodri-

guez, 411 U.S. 1, 17 (1973). Here, since indigent women in

medical need of abortions are treated differently than in-

digent women in medical need of other surgical procedures,

we must subject the statute to the rational relationship

test. Under this test, the statute passes constitutional

muster only if we can conclude that the legislative classifi-

cation rationally furthers some legitimate, articulated state

purpose. Jd. As the Supreme Court observed in Maher, in

applying the identical test,

The Constitution imposes no obligation on the States to

pay the pregnancy-related medical expenses of indigent

women, or indeed to pay any of the medical expenses

of indigents. But when a State decides to alleviate

some of the hardships of poverty by providing medical

care, the manner in which it dispenses benefits is sub-

ject to constitutional limitations.

432 U.S. at 469-70.

The various defendants have suggested that the statute

is supported by the state’s legitimate interests in ‘‘fiscal

frugality” and in protecting fetal life through the encour-

agement of childbirth. While the allocation of limited public

i aR cachet Pon i ON ohn nn alt Sr tthe ee

A33

funds is a legitimate interest of the state, see generally,

Dandridge v. Williams, 397 U.S. 471, 487 (1970), we do not

believe that the Illinois funding policy is rationally re-

lated to this purpose. In fact, the record in this case sup-

ports the contrary conclusion that the costs of prenatal

eare, childbirth and postpartum eare are substantially high-

er than the cost of abortions.® All of the births in question

involve women who have encountered complications in their

pregnancies, which would presumably increase the cost of

needed medical care. Of course, if the newborn child then

receives public aid, the cost diffential is even greater. The

Illinois General Assembly was well aware of these potential

cost differences, as shown by the remarks of Senator Lem-

ke, Senate sponsor of P.A. 80-1091:

My people don’t want abortion being performed with

their money. If it costs them more to support these

children after they’re born, they will pay that money

gladly as long as it’s properly used.

Debate on H.B. 333, Illinois Senate, June 27, 1977. In

short, P.A. 80-1091 was not, and could not be, motivated

by economic concerns.

The other state interest offered in support of the state

classification is the protection of the fetus through the

encouragement of childbirth. The Supreme Court has rec-

ognized this as a legitimate state interest in some circum-

stances. See Maher v. Roe, 482 U.S. 464 (1977); Poelker v.

Doe, 432 U.S. 519, (1977); Roe v. Wade, 410 U.S. 118

(1973). In Maher, the Court held that Connecticut could

8. Plaintiffs have produced convincing statistical

evidence that the average State payment for an abor-

tion is approximately $145.00, compared to an average

cost to the State of $1,372.00 for funding a childbirth.

A34

encourage ‘‘normal childbirth” by subsidizing the costs in-

cident to childbirth while, at the same time, refusing to

expend funds for nontherapeutic (purely elective) abor-

tions. The Connecticut statute differed from the Illinois

statute challenged here because it provided the funding

of ‘‘medically necessary’’ abortions. We believe this dis-

tinction to be crucial to the determination of this case.

Under Maher, a state may legitimately prefer childbirth

to an elective abortion. We do not believe, however, that

a state has a legitimate interest in promoting the life of

a non-viable fetus in a women for whom an abortion

is medically necessary.’ This approach, which recognizes

9. Poelker v. Doe, 432 U.S. 519 (1977), does not

require a contrary result. There a woman challenged a

city policy that prohibited the performance of abor-

tions in ciiy-owned hospitals for reasons other than to

save the mother from grave physiological injury or

death. When plaintiff was examined by hospital physi-

cians, however, physicians could not find “‘any medical

reasons to justify an abortion,” such as “severe sick-

ness of the patient.’’ 515 F. 2d at 548. Accordingly, the

Court of Appeals treated the case as one where plain-

tiff demanded a ‘‘nontherapeutic” abortion. 515 F. 2d

at 545. When the case was appealed, the Supreme Court

adopted the lower court’s characterization of the issue

in upholding the city policy. 432 U.S. at 521. Because

the Court viewed plaintiff’s argument as an attack on

the city’s withholding of city-owned facilities for elec-

tive, or nontherapeutic abortions, Maher of course con-

trolled. In this case, the plaintiff class is defined in

terms of indigent women for whom abortions are med-

ically necessary. We agree with plaintiffs that the

Supreme Court could not have intended in its per

curiam Poelker decision to obliterate the distinction it

(Footnote continued on next page)

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A35

that the fetus is being carried within a living, human be-

ing, is consistent with Supreme Court decisions which sug-

gest that the interest in the fetus cannot be isolated from the

interest in the health of the mother. See generally, Roe v.

Wade, 410 U.S. at 159; Colautti v. Franklin, 99 S. Ct. 675,

688 (1979).%°

As a consequence of the state’s viewing the fetus apart

from the mother, the mother may be subjected to consider-

able risk of severe medical problems, which may even re-

sult in her death. Under the Hyde Amendment standard,

a doctor may not certify a woman as being elegible for

a publicly funded abortion except where ‘‘the life of the

mother would be endangered ... or... where severe and

long-lasting physical health damage to the mother would

result if the pregnancy were carried to term... .’’ Most

health problems associated with pregnancy would not be

covered by this language, (Affidavit of Dr. Oren Richard

Depp, p. 10, affidavit of Dr. David Zbaraz), and those

that would be covered would often not be apparent until

(Footnote continued from preceding page)

had carefully drawn in Maher between medically neces-

sary and nontherapeutic abortions. We note, however,

that at least two district courts have given Poelker v.

Doe the sweeping interpretation we reject here. Doe v.

Mundy, 441 F. Supp. 447, 451-52 (E.D. Wis. 1977);

Frieman v. Walsh, No. 77-4171-CV-C (W.D. Mo. filed

January 26, 1979).

10. Colautti v. Franklin, 99 8. Ct. 675 (1979) in-

volved a challenge to a Pennsylvania statute which

subjected a physician who performed an abortion to

potential criminal liability if he failed to utilize a statu-

torily prescribed technique when the fetus was ‘‘via-

ble,” or when there was sufficient reason to believe that

the fetus was viable. The Court stated:

(Footnote continued on next page)

A36

the later stages of pregnancy, when an abortion is more

dangerous to the mother (Affidavit of Dr. Depp, pp. 4-5). At

the earlier stages of pregnancy, and even at the later

stages, doctors are usually unable to determine the degree

of injury which may result from a particular medical con-

dition (Id. at 4). The effect of the new criteria, then, will

be to increase substantially maternal morbidity and mor-

tality among indigent pregnant women (Jd. at 12).™

(Footnote continued from preceding page)

Moreover, the second part of the standard directs

the physician to employ the abortion technique

best suited to fetal surival ‘‘so long as a different

technique would not be necessary in order to pre-

serve the life or health of the mother‘‘ (emphasis

supplied). In this context, the word ‘‘necessary’’

suggests that a particular technique must be in-

dispensable to the woman’s life or health—not

merely desirable—before it may be adopted.

Consequently, it is uncertain whether the statute

permits the physician to consider his duty to the

patient to be paramount to his duty to the fetus,

or whether it 1equires the physician to make a

“‘trade-off” between the woman’s health and addi-

tional percentage points of fetal survival. Serious

ethical and constitutional difficulties, that we do

not address, lurk behind this ambiguity.

meee Moreover, the new Illinois criteria completely

ignore the very serious threats to an indigent preg-

nant woman’s psychological or psychiatric health that

may make an abortion medically necessary. One doctor

has estimated that approximately 15 per cent of a

representative group of women desiring abortions have

a psychiatric need for an abortion. He also coneluded

that indigent women are more likely than are non-

indigent women to suffer adverse mental health conse-

quences from unwanted pregnancy. (Affidavit of Dr.

Peter Barglow, at 4, 6).

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A37

We cannot hold that a state has a legitimate interest in

preserving the life of a non-viable fetus at the cost of in-

creased maternal morbidity and mortality among indigent

pregnant women. In Memorial Hospital v. Maricopa Coun-

ty, 415 U.S. 250 (1974), the Supreme Court was faced with

a challenge to an Arizona statute which required one

year’s residence in a county as a condition to receiving

non-emergency hospitalization or medical care at the coun-

ty’s expense. In striking down the state statute as infring-

ing on the fundamental right to interstate travel, the Su-

preme Court stated:

Evaro was an indigent person who required continued

medical care for the preservation of his health and well

being ..., even if he did not require immediate emer-

gency care. The State could not deny Evaro just be-

cause, although gasping for breath, he was not in

immediate danger of stopping breathing altogether.

To allow a serious illness to go untreated until it re-

quires emergency hospitalization is to subject the suf-

ferer to the danger of a substantial and irrevocable

deterioration in his health. Cancer, heart disease, or

respiratory illness, if untreated for a year, may be-

come all but irreversible paths to pain, disability, and

even loss of life. The denial of medical care is all the

more cruel in this context, falling as it does on indi-

gents who are often without the means to obtain

alternative treatment.

415 U.S. at 260-61 (emphasis added). Like the Arizona

statute in Maricopa County, the Illinois statute as modified

will deny needed medical aid to indigent mothers until the

point when a doctor is able to certify that the mother’s

life is endangered or when severe and long-lasting physi-

cal health damage” appears certain to occur. Action that

12. The affidavits submitted by plaintiffs give many

examples of medical conditions which would not be

(Footnote continued on next page)

A38

the Supreme Court characterized as ‘‘cruel’’ in Maricopa

County can hardly be considered as a permissible side ef-

fect of a ‘‘legitimate’’ state interest in the present case.

As the Supreme Court recognized in Roe, however, the

state’s interest in promoting fetal life grows with the

length of the pregnancy. At any point in the pregnancy

term, the strength of the state’s interest can only be de-

termined by balancing ‘‘the relative weight of the respec-

tive interests involved.’’ Roe v. Wade, 410 U.S. at 165.

(Footnote continued from preceding page)

covered by the new Illinois standards, but which could

pose a great threat to the safety of the mother. For

example, the affidavit of Dr. David Zbaraz states, at

pp. 5-6:

The lack of certainty about predictions extends to

even the most serious of potentially life-threa‘en-

ing conditions. For example, women with sickle

cell disease have a 25 per cent probability of going

into sickle cell crisis an dying as a result of preg-

nancy. (The normal mortality rate is 20 per 100,-

000). Because of this extra-ordinarily high mor-

tality rate, abortions for women with sickle cell

disease are almost universally acknowledged to be

‘*medically necessary.’’ J would thus actively ecoun-

sel such women to have abortions, unless they ex-

pressed a very strong desire to have the child. Yet

it simply cannot be known, however careful her

care and physician’s monitoring, whether a partic-

ular patient will go into crisis, or whether the

state of her disease will remain unaffected by

pregnancy. It would not be proper medical care

to wait for such an actual threat before termi-

nating the pregnancy, if the patient did not want

to incur the risk. Yet the Lllinois standard, by

requiring certainty about the outcome of a preg-

nancy, does not comprehend this inherent uncer-

tainty in medical judgment prior to the onset of

actual health crises.

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A39

After the point of viability, for instance, that interest is

regarded as ‘‘compelling,’’ and justifies the proscription

of abortion, except when it is necessary to preserve the life

or health of the mother. 410 U.S. at 164.

Similarly, the state’s interest in promoting the life of a

fetus carried in a woman for whom an abortion is medi-

eally necessary is not constant. For the reasons just dis-

cussed, a pregnant woman’s interest in her health so out-

weighs 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. At the point of via-

bility, however, ‘‘the relative weights of the respective

interests involved’’ shift, thereby legitimizing the state’s

interest. After that point, therefore, we believe a state

may withhold funding for medically necessary abortions

that are not life-preserving, even though it funds all other

medically necessary operations. We thus conclude that,

as it applies to the abortion of a viable fetus, P.A. 80-

1091 (as modifed by court order) is constitutional.

We recognize that, as with any standard that relies on the

judgment of the individual administering it, “medical neces-

sity’? may be subject to deliberate misinterpretation and

abuse. Some would argue that unscrupulous physicians,

with the active encouragement of their indigent patients,

will transform our decison into a de facto order that the

state fund purely elective abortions. Such a result would,

of course, be squarely contrary to the Supreme Court’s

Maher decison. Nonetheless, we believe the inherent elas-

ticity of the standard we adopt today will pose no greater

problem to the state’s adminstration of its medical assis-

tance programs than it did under the funding scheme that

preceded P.A. 80-1091. Furthermore, we are encouraged

by affidavits submitted by respected members of the medi-

eal professions that suggest that the percentage of abor-

A40

tions any physican would deem ‘‘medically necessary’’

may be as low as one fifth of the representative cases in

which a pregnant woman desires an abortion. ((Aiiidavit

of Dr. Oren Depp, at 7). Finally, we note that providers

of services under Lllinois medical assistance programs are

subject to civil and criminal penalties for filing false Medi-

caid reimbursement reports. 42 U.S.C. Section 1396h; IIL

Rev. Stat. ch. 23, Sections 12-15, 12-15.1.

CONCLUSION

We hold that the Hyde Amendment and P.A. 80-1091

are unconstitutional as applied to medically necessary abor-

tions prior to the point of fetal viability. All parties are

to appear on Monday, April 30, 1979, at 9:30 a.m. to

discuss the problems of relief and notice. Plaintiffs are

to prepare an appropriate judgment order and order grant-

ing injunctive relief for submission to the court on Monday,

April 30, 1979.

DATED: April 29, 1978.

ENTER:

JOHN F. GRADY,

United States District Judge.

A4l

UNITED STATES DISTRICT COURT, NORTHERN

DISTRICT OF ILLINOIS, EASTERN DIVISION

Name of Presiding Judge, Honorable JOHN F. GRADY.

Cause No. 77 C 4522.

Date—April 30, 1979.

Title of Cause—ZBARAZ v. QUERN, and WILLIAMS

and DIAMOND, and the UNITED STATES.

Brief Statement of Motion—Motion for Stay.

Motion by Intervening Defendants for stay pending fi-

nal outcome of this case pending appeal is denied.

John F. Grady.

A42

UNITED STATES DISTRICT COURT, NORTHERN

DISTRICT OF ILLINOIS, EASTERN DIVISION

Name of Presiding Judge, Honorable JOHN F. GRADY.

Cause No. 77 C 4522.

Date—April 30, 1979.

Title of Cause—ZBARAZ et al v. QUERN, ete. et al.

Hearing held on proposed injunction order. Motion of all

defendants for stay pending appeal, denied. Motion by

defendant Quern, to require federal reimbursement ete.,

is entered and taken under advisement.

Enter Final Judgment and Order—( Draft).

John F’. Grady.

SS Pe ee

A43

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID ZBARAZ, M.D., et al., )

Plaintiffs,

vs. j No. 77 C 4522

ARTHUR F. QUERN, et al.,

Defendants. |

FINAL JUDGMENT AND ORDER

On April 27, 1979, this Court issued a Memorandum

Opinion which, inter alia, held Illinois’ intended policy of

denying reimbursement for all abortions under its medical

assistance programs except those which it is required to

fund under the District Court’s modified injunction of

February 15, 1979, unconstitutional as applied to medically

necessary abortions performed prior to fetal viability. The

District Court’s previous May 15, 1978 Judgment and its

June 13, 1978 Judgment, as modified by this February 15,

1975 Order, remain in force. But this Court directed plain-

tiffs to prepare an appropriate judgment order and order

granting injunctive relief incident to the April 27, 1979

Memorandum Opinion for submission on April 30, 1979.

Plaintiffs have done so. This Court has considered plain-

tiffs’ proposed Decree, and now hereby ORDERS,

ADJUDGES AND DECREES THAT:

1. This Court has jurisdiction over this case under 28

U.S.C. §§ 1343(3) and (4).

2. As used in this Judgment and Order, the following

terms have the meanings indicated—

A44

(a) ‘‘Recognized and legal medical providers” means

all persons or institutions in Illinois who are

certified to obtain reimbursement for medical

services under the Illinois medical assistance

programs;

(b) ‘Illinois medical assistance programs” means

the Medicaid, state-funded General Assistance

and Aid to the Medically Indigent programs,

established pursuant to Ill. Rev. Stat., ch. 23,

Arts. V-VII;

(c) “Indigent pregnant women’’ means pregnant

women eligible for assistance under the Illinois

medical assistance programs;

(d) ‘Medically necessary” as modifying ‘‘abortion”

means an abortion which is necessary for the

preservation of the life or the physical or men-

tal health of a woman seeking such treatment, in

the professional judgment of a licensed phy-

sician in Illinois, exercised in light of all factors

relevant to her health;

(e) ‘‘Illinois’ restrictive abortion funding policy’’

means the policy Illinois adopted pursuant to

P.A. 80-1091, Ill. Rev. Stat. Supp. (1977), ch.

23, §§ 5-5, 6-1, 7-1, as modified by the District

Court Order of February 15, 1979, and as de-

eribed in the notices attached hereto as Ex-

hibits A and B;

(f) ‘‘Fetal viability” means the point during preg-

nancy at which, in the professional judgment

of a licensed physician in Illinois, a fetus is

potentially able to live outside the, mother’s

womb, albeit with artificial aid, such that there

is a potentiality for meaning life, not merely

momentary survival.

3. There are two plaintiff classes herein, certified

pursuant to F.R.C.P. 23(a) and (b)(2). They consist of:

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A45

(a) all pregnant women eligible for the Illinois

medical assistance programs for whom an abor-

tion is medically necessary but not necessary

for the preservation of their lives and who wish

such abortion performed, and

(b) all Illinois physicians who are certified to ob-

tain reimbursement for necessary medical serv-

ices rendered to, and who perform medically

necessary abortions for, persons eligible for

the Illinois medical assistance programs.

4. Partial summary judgment is granted to both plain-

tiffs and defendants, as follows—

(a) Partial summary judgment is granted to plain-

tiffs that:

(i) Jllinois’ restrictive abortion funding policy

and P.A. 80-1091, Ill. Rev. Stat. Supp. (1977), ch.

23, §§ 5-5, 6-1, 7-1, as applied by Illinois to deny

funding, under the Illinois medical assistance pro-

grams, for medically necessary abortions per-

formed prior to fetal viability, violate the equal

protection clause of the Fourteenth Amendment

to the United States Constitution;

(ii) The Hyde Amendment [Pub. L. 95-480, § 240,

92 Stat. 1586 (1978)], as construed by the 7th

Circuit in Zbaraz v. Quern, F. 2d (Feb.

13, 1979) to permit Illinois to deny funding, under

its Medical Assistance (‘‘Medicaid’’) Program

[Ill. Rev. Stat. ch. 23, Art. V; 42 U.S.C. §§ 1396ff.]

for any medically necessary abortion performed

prior to fetal viability, violates the Fifth Amend-

ment to the United States Constitution.

(b) Partial summary judgment is granted to de-

fendants that:

(i) Illinois’ restrictive abortion funding policy

and P.A. 80-1091, Ill. Rev. Stat. Supp. (1977), ch.

23, §§ 5-5, 6-1, 7-1, as applied by Illinois to deny

funding under the Illinois medical assistance pro-

SE

A46

grams, for medically necessary abortions per-

formed after fetal viability, do not violate the

equal protection clause of the Fourteenth Amend-

ment to the United States Constitution.

(ii) The Hyde Amendment [Pub. L. 95-480, § 210,

92 Stat. 1586 (1978)], as construed by the 7th Cir-

cuit in Zbaraz v. Quern, F. 2d (Feb. 13,

1979) to permit Illinois to deny funding, under its

Medical Assistance (“Medicaid”) Program [ill.

Rev. Stat. ch. 23, Art. V; 42 U.S.C. §§ 1396ff.]

for any medically necessary abortion performed

after fetal viability, does not violate the Fifth

Amendment to the United States Constitution.

5. Illinois’ restrictive abortion funding policy and P.A.

80-1091, Ill. Rev. Stat. Supp. (1977), ch. 23, §$ 5-5, 6-1, 7-1,

as applied to deny funding, under the Illinois Medical as-

sistance programs, for medically necessary abortions per-

formed prior to fetal viability, are, pursuant to 28 U.S.C.

§ 2201, declared to violate the equal protection clause of the

Fourteenth Amendment to the United States Constitution.

The Hyde Amendment [Pub. L. 95-480, § 210, 92 Stat.

1586 (1978)], as construed by the 7th Cireuit in Zbaraz

v. Quern, F. 2d (Feb. 13, 1979) to permit Illinois

to deny funding, under its Medical Assistance (‘‘ Medi-

eaid’’) Program [Ill. Rev. Stat. ch. 23, Art. V; 42 U.S.C.

§§ 1396ff.] for any medically necessary abortion performed

prior to fetal viability, is, pursuant to 28 U.S.C. § 2201,

declared to violate the Fifth Amendment to the United

States Constitution.

6. Defendant Arthur F. Quern, his agents, employees

and all persons in active concert with him are permanently

enjoined from—

(a) enforcing Illinois’ restrictive funding policy and

P.A. 80-1091, Ill. Rev. Stat. Supp. (1977), ch. 23,

§§ 5-5, 6-1, 7-1, to deny payments under the IIli-

Se eee nee ee ee ela ce tle

A47

nois medical assistance programs to any recog-

nized and legal providers for the rendition of

medical services to indigent pregnant women

for medically necessary abortions performed pri-

or to fetal viability, or to deny such payments on

behalf of any such indigent pregnant women for

such abortions; and

(b) directing notice to any recognized and legal medi-

cal providers, or to persons receiving assistance

under the Illinois medical assistance programs,

that any medically necessary abortions per-

formed prior to fetal viability, are not, or will

not be, a covered service under the Illinois medi-

cal assistance programs.

7. Within 21 days from the entry of this Decree, or

within such additional time as this Court may allow, de-

fendant Quern is ORDERED TO—

(a) direct, by first-class mail, to all recognized and

legal medical providers notices, certification

forms, and revisions to the Handbook for Phy-

sicians, Which explain, completely, the terms of

{| 6(a) herein, and of the means by which such

providers can secure reimbursement for medi-

cally necessary abortion services. (Defendant is

further ORDERED to furnish such notices,

forms and revisions to plaintiffs’ attorneys at

least seven working days prior to their official

promulgation.) ;

(b) direct, by first-class mail, the notice attached

hereto as Exhibit C (printed in English and Span-

ish) to all Illinois medical assistance program re-

cipients who may be affected by this Decree.

8. (a) The question of defendants’ liability for at-

torneys’ fees, and the amount of such fees

to plaintiffs, is reserved until further order

of this Court. Plaintiffs need not submit

A48

any claim for attorneys’ fees until such

time as this Court considers this question.

(b) Costs are awarded to plaintiffs.

ENTER:

JOHN F. GRADY,

United States District Judge.

DATED: April 30, 1979

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A49

STATE OF ILLINOIS

DEPARTMENT OF PUBLIC AID

NOTICE

TO: Physicians, Hospitals and Ambulatory Surgical

Centers.

FROM: Illinois Department of Public Aid

RE: REIMBURSEMENT FOR ABORTIONS

Effective May 1, 1979, the Department of Public Aid,

under Illinois law, as limited by the federal court, cannot

pay for abortions except for three (3) specific reasons

which are coded and described below. Payment can only be

made after receipt of the new document ‘‘ Application For

Payment For Abortion”, Form DPA 2217, which must be

submitted with the billing code.

When billing on Form DPA 132, Physician’s Statement

of Services Rendered, for induced abortions that are re-

imburseable by the Department, please use the appropri-

ate procedure code. The codes are as follows:

Code 59730 Mother’s Life Endangered

The professional judgment of the phy-

sician that the life of the mother would

be endangered if the fetus were carried

to term.

Code 59740 Severe and Long Lasting Health Damage

professional judgment of the phy-

ician that severe and long lasting physi-

a health damage to the mother would

result if the pregnancy were carried to

term.

A50

Code 59750 Rape or Incest

Illinois state law as limited by the fed-

eral court prohibits Medicaid payment

for abortions for rape or incest unless

the abortion would meet certain fed-

eral financial participation requirements,

including the requirement that Illinois

Department of Public Aid must receive

signed documentation from a law en-

forcement agency or public health serv-

ice stating:

a) The person upon whom the medical

procedure was performed was re-

ported to have been the victim of an

incident of rape or incest;

b) The date on which the incident oc-

curred;

c) The date on which the report was

made which must have been within

60 days of the date on which the inci-

dent occurred;

d) The name and address of the victim

and the name and address of the per-

son making the report (if different

from the victim); and

e) That the report include the signature

of the person who reported the inci-

dent.

The Department of Health, Education

and Welfare has stated that a provider

who performs the procedure withing hav-

ing the necessary documentation in hand

does so at the risk of not receiving pay-

ment if the documentation is not forth-

coming to the Illinois Department of Pub-

lic Aid. The Illinois Department of

Public Aid will pay for abortions re-

quired because of rape or incest only

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A5l

when it has received the federally re-

quired documentation, or if the abortion

was also necessary for the other federal-

ly reimburseable reasons as previously

defined.

Hospitals, when billing the Department of Public Aid

for abortions as defined in this release, are to attach a

copy of the completed Application for Payment For Abor-

tion, Form DPA 2217, to the hospital billing statement.

Attached is a copy of the Application For Payment For

Abortion, Form DPA 2217. Form 1862 and any revised

editions of Form 1862 will be obsolete and should not be

used for services rendered after May 1, 1979.

Supplies of the Application For Payment For Abortion

are maintained centrally and may be obtained by writing:

Provider Services Sec! on

Post Office Box 4034

Springfield, Illinois 62708

If you wish, you may call (217) 782-1426.-

EXHIBIT ‘‘A’”’

A52

STATE OF ILLINOIS

DEPARTMENT OF PUBLIC AID

TO: RECIPIENTS OF AFDC, AABD, MANG, GA, AMT

OR FOSTER CARE

RE: ABORTION SERVICES DATE: March 22, 1979

The Illinois Department of Public Aid will no longer

pay for abortions performed on or after May 1, 1979, under

any of the medical programs it administers, except where:

(a) a doctor has determined that the life of the

mother would be endangered if the fetus were carried

to term; or

(b) two doctors have determined that severe and long

lasting physical health damage to the mother would

result if the pregnancy were carried to term; or

(c) the abortion (or other medical procedure) is

necessary for a victim of rape or incest, which such

rape or incest has been reported promptly to a law

enforcement agency or public health service.

NOTE: This report must be made within 60 days

of the incident and must show the name and ad-

dress of the victim and the date of the incident.

It must show the name, address and signature of

the perscn making the report and the date of the

report.

Doctors and hospitals will not be able to accept medical

identification cards for abortions except as specified above.

This action is being taken because state law (Ill. Rev.

Stat. 5-5, 6-1 and 7-1), as limited by federal court rulings,

prohibits IDPA from paying for any abortions other than

those specified above.

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Ad3

YOU HAVE THE RIGHT TO APPEAL

THIS DECISION

At any time, within 60 days following the above ‘‘ DATE”

you have the right to appeal this decision and be given

a fair hearing. Such an appeal must be in writing and filed

with the Department. You may represent yourself at this

hearing or vou may be represented by any one else, such

as a lawyer, relative or friend. Your local office will provide

you with an appeal form and will help you fill it out if you

wish.

EXHIBIT “B”

A54

STATE OF ILLINOIS

DEPARTMENT OF PUBLIC AID

TO: RECIPIENTS OF AFDC, AABD, MANG, GA or

AMI, or FOSTER CARE

RE: ABORTION SERVICES DATE: May ——, 1979

ILLINOIS DEPARTMENT OF PUBLIC AID MUST

PAY FOR MEDICALLY NECESSARY ABORTIONS

A Federal Court has ruled that the Illinois Department

of Public Aid must pay for all abortions for pregnant

women eligible for one of its medical assistance programs

(Medicaid, General Assistance Medical, Aid to the Medi-

cally Indigent), if the abortion is ‘‘medically necessary”

and performed prior to ‘‘fetal viability.’’ An abortion

is deemed to be “medically necessary” for a pregnant wom-

an if the woman’s doctor (in his/her professional judg-

ment, exercised in light of all factors relevant to her well-

being) deems is to be necessary for the preservation of

her life or health. ‘‘Fetal viability” is usually placed at

about seven months (28 weeks), but may occur earlier, even

at 24 weeks.

If an eligible pregnant woman has an abortion after fetal

viability, the Department of Public Aid will pay for such

an abortion only where:

(a) a doctor has determined that the life of the

mother would be endangered if the fetus were

carried to term; or

(b) two doctors have determined that severe and

long-lasting physical health damage to the mother

would result if the pregnancy were carried to

term.

A5d5

In addition, the Department of Publie Aid will pay for

an abortion (or other medical procedure) when it is neces-

sary for a victim of rape or incest, when such rape or in-

cest has been reported promptly to a law enforcement

agency or public health service. (A pregnant woman under

18 is considered to have been the victim of rape, even if she

was not forced to have sexual relations.) Note that under

Illinois law, the required report must be made within 60

days of the incident and must show the name and address

of the victim and the date of the incident. It must show the

name, address and signature of the person making the re-

port and the date of the report.

Because of the federal court ruling noted above, and

previous federal court rulings, doctors, hospitals and clinics

are now able to get paid for medical services for the types

of abortions described above. Therefore, medical identifica-

tion (green) cards can be presented for such abortion

services, as for other types of medical services.

You may previously have been sent one or more other

notices which said that the Department of Public Aid would

not pay for most of the abortions described above. Please

disregard such notices. They are no longer in effect.

Arthur F. Quern, Director

Illinois Department of Publie Aid

EXHIBIT ‘*C”

A56

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID ZBARAZ, M.D., ete., et al., >

Plaintiff s,

vs. ‘ No. 77 C 4522

ARTHUR F. QUERN, ete., et al.,

Defendants. )

AMENDED

NOTICE OF APPEAL

NOTICE IS HEREBY GIVEN that Defendant, AR-

THUR F. QUERN, Director, Illinois Department of Public

Aid, by and through his attorney, WILLIAM J. SCOTT,

Attorney General, State of Illinois, hereby appeals to the

Supreme Court of the United States pursuant to 28 U.S.C.

§ 1252 from the Memorandum Opinion dated April 29, 1979,

and the Final Judgment and Order dated April 30, 1979,

and docketed May 2, 1979, granting partial summary judg-

ment for the plaintiffs, in the United States District Court

for the Northern District of Illinois, Eastern Division, by

the Honorable John F. Grady.

Defendant prays that the Final Judgment and Permanent

Injunction be reversed.

The parties to this Order and the names and addresses

of their respective attorneys are:

1. Plaintiffs-appellees who are represented by Robert

W. Bennett, Esquire, 357 East Chicago Avenue, Chi-

cago, Illinois 60611.

2. Plaintiffs-appellees, Zbaraz and Mctew, who are

represented by David Goldberger, Esquire, and Lois

a

AST

Lipton, Esquire, Roger Baldwin Foundation of ACLU,

Ine., 5 South Wabash Avenue, Chicago, Illinois 60603.

3. Plaintiffs-appellees, Doe and Chicago Welfare

Rights Organization, who are represented by Aviva

Futorian, Esquire, Robert E. Lehrer, Esquire, Wendy

Meltzer, Esquire, and James D. Weill, Esquire, Legal

Assistance Foundation of Chicago, 343 South Dear-

born Street, Chicago, Illinois 60604.

4. Defendant-appellant, Arthur F. Quern, Director

of the Illinois Department of Public Aid, who is repre-

sented by William J. Scott, Attorney General, State

of Illinois, William A. Wenzel, Special Assistant At-

torney General (Of Counsel), 130 North Franklin,

Suite 300, Chicago, Illinois 60606.

5. Defendants-appellants intervenors, Jasper F. Wil-

liams, M.D., and Eugene F. Diamond, M.D., who are

represented by Patrick A. Trueman and John D. Gor-

by, Americans United for Life Legal Defense Fund,

230 North Michigan, Suite 515, Chicago, Illinois 60601.

6. Defendant-appellant intervenor, United States of

America, which is represented by Jonathon Ginsburg,

United States Department of Justice, Civil Division,

10th and Pennsylvania, N.W., Washington, D.C. 20530

and James Hynes, Assistant United States Attorney,

219 South Dearborn Street, Chicago, Dlinois 60604.

Respectfully submitted,

WILLIAM J. SCOTT,

Attorney General,

State of Illinois.

WILLIAM A. WENZEL,

Special Assistant Attorney

General (Of Counsel),

130 North Franklin, Suite 300,

Chicago, Dliois 60606 (793-2380).

A58

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID ZBARAZ, M.D., ete., et al., >

Plaintiffs,

vs. ' No. 77 C 4522

ARTHUR F. QUERN, ete., et al.,

Defendants. |

NOTICE OF FILING

TO: See attached list.

PLEASE TAKE NOTICE that on the 8th day of May,

1979, the attached AMENDED NOTICE OF APPEAL was

filed with the Clerk of the United States District Court for

the Northern District of Illinois, Eastern Division, at the

United States Courthouse, 219 South Dearborn Street,

Chicago, Illinois.

WILLIAM J. SCOTT,

Attorney General,

State of Tlinois.

WILLIAM A. WENZEL,

Special Assistant Attorney

General (Of Counsel),

130 North Franklin, Suite 300,

Chicago, Iliois 60606 (793-2380).

now ee

wale! ties

ASd9

CERTIFICATE OF SERVICE

The undersigned being first duly sworn upon oath de-

poses and says that a copy of the foregoing was served

upon the above named at the above address by depositing

same in the United States mail chute at 160 North LaSalle

Chicago, Illinois on May 8, 1979. )

eid tS Re Sey a aka carne hsm stad BRYNES.

SUBSCRIBED and SWORN to

before me this 8th day

of May, 1979.

NOTARY PUBLIC