Petition — Zbaraz v. Quern
Supreme Court brief1979
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ICHAEL RODAK, JR.. CLERK
No. 79-64 ,
DAVID ZBARAZ, M.D., MARTIN MOTEW, M.D., Individually and on be.
half of all others similarly situated; CHICAGO WELFARE RIGHTS
ORGANIZATION, an IIlinols not-for-profit corporation; and JANE DOE,
Individually and on behalf of all others similarly situated,
In Tue
Supreme Court of the Hn
Ocroser Term, 1979
Petitioners,
Ve
ARTHUR F. QUERN, Director, Hlinols Department of Public Ald,
and
JASPER F. WILLIAMS, M.D., and EUGENE F. DIAMOND, M.D.,
Respondents.
CONDITIONAL PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT
ROBERT W. BENNETT
357 East Chicago Avenue
Chicago, Illinois 60611
AVIVA FUTORIAN
ROBERT E. LEHRER
WENDY MELTZER
JAMES D. WEILL
Legal Assistance Foundation of Chicago
843 South Dearborn Street
Chicago, Illinois 60604
LOIS J. LIPTON
DAVID GOLDBERGER
Roger Baldwin Foundation of ACLU, Inc.
§ South Wabash Avenue
Chicago, Illinois 60603
Counsel for Petitioners
Midwest Law Printing Co., Chicago 60601, Financial 6-3988
TABLE OF CONTENTS
PAGE
OPINIONS BELOW ........2.............. di ipobipleneanial 2
I i 3
QUESTIONS PRESENTED 0c ecececeeceeeceeeeeee ees 3
STATUTES AND REGULATIONS INVOLVED ........ 4
Wears OF tem CASE 9)
REASONS FOR GRANTING THE WRIT... 11
I.
Review of the Court of Appeals’ Decision Will
Permit Disposition of this Case Without this
Court’s Resolution of Constitutional Questions
Presented by the Appeals From the stele
District Court Decision = neeag * |
Il.
The Court of Appeals Decision Raises an Impor-
tant Question of Federal Law Affecting the Avail-
ability of Public Funding for Medically Necessary
Abortions in Many States Which Has Not Been,
but Should Be, Resolved by This Court —.....0........ 14
II.
The Decision of the Court of Appeals Is Errone-
ous:
A. Its Decision that the Hyde Amendment Sub-
stantively Amended the Social Security Act
so as to Permit Illinois to Deny Funding for
Medically Necessary Abortions Conflicts with
this Court’s Decision in TVA v. Hill and
Earlier Decisions 19
ii
B. The Court of Appeals’ Direction to the Dis-
trict Court to Consider on Remand the Con-
stitutionality of the Hyde Amendment Injected
into the Litigation a Question as to Which
There Was No Case or Controversy ................. 25
IIIS isch lal cass secdacesipcson on sbabchnpeieesiopsniopemeeenamnon 27
APPENDIX:
A—Opinion of Court of Appeals, February 13,1979 la
B—Judgment of Court of Appeals, February 13,
ge CNR Ca ET PIU oA OOO 14a
C—Order of Court of Appeals, March 13, 1979 ........ 16a
D—Memorandum Opinion and Order of District
Court, May 15, 1978 19a
E—Memorandum Opinion of District Court, April
29, 1979 33a
F—Final Judgment and Order of District Court,
FA Fee IE ai cid daciciitseennsicionavines 52a
EDT TROIS HO OCOD D I 58a
H—Federal Regulations .......2...........--.-scescssceeeseeeeeeeees 69a
Ee EEN Tla
CITATIONS
Cases
Ashwander v. TVA, 297 U.S. 288 (1936) 13
aE i i Me i ED iinet ccs 7, 25
Bellotti v. Baird, 47 U.S.L.W. 4969 (July 2, 1979) ........ 18
Califano v. Yamanski, 47 U.S.L.W. 4765 (June 20,1979) 11
City of Los Angeles v. Adams, 556 F.2d 40 = C. Cir.
1977) 23
Crooks v. Harrleson, 282 U.S. 55 (1930) 19
D R v. Mitchell, 456 F.Supp. 609
(D. Utah 1978), appeal pending, No. 78-1675 (10th
Cir. 1979) 18
Doe v. Bolton, 410 U.S. 179 (1973) 7, 18
Doe v. Busbee, No. C79-C786A (N.D. Ga. June 4, 1979)
sninceedleisdi nace 18, 24-25
Doe v. Mathews, 422 F.Supp. 141 (D. D.C. 1976) 0... 25
Doe v. Mathews, 420 F.Supp. 865 (D. N.J. 1976) _.......... 25
E.I. DuPont de Nemours Co. v. Collins, 436 U.S. 46
gp Sam SBR eases RID tee Hes LON <i LAL WERT ETO Be ee 23
Eisenberg v. Corning, 179 F.2d 275 (D.C. Cir. 1949) .... 23
Emma G. v. Edwards, No. 77-1342 (E.D. La. November
SU AOD, seckecsticdadeses 18
Emma G. v. Edwards, 434 F.Supp. 1048 (E.D. La. 1977) 18
Ex parte Collett, 337 U.S. 55 (1949) ow 20
Farmers and Mechanics National Bank v. Wilkinson,
| RPE NII aa 1 SP 12, 14
Freiman v. Walsh, No. 77-4171-CV-C (W.D. Mo. Janu-
gt Eg, GREE Arte onernee 18
Friends of the Earth v. Armstrong, 485 F.2d 1 (10th
ORE EMR eo ht Ne ne 23
Lewis v. Shulimson, 405 F.Supp. 807 (E.D. Mo. 1975),
aff’d, 534 F.2d 794 (8th Cir. 1976) 25
McRae v. Mathews, 421 F.Supp. 533 (E.D. N.Y. 1976) .. 23
Memphis Light, Gas and Water Division v. Craft, 436
U.S. 1 (1978) 26
Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970) oe 13
Morton v. Mancari, 417 U.S. 535 | ee 19, 21
NLRB v. International Van Lines, 409 U.S. 48 (1972) .... 13
Posadas v. National City Bank, 296 U.S. 497 (1936) .... 19
Powell v. McCormack, 395 U.S. 486 (1969) —....00000202.... 26
Preterm v. Dukakis, 591 F.2d 121 (1st Cir. 1979) ........
Pat ld ERAAT VA See aes Rc RE NR 18, 21, 22-23, 24
Richardson v. Ramirez, 418 U.S. 24 (1974) 26
Right to Choose v. Byrne, No. C-3817-17 (Super. Ct.
N.J. July 2, 1979) ..... 18
Roe v. Casey, No. 78-2214 (E.D. Pa. December 21, 1978)
MARES Sed Dee SGP RL EE I SoA CET ET CTC RCRD OR 18, 25
Rush v. Parham, 440 F.Supp. 383 (N.D. Ga. 1977) ...... 18
Smith v. Ginsberg, No. 75-0380 CH (S.D. W.Va. May
SS petaesion 18, 25
Sosna v. Iowa, 419 U. S. 393 |_| ye SSA ee 26
Taylor v. Lavine, 419 U.S. 1048 (1974) Ter ae
iv
TVA v. Hill, 437 U.S. 153 (1978) 19, 20, 21, 22
Udall v. Tallman, 380 U.S. 1 (1961) 23
Union Trust Co. v. Westhus, 228 U.S. 519 (1913) ...... 12, 14
United States v. American Friends Service Committee,
419 U.S. 7 (1974) 13
United States v. American Trucking Associations, Inc.;
310 U.S. 534 (1940) ..... 19, 21
Van Lare v. Hurley, 421 U.S. 338 (1975) o.oo 12, 14
Van Lare v. Hurley, 419 U.S. 1045 (1974) 14
White v. Beal, 413 F.Supp. 1141 (E.D. Pa. 1976), aff d,
099 F.2d 1146 (3d Cir. 1977) 18
Williams v. Zbaraz, 47 U.S.L.W. 3772 (May 24, 1979)
(Stevens, J. in chambers) 16, 17
Zbaraz v. Quern, No. 77 C 4522 (N.D. ll. May 15, 1978) 8
Zbaraz v. Quern, 596 F.2d 196 (7th Cir. 1979) .. 2 and passim
Zharaz v. Quern, 572 F.2d 582 (7th Cir. 1978) 8
Zbaraz v. Quern, No. 77-2290 (7th Cir. January 11,
1978) 8
Zbaraz v. Quern, [1979] Medicare and Medicaid Guide
(CCH) {| 29,644 (N.D. Ill. April 29/30, 1979) ............
‘ou 9, 10, 11, 16, 27
Zbaraz v. Quern, No. 77 C 4522 (N.D. Ill. December 21,
1977) : 8
Constitution, Statutes and Regulations
U.S. Const. art. ITI, § 2 26
U.S. Const. amend. V 10, 11
U.S. Const. amend. XTV, § 1 7, 9, 11, 25
28 U.S.C. § 1252 (1976) 2
28 U.S.C. § 1254(1) (1976) 3
28 U.S.C. § 1331 (1976) 7
28 U.S.C. § 1343 (1976) 7
28 U.S.C. § 2101 (1976) 7 12
28 U.S.C. § 2403(a) (1976) 9
42 U.S.C. § 1320e(1) (1976) 4
42 U.S.C. § 1320c-1(a), (b) (1), (e) (1976), as amended
by Pub. L. No. 95-142, § 5(a), (0) (1) (1977) ................ 4
42 U.S.C. § 1320c-4(1) (1976), as amended by Pub. L.
No. 95-142, § 5(d) (3) (B) (i), (0) (2) (1977) 22.02... +
Vv
42 U.S.C. § 1320¢-5 (1976) 4
42 U.S.C. § 1396 et seq. passim
42 U.S.C. § 1396 (1976) 4, 6, 22
42 U.S.C. § 1396a(a)(10), (13)(A)-(D), (19), (22),
(30) (1976) 4
42 U.S.C. § 1396a(a) (17) (1976) 4,6
42 U.S.C. § 1396b(a) (1), (5) (1976) 4
42 U.S.C. § 1396d(a) (1976), as amended by Pub. L.
No. 95-210, § 2(a) (1977) 4
Labor-HEW Appropriations Act, 1979, Pub. L. No.
95-480, § 210, 92 Stat. 1586 (1978) ................ 3 and passim
Labor-HEW Appropriations Act, 1978, Pub. L. No.
95-205, § 101 (1977) .. 6, 24
Labor-HEW Appropriations Act, 1977, Pub. L. No.
94-439, § 209 (1976) 6
42 C.F.R. § 440.210 (1978) 4
42 C.F.R. § 440.220 (1978) 4
42 C.F.R. §440.230 (1978) 4
42 C.F.R. § 440.230(¢) (1) (1978) 6
42 C.F.R. § 440.260 (1978) 4
44 Fed. Reg. 17937 (1979) (to be codified in 42 C.F-R.
§ 435.903) cde oe
43 Fed. Reg. 31875 (July 21, 1978) 24
24
27
43 Fed. Reg. 4570 (February 2, 1978)
S. Cr. Rune 15(f) ...... 2,
S. Cr. Ruiz 14(1) 3
Calif. 1978 Appropriations Act, ch. 359 (July 6,1978) .. 15
Act of Nov. 17, 1977, P.A. 80-1091, § 1, Inu. Rev. Srar.
ch. 23, §§ 5-5, 6-1, 7-1 (Supp. 1977) 0.0... 4 and passim
Inu. Rev. Stat. ch. 23, § 5-1 et seq. 5
Inu. Rev. Srat. ch. 23, § 6-1 et seg. 5
Iu. Rev. Stat. ch. 23, § 7-1 et seq. 5
Towa Social Services and Appropriations Act, § 16,
Item 4 (June 22, 1978) 16
Ky. Rev. Stat. Ann. § 205.010 15
La. Rev. Stat. Ann. § 40 :1299.35 15
1978 Mass. Acts ch. 367, § 2, Item 4402-5000 ... 15
1978 Minn. Laws ch. 508 16
Mo. Rev. Star. § 208.153 .
N.J. Stat. Ann. § 30:4D-6.1
1978 Pa. Laws 1978-16A, 1978-149
ah Ce, Deke ee OO
Tenn. FY 1978-1979 Appropriations Act, § 57 (May 11,
1978)
ar en
1977 Wis. Laws ch. 245 (April 11, 1978) ...
Wyo. Appropriations Act, § 25, Item 6 (March 17,
1978)
Ala. Comm’r of Medical Assistance, Memorandum of
February 22, 1978
Ark. Dep’t of Human Services, Memorandum of Di-
rector of Medical Services, No. MSP-78-A&B-08
(August 19, 1977)
Del. Div. of Social Services, Rev. Regs., May 1978 ......
Fla, Admin. Rules ch. 10C-7.38, 10C-7.39 (rev. Sep-
tember 1, 1977)
Ga. Dep’t of Medical Assistance, Memorandum of
Comm’r, February 14, 1978
IDPA, Illinois Medical Assistance Program Rule 4.01
et seq.
Ind. Dep’t of Public Welfare, Memorandum of March
bs I ibaa et ie
ance, Memorandum of Director, August 9, 1977 ..........
Miss. Medicaid Comm’n, Memorandum of Director,
August 8, 1977
Mont. Social and Rehabilitative Services, Economic
Assistance Div., Memorandum of Director of Medi-
cal Assistance Bureau, January 5, 1978 . és
Neb. Div. of Medical Assistance, Opinion of Director,
veh, ERE: PETERS TET ae re a
Nev. State Assistance for the Medically Indigent, Bull.
No. 97 (July 19, 1978) )
Vii
N. H. Dep’t of Health and Welfare, Memorandum of
Director of Div. of Welfare, May 8, 1978
N. Mex. State Welfare Agency, Div. of Social Services,
Memorandum of Director, October 1, 1977
N. D. Medical Services Bd., Memorandum of Director,
October 20, 1977
Ohio Dep’t of Pub. Welfare, Memorandum of Director,
ST I a
Okla. Dep’t of Pub. Welfare, Letter of Director, June
2, 1978
R. I. Dep’t of Social and Rehabilitative Services, Memo-
randum of Director, September 28, 1977 ......................
S. C. Dep’t of Social Services, Circular Letter No.
2320-A (February 24, 1978) ......
Tex. Medical Assistance Program, Bull. No. 6 (Janu-
ary 1978)
Vt. Dep’t of Social Welfare, Memorandum of Director
of Medical Services, April 13, 1978 oo... eoececceecceeee
Other Authorities
123 Cong. Rec. $19,438 (daily ed. Dee. 7, 1977) ................
123 Cong. Rec. $19,439 (daily ed. Dee. 7, 1977) ................
123 Cong. Rec. $18,588 (daily ed. Nov. 3, 1977) ..............
123 Cong. Ree. $18,589 (daily ed. Nov. 3, 1977) ..............
123 Cong. Rec. H10,835 (daily ed. Oct. 12, 1977) ............
123 Cong. Ree, H10,966 (daily ed. Oct. 13, 1977) ............
123 Cong. Rec. H6086 (daily ed. June 17, 1977) ..............
123 Cong. Rec. H6090 (daily ed. June 17, 1977) ..............
IDPA, Annvuat Report 1976 m Siciebladt is
Opinion of the Attorney General of the United States,
43 Fed. Reg. 4835 (February 3, 1978) ...00.2000.........
Memorandum for the Secretary of HEW in Opposition
to the Application for a Stay Pending Appeal, Buck-
ley v. McRae, Sup. Ct. No. A-346 (filed Nov., 1977) ....
U. S. Der’r or Heattu, Epucation anp WELFARE,
HeattH Care Financina ADMINISTRATION, MEDICAID
Strate TasBies Fiscat Year 1976 (1978) 000000...
ee
In Tue
Supreme Court of the United States
Ocroser Term, 1979
No.
DAVID ZBARAZ, M.D., MARTIN MOTEW, M.D., individually and on be-
half of all others similarly situated; CHICAGO WELFARE RIGHTS
ORGANIZATION, an Iilinois not-for-profit corporation; and JANE DOE,
individually and on behalf of all others similarly situated,
Petitioners,
v.
ARTHUR F. QUERN, Director, Illinois Department of Public Ald,
and
JASPER F. WILLIAMS, M.D., and EUGENE F. DIAMOND, M.D.,
Respondents.
CONDITIONAL PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT
If this Court decides that the questions respondents or
the United States present in their appeals from the
lower court’s judgment of April 30, 1979,! require
1 In that peeement Zbaraz v. Quern hae Medicare and
Medicaid Guide (CCH) 929,644 (N-D. Ill, April 29/30, 1979),
at p. 52a, ap be the district court, on remand from the court
of appeals’ decision as to which this writ is sought, held un-
constitutional both a federal Eerexatene provision sere
ing funding of abortions (the “Hyde Amendment”) and an II-
linois abortion coverage policy incorporating the standards of
the Hyde Amendment. pondents here (defendants in the
(Footnote continued on following page)
—er a
plenary consideration within the meaning of Supreme
Court Rule 15(f), or if this Court summarily reverses
that district court judgment insofar as it held the [I-
linois abortion funding policy unconstitutional,? then
petitioners respectfully request a writ of certiorari issue
to review the judgment and opinion of the United States
Court of Appeals for the Seventh Circuit, entered in this
proceeding on February 13, 1979.
OPINIONS BELOW
The opinion of the Court of Appeals for the Seventh
Circuit (p. la, infra) is reported at 596 F.2d 196 (7th
Cir. 1979). That opinion vacated and remanded a judg-
ment of the District Court for the Northern District of
Illinois, dated June 13, 1978. The district court’s un-
reported opinion, dated May 15, 1978, is reprinted in the
Appendix, p. 19a, infra.
! continued
district court) have appealed that decision directly to this
Court, under 28 U.S.C. § 1252 (1976); so also has the United
States, which intervened in these proceedings only on remand
from the court of appeals’ decision, and so is not a respondent
here. It is those appeals from that district court judgment to
which reference is made in the text.
FP Judgment and Order, 114(aXi), 5, at pp. 54a, 55a,
infra.
<i Gen
JURISDICTION
—-
This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1) (1976). The opinion of the Court of Appeals for
the Seventh Circuit was issued and its judgment was
entered (p. 14a, infra) on February 13, 1979. The court
of appeals denied petitioners’ motion to recall the man-
date on March 13, 1979 (p. 16a, infra). On May 10,
1979, Mr. Justice Stevens extended the time for filing
this petition for a writ of certiorari to and including
July 18, 1979.3
QUESTIONS PRESENTED
1. Whether a provision of the Fiscal Year (FY) 1979
Labor-HEW Appropriations Act, Pub. L. No. 95-480,
§ 210, 92 Stat. 1586 (1978) (the “Hyde Amendment”)—
which, on its face, limits only the use of federal funds
for abortions—substantively amends Title XIX of the
Social Security Act, 42 U.S.C. § 1396 et seq., to allow II-
* In their application for an extension of time in which to file
this petition, presented to Mr. Justice Stevens, petitioners
stated that their present intention was to file a cross- peal
from the April 30, 1979, district court judgment, and offered
as a ground for granting the requested extension that it would
enable petitioners to file their jurisdictional statement at the
same time that they filed this gang mye for Exten-
sion of Time, p. 3). Subsequently, on May 25, 1979, petitioners
here did file a notice of cross-appeal from the April 30, 1979,
district court judgment. They have now decided, however, not
to pursue this cross-appeal and, simultaneously with the filing
of this petition, have filed, under Sup. Cr. RULE 141), a
stipulation that their appeal be dismissed. Accordingly, this
petition is not submitted with any jurisdictional statement.
viel
linois to withdraw funding under its Medicaid program
for medically necessary abortion services Title XIX
would otherwise require it to provide.
2. Whether the court of appeals erred in directing
the district court to consider the constitutionality of the
Hyde Amendment, when plaintiffs have never challeng-
ed, or sought any relief with respect to, that provision
and were not bound on remand to do so.
STATUTES AND REGULATIONS INVOLVED
The statutes and regulations involved in this case are:
1. The Social Security Act, 42 U.S.C. §§ 1320c(1)
(1976); 1820c-1(a), (bX 1), (e) (1976), as amended by Pub.
L. No. 95-142, § 5(a), (0X1) (1977); 1820c-4(aX1\ A), (B)
(1976), as amended by Pub. L. No. 95-142, § dX 3X BYXi),
(oX2) (1977); 1820c-5(a), (b) (1976); 1396 (1976);
1396a(aX10), (18XA){D), (17), (19), (22), (30) (1976);
1396b(aX1), (5) (1976); 1396d(a) (1976), as amended by
Pub. L. No. 95-210, § 2(a) (1977); Nii
2. Labor-HEW Appropriations Act, 1979, Pub. L.
No. 95-480, § 210, 92 Stat. 1586 (1978) (“The Hyde
Amendment”);
3. Regulations of the United States Department of
Health, Education and Welfare, 44 Fed. Reg. 17937
(1979) (to be codified in 42 C.F.R. § 435.903); 42 C.F.R.
§§ 440.210-.230, .260 (1978);
4. Illinois Act of Nov. 17, 1977, P.A. 80-1091, § 1, ILL.
REV. STAT. ch. 23, §§ 5-5, 6-1, 7-1 (Supp. 1977).
As the statutes and regulations are lengthy, they are
reproduced in the Appendix, pp. 58a-78a, infra.
OL PR OE treme ~ etre tire ere te ~
ae ee
—§-~
STATEMENT OF THE CASE
Prior to December 15, 1977, Illinois provided public
assistance funding for all abortions—whether medically
necessary or elective—for indigent women participating
in one of the state’s medical assistance programs. The
principal such program is the state Medicaid program,
established pursuant to Title XIX of the Social Security
Act, 42 U.S.C. § 1396 et seq., which is designed to enable
states willing to comply with certain statutory re-
quirements to provide necessa:'y medical services for
categories of needy persons. See ILL. REV. STAT. ch. 23,
§ 5-1 et seq. Over one million persons in Illinois are eligi-
ble for Medicaid.‘
Title XIX requires participating states to establish
reasonable standards for determining the extent of
medical assistance under their programs that are consis-
tent with the objectives of the Medicaid Act, including
the objective of furnishing medical assistance to meet
‘U.S. DeEp’rT OF HEALTH, EDUCATION AND WELFARE,
HEALTH CARE FINANCING ADMINISTRATION, MEDICAID STATE
TABLES FISCAL YEAR 1976 (1978), Table 2. Illinois has. es-
tablished . two Fak sogp state programs providing medical
assistance to in — not qualifying for Medicaid. The state-
funded General Assistance program (“GA”), ILL. REV. Star.
ch. 23, § 6-1 et seq., provides medical assistance payments on
behalf of persons who goaity for p eeaclge assistance cash
benefits. The Aid to the Medically Indigent program (“AMI”)
ILL, Rev. Stat. ch. 23, §7-1 et seg. provides medica
assistance payments on behalf of persons whose income or
resources are too high to qualify them for GA (even though
they would otherwise be eligible) but are nonetheless insuf-
ficient to meet the costs of necessary medical care. Compared
to the Medicaid program, the GA and AMI programs are
small. Approximately 70,000 persons in Illinois receive GA; no
more than 20,000 receive AMI. IDPA, ANNUAL REPORT 1976,
p. 9
=
the costs of necessary medical services, Zbaraz v. Quern,
596 F.2d 196, 198 (7th Cir. 1979) (p. 4a, infra); 42
U.S.C. §§ 1396a(aX17), 1896 (pp. 64a, 61a, infra), and
further prohibits participating states from dis-
criminating in the funding of medical services based on
type ot condition. Zbaraz v. Quern, supra, at 199 (pp.
5a-6a, infra); see 42 C.F.R. 440.230(cX1) (p. 70a, infra).
While Congress has never altered these obligations by
amending Title XIX, it has, for the last three years, at-
tached riders, each commonly referred to as the annual
“Hyde Amendment,” to the annual HEW appropriations
bill. The latest such rider was attached to the FY 1979
Labor-HEW Appropriations Act. It states:
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 necessary for the victims of rape or in-
cest, when such rape or incest has been reported
promptly to a law-enforcement agency or public
health service; or except in those instances where
severe and long-lasting physical health damage to
the mother would result if the pregnancy were
carried to term when so determined by two
physicians.
Pub. L. No. 95-480, § 210, 92 Stat. 1586 (1978.5
On November 17, 1977, the Illinois legislature, over-
riding a gubernatorial veto, amended the state’s medical
5 The FY 1978 appropriations rider, Pub. L. No. 95-205,
§ 101 (1977), was identical to that for FY 1979. The FY 1977
rider, Pub. L. No. 94-439, § 209 (1976), was worded more
restrictively. It provided: “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.” In practice this standard appears to be almost as
ait tae as that of the FY 1978 and FY 1979 riders. See
n.17, infra.
po.
assistance program statutes to withdraw funding for all
abortions except those necessary to preserve the life of
the pregnant woman. P.A. 80-1091, § 1, ILL. Rev. Star.
ch. 28, §§ 5-5, 6-1, 7-1 (Supp. 1977) (p. 71a, infra). This
enactment was and remains essentially the only limita-
tion on otherwise comprehensive state programs of fund-
ing necessary and essential medical care, including
hospital, physician and clinic services. See id.; IDPA, II-
linois Medical Assistance Program Rule 4.01 et seg.
Petitioners (“plaintiffs”) brought this class action
against the Director of the Illinois Department of Public
Aid (“IDPA”)® to enjoin enforcement of the state’s
restriction, insofar as it prohibited coverage of any
medically necessary abortions under the state’s medical
assistance programs.’ Jurisdiction of the district court
was invoked under 28 U.S.C. §§ 1331 and 1343(3) and
(4). Plaintiffs alleged that the Illinois statute violated
both Title XIX of the Social Security Act and the
Fourteenth Amendment to the United States Constitu-
tion. The named plaintiffs were a pregnant woman par-
ticipating in the Illinois Medicaid program, for whom a
physician had determined that an abortion was medical-
ly necessary, though not necessary to preserve her life;
two physicians, each of whose practice includes the per-
* IDPA is the state agency charged with administering the
state’s medical assistance programs. Two physicians were
later allowed to intervene as defendants. See p. 22a, infra.
’ Plaintiffs defined “medically necessary” to encompass
situations where a parece determined that the pregnancy
posed an abnormal risk to the woman’s health, wig
adopting the definition delineated in Doe v. Bolton, 410 U.S.
179, 19 ae) and reiterated in Beal v. Doe, 432 U.S. 438,
441 n.3 (1977): “[w]hether an abortion is hoe ema A is a
professional judgment that . . . may be exercised in light of
all factors—physical, emotional, ;s\vchoiogical, familial, and
the woman’s age—relevant to the w.'ll-being of the patient.”
=
formance of abortions for Medicaid-eligible women; and
the Chicago Welfare Rights Organization, whose
members include women dependent on Illinois medical
assistance benefits for necessary medical services.’
On May 15, 1978, the district court issued a Memoran-
dum Opinion finding that the state’s restriction on
medically necessary abortions under its Medicaid
program violated Title XIX of the Social Security Act.®
As to the defense that the Hyde Amendment had
amended Title XIX, the district court concluded that the
provision was a federal funding limitation only and did
not operate to modify the state’s federal statutory obliga-
tion to provide medically necessary services under its
Medicaid program. The court issued a permanent in-
junction requiring Illinois to fund all medically
necessary abortions under its medical assistance
programs (p. 30a, infra). Having decided the statutory
question for the plaintiffs, the district court found it un-
necessary to reach the constitutional issue. Jd. On June
8 The action was brought on behalf of two classes. One con-
sisted of 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.
The other consisted of 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
| > apse The district court certified both classes (p. 26a, in-
ra). )
* The district court had initially decided to abstain from con-
sideration of the case. Zbaraz v. No. 77 C_ 4522
(Memorandum Opinion and Order, December 21, 1977). Plain-
tiffs appealed, and the court of appeals entered an injunction
pending appeal requiring state — of all medically
necessary abortions. Zbaraz v. Quern, No. 77-2290 (7th Cir.
January 11, 1978). Subsequently, the court of appeals reversed
the district court’s abstention decision. Zbaraz v. Quern, 572
F.2d 582 (7th Cir. 1978).
197 ES Pee
a
13, 1978, a final judgment and order was entered on the
May 15 decision.
On defendants’ appeal from the district court judg-
ment, the United States Court of Appeals for the
Seventh Circuit agreed that Illinois P.A. 80-1091 was in-
consistent with the requirements of Title XIX standing
alone, but held that the Hyde Amendment operated sub-
stantively to amend Title XIX to permit Illinois to deny
state support for all abortions other than those for which
the Hyde Amendment provided federal funding. The
court of appeals directed the district court to modify its
injunction to require Illinois to fund only those abortions
covered by the Hyde Amendment. The court of appeals
also directed the district court to determine “the con-
stitutional questions that remain open,” including
specifically the constitutionality of the Hyde Amend-
ment (p. lla, infra).
On remand the district court thus notified the United
States, pursuant to 28 U.S.C. § 2403(a) (1976), that the
constitutionality of a federal statute had been drawn
into question. On March 8, 1979, the United States was
granted permission to intervene under 28 U.S.C.
§ 2403(a). After further proceedings in which the United
States took part, the district court granted partial sum-
mary judgment to plaintiffs and defendants. Final Judg-
ment and Order, /opril 30, 1979 (p. 52a, infra). The
court held that (1) Illinois P.A. 80-1091, as modified un-
der the court of appeals’ decision to embody the stand-
ards of the Hyde Amendment, violated the equal protec-
tion clause of the Fourteenth Amendment to the United
States Constitution, as applied to deny funding for abor-
tions performed prior to fetal viability (p. 54a, infra);
(2) the Hyde Amendment, to the extent it permitted I]linois
to deny funding for any medically necessary abortions
_
performed prior to fetal viability, violated the Fifth
Amendment to the United States Constitution (pp. 54a-
55a, infra);!° and (3) both the Hyde Amendment and II-
linois P.A. 80-1091, as modified to embody the standards of
the Hyde Amendment, were constitutional as applied to
deny funding for medically necessary abortions, other
than life-preserving ones, performed after fetal viability
(p. 55a, infra). The district court enjoined Illinois from
refusing to fund, under its medical assistance programs,
any medically necessary abortions performed prior to
fetal viability (p. 56a, infra).
Respondents and the United States filed timely notices
of appeal to this Court from the district court’s judg-
ment.
‘0 The district court expressed doubt about the propriety of
ruling on the Hyde Amendment but stated that it felt con-
strained to do so by the terms of the court of a remand.
ne Saar Opinion and Order, April 29, 1979 (p. 37a, n.3,
infra).
'1_ The court enjoined only the “restrictive Illinois abortion
funding policy” as defined in the judgment (p. 56a, infra). The
Hyde Amendment was the subject only of declaratory relief
(pp. 55a-56a, infra).
— OO
= ae
REASONS FOR GRANTING THE WRIT
SEE
I
REVIEW OF THE COURT OF APPEALS’ DECISION
WILL PERMIT DISPOSITION OF THIS CASE
WITHOUT THIS COURT’S RESOLUTION OF CON-
STITUTIONAL QUESTIONS PRESENTED BY THE
APPEALS FROM THE SUBSEQUENT DISTRICT
COURT DECISION.
“A court presented with both statutory and con-
stitutional grounds to support the relief requested usual-
ly should pass on the statutory claim before considering
the constitutional question.” Califano v. Yamanski, 47
U.S.L.W. 4765, 4767 (June 20, 1979) (citations omitted).
Respondents and the United States have appealed to this
Court from the district court’s April 30, 1979, judgment
entered after remand from the court of appeals. Those
appeals present for review two constitutional questions:
(1) whether “Illinois’ restrictive abortion funding
policy,”!2 as applied to deny coverage, under the Illinois
medical assistance programs, for medically necessary
abortions performed prior to fetal viability, violates the
Fourteenth Amendment to the United States Constitu-
tion, and (2) whether the Hyde Amendment, as con-
strued to permit Illinois to deny such funding under its
Medicaid program, violates the Fifth Amendment to the
United States Constitution. Granting the present peti-
tion may allow this Court to avoid deciding either of
those constitutional questions.
The first question urged as a basis for the present
petition is whether the Hyde Amendment substantively
amends Title XIX of the Social Security Act to allow II-
2 See Zharaz v. Quern, Final Judgment and Order, 12(e)
(defining that term as used in the judgment) (p. 58a, infra).
a ee
linois to deny, under its Medicaid program, medically
necessary abortion services Title XIX would otherwise
require it to provide. Granting certiorari as to this ques-
tion and resolving it favorably to petitioners will give
them the full relief they seek—state coverage of all
medically necessary abortions under the Illinois medical
assistance programs, thus obviating any need to decide
either constitutional question.'® See Van Lare v. Hurley,
421 U.S. 338, 344 (1975).
‘8 The court of appeals ruled that, in the absence of the Hyde
Amendment, Title XIX of the Social Security Act would re-
uire Illinois to fund all medically necessary abortions.
ndents Williams and Diamond now seek this Court's
review of that decision in their appeal from the district court’s
subsequent April 30, 1979, ju ent. The decisions of this
Court, however, preclude them from securing review of the
court of appeals’ decision in this collateral fashion. E.g.,
Farmers and Mechanics Natl Bank v. Wilkinson, 266 U.S.
503, 506 (1925); Union Trust Co. v. Westhus, 228 U.S. 519,
522-24 —— heir time for properly seeking review of the
court of appeals decision has, of course, expired. 28 U.S.C.
§ 2101 ( 1976). } Nor can respondents urge the point as an alter-
native ground of affirmance of the court of appeals’ judgment
because, having failed in a timely fashion to seek review of
the court of appeals’ decision, they cannot urge as a basis for
affirmance a rationale that, by relieving [Illinois from an
obligation even to fund Hyde mendment abortions, would
ive them more relief than did the court of appeals’ decision
itself. See n.14, infra.
The court of appeals also ruled that the provisions of Illinois
P.A. 80-1091 applicable to the GA and AMI programs
(neither is governed by Title XIX) were not severable from
that governing the Medicaid program, and that if the latter
fell the former must, as a matter of state law, also fall. For
the same reasons that respondents Williams and Diamond
cannot secure review of the court of appeals’ decision on the
Title XIX question, no respondent can secure review of its
decision on the severability question.
The only relevant statutory question properly before this
Court is thus the Hyde Amendment question urged as a basis
for this petition. Its resolution favorably to plaintiffs, taken
with the court of appeals’ previous resolution of the Title XIX
and severability questions, will be sufficient to grant peti-
tioners the full relief they seek.
po;
The second question presented in this petition is
whether the court of appeals erred in directing the dis-
trict court to consider on remand the constitutionality of
the Hyde Amendment. Granting certiorari as to this
question and resolving it favorably to petitioners will
make unnecessary this Court’s resolution of any question
related to the Hyde Amendment’s constitutionality,
regardless of what other questions in the case are ad-
dressed, or how they are resolved. For if, as plaintiffs
argue, see p. 25, infra, the district court lacked
threshold subject matter jurisdiction to consider the
constitutionality of the Hyde Amendment, then this
Court would necessarily vacate that part of the district
court’s judgment relating to the Hyde Amendment,
without reaching the question of its constitutionality. See
United States v. American Friends Service Committee,
419 U.S. 7, 12n.7 (1974).
In sum, the reasons for avoiding unnecessary con-
stitutional adjudication, see Ashwander v. TVA, 297 U.S.
288, 341, 346-48 (1936) (Brandeis, J. concurring in part),
argue strongly for granting the writ as to both questions
presented.'* See also Taylor v. Lavine, 419 U.S. 1048
‘4 Several decisions of this Court hold that when the
rationale of an argument would not dictate affirmance of the
lower court’s judgment, but would give the party seeking af-
firmance more than that judgment, the argument cannot be
raised as an alternative ground for affirmance, but must be
raised by cross-appeal or ree. E.g., NLRB v. Int'l
Van Lines, 409 U.S. 48, 52n.4 (1972); Mills v. Electric Auto-
Lite Co., 396 U.S. 375, 381n.4 (1970). It is this restriction that
will preclude respondents from raising the statutory questions
resolved adversely to them in the court of appeals, as alter-
native grounds for affirmance, should this Court grant this
petition. See n.13, supra. In NLRB and Mills, supra, the par-
ties seeking affirmance of the lower court judgment had the
opportunity to raise by way of cross-petition or cross-appeal
the arguments that this Court held it would not entertain, but
(Footnote continued on following page)
—
(1974) (granting certiorari to review court of appeals
judgment as to Social Security Act statutory question);
Van Lare v. Hurley, 419 U.S. 1045 (1974) (noting
probable jurisdiction of direct appeal from three-judge
district court presenting constitutional questions coex-
tensive with that statutory question); cf. Van Lare v.
Hurley, 421 U.S. 338 (1975) (disposing of case by resolu-
tion of the statutory question).
Il.
THE COURT OF APPEALS DECISION RAISES AN
IMPORTANT QUESTION OF FEDERAL LAW AFFECT.
ING THE AVAILABILITY OF PUBLIC FUNDING FOR
MEDICALLY NECESSARY ABORTIONS IN MANY
STATES WHICH HAS NOT BEEN, BUT SHOULD BE,
RESOLVED BY THIS COURT.
Whether Medicaid funding will be available for
medically necessary abortion services in a large majori-
ty of states may, without raising constitutional
questions, be determined by the statutory Hyde Amend-
ment question the court of appeals’ decision presents. At
least thirty-six states, in addition to Illinois, have
4 continued ,
they chose to forego that opportunity. In this case, on the
other hand, petitioners seeking review of the court of appeals’
judgment cannot bring their Hyde Amendment statutory
claim before this Court by cross-appealing from the district
court judgment. Farmers and Mechanics Natl Bank v.
Wilkinson, 266 U.S. 503, 506 (1925); Union Trust Co. v.
Westhus, 228 U.S. 519, 522-24 (1913). Accordingly, the Mills
line of cases would not seem to preclude petitioners from rais-
ing their statutory Hyde Amendment claim as an alternative
erence for affirming the April 30th district court judgment.
f, however, these cases were thought to foreclose petitioners
from raising that claim in the appeal ee then grant-
ing this petition for certiorari would presumably be the only
way that this Court could entertain the statutory Hyde
— claim, and thus avoid reaching the constitutional
questions.
~i5~
already adopted standards of Medicaid funding for,
medically necessary abortions far more restrictive than
any this Court has ever held permissible. Fifteen states
have limited their Medicaid abortion services to only
those instances where it can be shown that continuation
of the pregnancy would endanger the woman’s life or
that an abortion is necessary to prevent the woman’s
death.'® Twenty-two others have adopted marginally less
restrictive statutes or regulations patterned on the Hyde
Amendment language.'*
'8 ILL. REV. STAT. ch. 23, §§ 5-5, 6-1, 7-1 (Supp. 1977); Ky.
REV. STAT. ANN. § 205.010; La. Rev. Stat. ANN. § 40:1299.35;
1978 Mass. Acts ch. 367, § 2, Item 4402-5000; Mo. REv. Stat.
208.153; N.J. Stat. ANN. § 30:4D-6.1; 1978 Pa. Laws 1978-
6A, 1978-149; S.D. Comp. Laws ANN. § 28-6; UTAH CODE
ANN. § 55-5-3; Wyo. Appropriations Act, § 25, Item 6 (March
17, 1978); Conn. Dep’t of Social Services, Health Bull. No. 58
(Aug. 19, 1977); Fla. Admin. Rules ch. 10C-7.38, 10C-7.39 (rev.
pt. 1, 1977); Neb. Div. of Medical Assistance — of
Director, Sept. 6, 1977; N.D. Medical Services Bd., emoran-
dum of Director, Oct. 20, 1977; R.I. gi of Social and
1 lcccaatin Services, Memorandum of Director, Sept. 28,
'6 Cal. 1978 Appropriations Act, ch. 359 (July 6, 1978); Tenn.
FY 1978-1979 pet ppe iene Act, § 57 (May 11, 1978); 1977
Wis. Laws, ch. 245 ( —_ 11, 1978); Ala. Comm’r of Medical
Assistance, Memorandum of Feb. 22, 1978; Ark. Dep't of
Human Services, Memorandum of Director of Medical Ser-
vices, No. MSP-78-A&B-08 (Feb. 16, 1978); Del. Div. of Social
Services, rev. regs, May, 1978; Ga. Dep’t of Medical
Assistance, Memorandum of Comm’r, Feb. 14, 1978; Ind.
Dep't of Pub. Welfare, Memorandum of March 17, 1978: Me.
Dep't of Human Services, Div. of Medical Assistance,
Memorandum of Director, Aug. 9, 1977; Miss. Medicaid
Comm'n, Memorandum of Director, Aug. 8, 1977; Mont. Social
and Rehabilitative Services, Economic Assistance Div.,
Memorandum of Director of Medical Assistance Bureau, Jan.
5, 1978; Nev. State Assistance for the Medically Indigent
Bull. No. 97 (July 19, 1978); N.H. Dep't of Health an
Welfare, Memorandum of Director of Div. of Welfare, May 8,
1978; Ohio vent of Pub. Welfare, Memorandum of Director,
Jan. 5, 1978; Okla. Dep’t of Pub. Welfare, Letter of Director,
(Footnote continued on following page)
="
Because indigent women are obviously without the
discretionary funds to pay for abortions, and because
only a very smal! fraction of medically necessary abor-
tions meet the Hyde Amendment standards, the un-
disputed result of these various restrictions on Medicaid
funding for abortions is the denial of medically
necessary abortions to the overwhelming majority of in-
digent women for whom the procedure is medically
necessary. Williams v. Zbaraz, 47 U.S.L.W. 3772, 3773
(May 24, 1979) (Stevens, J. in chambers); Zbaraz v.
Quern (N.D. Ill. April 29, 1979), p. 49a, infra.’ The dis-
16 continued
June 2, 1978; S.C. er of Social Services, Circular Letter
No. 2320-A (Feb. 24, 1978); Tex. Medical Assistance Program,
Bull. No. 6 (Jan. 1978); Vt. Dep’t of Social Welfare, Memoran-
dum of Director of Medical Services, April 13, 1978. Four
states restrict funding to ite endangerment, rape and incest
situations only, and do not provide funding for situations in-
volving severe and long-lasting physical health a Iowa
Social Services and Appropriations Act, § 16, Item 4 (June 22,
1978); 1978 Minn. Laws ch. 508; Kan. Dep’t of Social Services,
Secretary's Memorandum L-230 (Sept. 20, 1978); N. Mex.
State Welfare Agency, Div. of Social Services, Memorandum
of Director, Oct. 1, 1977.
‘7 The record in this case shows that fewer than 3% of all
medically necessary abortions performed in Illinois during
1978 fit the Hyde Amendment standards. ‘eon IDPA,
Utilization of Individual Abortion Procedures, 1978 (Exh. F),
with HEW data on federal reimbursement for abortions,
February, 1978, through September, 1978 (Exh. H), sub-
mitted with plaintiffs’ memorandum, March 22, 1979. HEW
data on abortions being funded under state Medicaid
programs shows that there is little, if any, difference in the
number of Medicaid abortions between states cmpmoving the
FY 1979 Hyde Amendment standard and states limiting fund-
ing to “life-preserving” or “death-preventing” abortions.
HEW data (Exh. H) and Affidavit of Barbara Lindheim
(Exh. G), submitted with plaintiffs’ memorandum, March 22,
1979. Regardless of which restrictive standard has _ been
adopted, the number of Medicaid abortions for indigent
women, including medically necessary abortions, is less than
5% of the number prior to adoption of the restrictions.
~—, =
trict court found on the basis of the undisputed evidence
that “the effect of the new [Illinois abortion funding
policy] . . . will be to increase substantially maternal
morbidity and mortality among indigent pregnant
women” (p. 47a, infra), and that implementation of the
restrictive policy would subject the indigent women
denied the medically necessary abortions they need to
“considerable risk of severe medical problems, which
may even result in [their] death[{s] (p. 47a, infra).!®
The health risks to indigent pregnant women prin-
cipally posed here are those accompanying their inabili-
ty to secure the medically necessary abortions they need,
at least through safe and legal means. But even if some
of these women are assumed to be able to “‘beg, borrow
or steal’” the funds for legal abortions, Williams v.
Zbaraz, 47 U.S.L.W. 3772, 3773 (May 24, 1979) (Stevens, J.
in chambers), the delay occasioned in obtaining the money
to pay for the abortion would itself be harmful. “Time,
of course, is critical in abortion. Risks during the first
trimester are admittedly lower than during the later
‘8 The record in the district court is replete with examples of
the medical problems presented by limiting medically
necessary abortions to the Hyde Amendment standards. See,
e.g., Affidavit of Dr. Oren R. he (Exh. C-10 to gi sub-
mitted with plaintiffs’ memorandum, March 22, 1979 (citin
example of women with essential hypertension, whic
presents a significant risk of eclamptic seizures, hemorrhage,
aspiration pneumonia); see also Affidavit of Dr. David Zbaraz
( xh. E), referred to in Memorandum Opinion of April 29,
979 (pp. 47a, 49a, n.12, infra) ioning example of women
with sickle cell disease who have a 25% risk of going into
sickle cell crisis and dying as a result of pregnancy); Affidavit
of Dr. Peter Barglow (Exh. D) (p. 48a, n.11, infra) (citing ex-
ample of some women forced to carry pregnancy to term
becoming severely depressed or psychotic and engaging in
such self-destructive behavior as self-starvation). See, generai-
ly, Depp Affidavit (Exh. C), submitted with plaintiffs
memorandum, March 22, 1979.
="
months.” Doe v. Bolton, 410 U.S. 179, 198 (1973); see also
Bellotti v. Baird, 47 U.S.L.W. 4969, 4974 (July 2, 1979).
The validity of the state restrictions that pose these
and other medical problems for indigent pregnant
women may turn on the statutory Hyde Amendment
question, for review of which this writ is sought.!® Given
the number of states that have adopted such restrictions,
and the seriously adverse impact of the restrictions on
the health of indigent women for whom abortions are
medically necessary, this question is one of substantial
importance and should be resolved by this Court.
'° The question of whether Title XIX of the Social Security
Act would, in the absence of the Hyde Amendment, require
coverage of medically necessary abortion services under state
Medicaid programs is not one properly presented to this
Court. See n. 13, supra. But every court that has addressed
this question, save one, has concluded that exclusion of such
services would violate the Act. Preterm v. Dukakis, 591 F.2d
121 (ist Cir. 1979); Doe v. Busbee, No. C79-786A (N.D. Ga.
June 4, ty, preliminary oP ae: Emma G. v. Edwards,
No. 77-1342 (E.D. La. Nov. 27, TY ee iy uiunction):
Freiman v. Walsh, No. 77-4171-CV-C (W.D. . 26,
1979); Roe v. roa No. 78-2214 (E.D. Pa. Dec. 21, 197
0
Ga. 1977) (dictum); Emma G. v. Edwar
1050 (E.D. )
F.Supp. 1141, 1152-53 (E.D. Pa. 1976), affd, 555 As 1146
As to tne split among the courts addressing the issue
presented here, see n.24, infra.
— on
Il.
THE DECISION OF THE COURT OF APPEALS IS
ERRONEOUS:
A. ITS DECISION THAT THE HYDE AMEND.-
MENT SUBSTANTIVELY AMENDED THE
SOCIAL SECURITY ACT SO AS TO PERMIT IL-
LINOIS TO DENY FUNDING FOR MEDICALLY
NECESSARY ABORTIONS CONFLICTS WITH
THIS COURT’S DECISION IN TVA vy. HILL AND
EARLIER DECISIONS.
In TVA v. Hill, 437 U.S. 153 (1978), this Court held that
an appropriations provision for completion of a public
works project threatening the habitat of an endangered
species did not amend a substantive statute protecting
that habitat. Chief Justice Burger, writing for the
Court, reaffirmed and applied three principles of
Statutory construction. The first is that “there must be
something to make plain the intent of Congress that the
letter of the statute is not to prevail.” Jd. at 187n.33
(1978), quoting Crooks v. Harrleson, 282 U.S. 55, 60
(1930); see also United States v. American Trucking
Associations, Inc., 310 U.S. 534, 543 (1940). The second
is a “cardinal rule” that an “intention of the legislature
to repeal [a statutory provision] must be clear and
manifest,” TVA, supra, 437 U.S. at 189, quoting Posadas
v. National City Bank, 296 U.S. 497, 503 (1936); “repeals
by implication are not favored.” TVA, supra, 437 U.S. at
189, quoting Morton v. Mancari, 417 U.S. 535, 539
(1974). And the third is that this “cardinal rule” “applies
with even greater force when the claimed repeal rests
solely on an Appropriations Act.” TVA, supra, 487 U.S.
at 190. In holding that the Hyde Amendment amended
Title XIX of the Social Security Act, the court of
appeals disregarded each of these rules of statutory con-
struction, without requisite justification.
=
The FY 1979 Hyde Amendment, part of the Labor-
HEW Appropriations Act, refers only to the use of
federal “funds provided for in [that appropriations]
Act,” not to the types of services Title XIX requires
states to provide as a condition of participation in the
Medicaid program. Nothing on the face of the statute
suggests that Congress meant to do anything other than
limit federal reimbursement for medical services Title
XIX requires states to cover as a condition of their
eligibility for federal support generally for their
Medicaid programs.
The court of appeals recognized the force of both the
plain language of the Hyde Amendment and the rule
disfavoring repeals by implication, especially through an
appropriations measure (p. 10a, infra). It was none-
theless convinced that the Hyde Amendment was in-
tended to alter Title XIX by what it referred to as the
“overwhelming weight of the legislative history” (p. 10a,
infra). It is, however, as a threshold matter, ques-
tionable whether resort to the legislative history of
the Hyde Amendment was appropriate. As this Court
stated in TVA v. Hill, 487 U.S. 153, 184n.29 (1978):
When confronted with a statute which is plain and
unambiguous on its face, we ordinarily do not look
to legislative history as a guide to its meaning. Ex
parte Collett, 337 U.S. 55, 61 (1949), and cases cited
therein. Here it is not necessary to look beyond the
words of the statute. We have undertaken such an
analysis only to meet Mr. Justice Powell’s sugges-
tion that the “absurd” result reached in this case,
post, at 196, is not in accord with congressional in-
tent.
See
=
See also Preterm v. Dukakis, 591 F.2d i21, 134 (1st Cir.
1979) (Bownes, J. dissenting).2° Here there is not even
arguably an “absurd” result from giving the statute its
plain meaning.?! On the contrary, as the court of appeals
itself recognized (p. 8a, infra), Title XIX and related
statutes not uncommonly require state expenditures for
services or eligibility groups unmatched by federal
funds.
If resort to legislative history is appropriate, however,
the history here hardly constitutes the “clear and
manifest” evidence of Congress’ “intention to repeal,”
TVA v. Hill, 487 U.S. 158, 189 (1978), required to
overcome the unambiguous language of the statute. The
legislative history of the Hyde Amendment does not
clearly indicate Congress’ intent one way or the other.
No committee or conference reports accompanied its
20 In Preterm v. Dukakis, 591 F.2d 121 (1st Cir. 1979), the
Court of Appeals for the First Circuit also concluded, on the
basis of its reading of the legislative history, that the Hyde
Amendment had amended Title XIX to permit state restric-
tions on coverage of medically necessary abortions. In dissent,
Judge Bownes stated (at 135-136):
The majority opinion cites United States v. American
Trucking Associations, Inc., 310 U.S. 534, 543-44 (1939), in
support of the doctrine that, when the plain meaning of a
statute produces a result “plainly at variance with the
policy of the legislation as a whole,” it is necessary to
delve into the legislative history. But there is no “legisla-
tion as a whole” to consider here. We have an amendment
attached to a general appropriations bill. This, of course,
is a primary example of why the courts should be and are
extremely reluctant to allow a rider to an appropriations
bill to amend _an entirely separate and distinct statute by
implication. See extended discussion in TVA v. Hill...
21 In TVA, supra, 437 U.S. at 190, this Court stated that “in
the absence of some affirmative showing of an intention to
repeal, the only permissible justification for a repeal by im-
plication is when the earlier and later statutes are irrecon-
cilable,” quoting Morton v. Mancari, 417 U.S. 535, 549 (1974).
oie.
passage. The legislative history consists entirely of floor
debates. Attorney General Bell has characterized those
floor debates generally as “contradictory and incon-
clusive in many respects.” 43 Fed. Reg. 4835 (February
3, 1978). The court of appeals itself (p. 7a, infra)
recognized that some Representatives and Senators were
of the opinion “that the amendment would simply
restrict federal funds for abortions.” It is true that
neither these legislators nor other supporters or op-
ponents of the Hyde Amendment “ever suggested that
[notwithstanding the withdrawal of federal funding]
state funding would be required” (p. 7a, infra). But it
is also true that no legislator ever suggested that the
Hyde Amendment was meant substantively to amend
Title XIX to permit the states to deny funding for the
very medically necessary services it was the funda-
mental purpose of the Act to provide. 42 U.S.C. § 1396
(p. 61a, infra). As Judge Bownes stated in dissent in
Preterm v. Dukakis, 591 F.2d 121, 136 (1st Cir. 1979):
#2 See, e.g., 123 Cong. Rec. H6086, H6090 (daily ed. June 17,
TY Sage sony of Reps. Dornan, Edwards, Volkmer); see also
123 ong. Rec. $19,438-39 (daily ed. Dec. 7, 1977) (remarks of
Sen. Dole); 123 Cong. Rec. S18,588-89 (daily ed. Nov. 3, 1977)
(remarks of Sen. Helms); 123 Cong. . H10,835 (daily ed.
Oct. 12, 1977) (remarks of Rep. Early); 123 Cong. Rec. H10,-
966 (daily ed. Oct. 13, 1977) (remarks of Rep. Flood).
23 The court of appeals sought to a TVA v. Hill by
noting (p. 9a, infra) that “unlike the Hill case, there is no
question here that Congress as a body was well aware of the
implications of the Hyde Amendment and agreed to them.”
Since the question before the court of appeals was precisely
what the implications of the Hyde Amendment were, this
int simply begs the question. The court of appeals also
ound it significant that “the So ese Amendment was in the
form of limiting previously authorized expenditures rather
than authorizing arguably prohibited expenditures” (p. 10a,
infra). But the cases the court of appeals relied upen in sup-
port of the proposition that “the courts have been less hostile
(Footnote continued on following page)
a we
My brethren state that “the record is clear that
both houses of Congress were acutely conscious that
they were engaging in substantive legislation.” If
this is so, it is hard to understand the absence of
any statement during the course of the lengthy
debate that the Hyde Amendment was making a
significant change in the Medicaid Act. Surely,
someone in the Congress would have been per-
ceptive enough and forthright enough to realize the
full implications of the amendment and say so. . . .
[W]e cannot construe silence on a subject as a
positive expression of congressional intent.
In construing a statute, of course, its interpretation by
the agency charged with its enforcement is entitled to
substantial deference, Udall v. Tallman, 380 U.S. 1, 16
(1961), especially when the relevant agency interpreta-
tion has been consistent, and rendered close to the date
of enactment of the statute in question. E.J. DuPont de
Nemours Co. v. Collins, 432 U.S. 46, 55 (1977). The court
of appeals’ interpretation of the Hyde Amendment does
not find any support in the opinion of the Department of
Health, Education and Welfare. Indeed, the Depa. t-
ment’s position on this statutory question appears to
support petitioners.
In McRae v. Mathews, 421 F.Supp. 533 (E.D. N.Y.
1976), HEW stated its understanding that the FY 1977
Hyde Amendment was not intended to define the state’s
“3 continued ;
to gen! modifications via appropriations bills” (p. 10a, infra)
were not decided on that rationale and in any event are inap-
site here. Friends of the Earth v. Armstrong, 485 F.2d 1
10th Cir. 1973), concerned an express congressional repeal
via an + Bree bye measure. City of Los Angeles v. Adams,
556 F.2d 40 ge Cir. 1977), and Eisenberg v. Corning, 179
F.2d 275 (D.C. Cir. 1949), presented situations in which the
provision alleged to effect a repeal and prior legislation were
irreconcilably in conflict. There is no such conflict here. See
pp. 20-21, supra.
a ae
duty to cover abortions under its Medicaid program:
“... It is clear that, under the Medicaid program, the
state’s duty to fund medical procedures covered by their
plans is wholly independent of their right to subsequent
federal reimbursement.” Memorandum for the Secre-
tary of Health, Education and Welfare in Opposition to
the Application for a Stay Pending Appeal, p. 6 (filed in
this Court November, 1977).
The FY 1978 Hyde Amendment (Pub. L. No. 95-205,
§ 101 (1977) ) instructed HEW. to issue regulations
insuring that the provision be “rigorously enforced.” The
regulations issued pursuant to that mandate, by their
express terms, address only the issue of “Federal
financial participation in expenditures for abortions
funded through various HEW programs.” 43 Fed. Reg.
4570 (Feb. 2, 1978). The HEW comments to supple-
mental Hyde Amendment regulations state specifically
that:
These regulations only govern the instances where
Federal funding is available for abortions and other
medical procedures. They do not deal with the
separate question of circumstances under which a
State must fund abortions under the Medicaid
program. 43 Fed. Reg. 31875 (July 21, 1978)
(emphasis added).
In sum, HEW has consistently interpreted the Hyde
Amendment to leave unaffected the states’ obligations
under their Medicaid programs as defined by Title
XIX.24
24 The only other court of appeals to have considered this
eg! question reached the same conclusion, by a 2-1 vote,
as did the court of 4 in this case. Preterm v. Dukakis,
591 F.2d 121 (1st Cir. 1979). But most lower federal courts to
have considered the question support HEW’s—and
petitioners’ —understanding of the Hyde Amendment. Doe v.
(Footnote continued on following page)
= <S
B. THE COURT OF APPEALS’ DIRECTION TO
THE DISTRICT COURT TO CONSIDER ON RE-
MAND THE CONSTITUTIONALITY OF THE
HYDE AMENDMENT INJECTED INTO THE LITI-
GATION A QUESTION AS TO WHICH THERE
WAS NO CASE OR CONTROVERSY.
Petitioners have never challenged the constitutionality
of the Hyde Amendment in this litigation or sought
relief against any federal official. Declaratory and
injunctive relief against the restrictive Illinois abortion
funding policy was sufficient to grant them all the relief
they sought: state coverage of all medically necessary
abortions under the state’s medical assistance programs.
Federal matching funds for such abortions would secure
for plaintiffs no more expansive coverage of abortions
than would be theirs under an order finding the restric-
tive state policy violative of the Social Security Act or
the Fourteenth Amendment, and directing state funded
coverage. See cases collected at n.24, supra; Lewis v.
Shulimson, 405 F. Supp. 807 (E.D. Mo. 1975), aff'd, 534
F.2d 794 (8th Cir. 1976). Accordingly, the question of
the Hyde Amendment’s constitutionality was never
raised either in the district court or the court of appeals.
It was against this background that the court of appeals
24 continued
Busbee, No. C79-786A (N.D. Ga. June 4, 1979); Smith v.
meng No. 75-0380 CH (S.D. W.Va. May 9, 1978); Roe v.
Casey, No. 78-2214 (E.D. Pa. Dec. 21, 1978); Doe v. Mathews,
422 F.Supp. 141, 148, 146 (D. D.C. 1976) (FY 1977 Hyde
Amendment); Doe v. Mathews, 420 F.Supp. 865, 869 - N.J.
1976) (FY 1977 a Amendment). Moreover, in Beal v. Doe,
432 U.S. 438 (1977), this Court analyzed the Pennsylvania
abortion funding restriction in terms of the requirements Ti-
tle XIX imposed on the states, not in terms of the FY 1977
Hyde Amendment, which would have mooted the Title XIX
claim in Beal had it repealed by implication the substantive
requirements of Title XIX.
—26—
nonetheless directed the district court to consider on
remand the constitutionality of the Hyde Amendment.
The court of appeals’ decision in this respect was
plainly erroneous. Requiring the district court to
consider the constitutionality of the Hyde Amendment
presumed that there was a “case or controversy” and
thus subject matter jurisdiction over that question.
Powell v. McCormack, 395 U.S. 486, 495-497 (1969). But
the existence of such a case or controversy here depends
completely on the claims of the plaintiff classes. Sosna v.
lowa, 419 U.S. 393, 399-402 (1975); see also Memphis
Light, Gas and Water Division v. Craft, 436 U.S. 1, 8
(1978). Here, where petitioners never made any claims
with respect to the Hyde Amendment, and were not
bound on remand to do so, the Article III case or
controversy predicate for the district court’s resolution
of that question was absent. Richardson v. Ramirez, 418
U.S. 24, 36 (1974).
we aes
CONCLUSION
For the reasons stated above, if this Court decides that
the questions respondents or the United States present
in their appeals from Zbaraz v. Quern, [1979] Medicare
and Medicaid Guide (CCH) 129,644 (N.D. Ill. April 30,
1979), require plenary consideration within the meaning
of Supreme Court Rule 15(f), or if this Court summarily
reverses that district court judgment insofar as it held
the Illinois abortion funding policy unconstitutional,
then the requested writ of certiorari should issue to
review the judgment and opinion of the Seventh Circuit.
Respectfully submitted,
ROBERT W. BENNETT
357 East Chicago Avenue
Chicago, Illinois 60611
AVIVA FUTORIAN
ROBERT E. LEHRER
WENDY MELTZER
JAMES D. WEILL
Legal Assistance Foundation of Chicago
343 South Dearborn Street
Chicago, Illinois 60604
LOIS J. LIPTON
DAVID GOLDBERGER
Roger Baldwin Foundation of ACLU, Inc.
5 South Wabash Avenue
Chicago, Illinois 60603
Counsel for Petitioners
July 13, 1979
—la—
OPINIONS AND JUDGMENTS BELOW
APPENDIX A
Bn the
Gnited States Court of Appeals
F or the Seventh Circuit
Nos. 78-1669, 78-1709, 78-1787,
78-1890, 78-1891, 78-2029
DAVID ZBARAZ, et al.,
Plaintiffs-A ppellees,
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, 1978—DECIDED FEBRUARY 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 enforcement of a 1977 Illinois statute withdraw-
ing 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 purely elective abortions, and
challenge the limitation on funding only as to medically
necessary abortions. They assert that the Illinois statute
1 Til. Rev. Stat. Supp. (1977) ch. 23 §§ 5-5, 6-1, 7-1.
—2a—
denies them and the classes they represent? rights
aranteed by Title XIX of the ial Security Act
(Medicaid (42 U.S.C. § 1396 et oon) and by the
Fourteenth Amendment to the United States Constitu-
tion.
Plaintiffs are two doctors whose practice includes the
performance for indigent women of medically necessary
abortions, most of which are not necessary for the
preservation of their lives; the Chicago Welfare Rights
py var mp whose members include women on ent
on Illinois medical assistance benefits; and Jane , an
indigent woman requiring a medically necessary abor-
tion but one that is not necessary to save her life. The
a defendant is Arthur F. Quern, Director of the'
llinois Department of Public 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 intervene as
defendants in the court below.
In December 1977 the district court issued an order
abstaining from consideration of the case. Plaintiffs
appealed and this Court granted them an injunction
pending appeal against enforcement of the [Illinois
statute insofar as it prohibits state funding for therapeu-
tic abortions.’
2 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 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 injunction granted below,
the state resumed its prior medical assistance funding for
medically necessary abortions.
* Our injunction order defined “therapeutic” as “medically
necessary or medically indicated according to the professional
medica! judgment of a licensed physician in Illinois, exercised
in light of all factors affecting a woman’s health.” The district
court aan this definition in its final judgment now here
on appea
—Ja—
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 require Illinois to provide med-
ical assistance funding for all therapeutic abortions.
Judge Kirkland concluded that the Hyde Amendment on
which defendants rely does not call for a contrary
result.4 Because the district court resolved the case on
statutory grounds, plaintiffs’ constitutional challenges
were not resolved. The district court permanently
enjoined defendants from denying payments under the
Illinois 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.
This opinion starts with a caveat. This panel is
interpreting Congressional and Illinois General Assem-
bly 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
a by medical advice for the pares 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
pregnancy is a fundamental right. It also stressed that
the abortion decision is primarily a medical one and
emphasized the central role of the physician in helping
to reach that decision. Colautti v. Franklin, ..... Was sevens
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.
‘ The Hyde Amendment (quoted infra) was first enacted as a
rider to the FY 1977 Health, Education and Welfare
appropriations bill. (Section 209 of Pub. L. 95-205; 91 Stat.
1460 . 9, 1977).
—4da—
Preterm, Inc. v. Dukakis, ..... | ie (1st Circuit, Nos.
78-1324, 78-1325, and 78-1326, decided January 15,
1979). We agree with Judge Coffin’s majority opinion in
that case.®
The First Circuit 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 physician, but that it does prohibit a state from
singling out medically 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 provision that state-
established standards for determining the extent of
medical assistance should be “reasonable” and “consis-
tent with the objectives” of the Medicaid Act. 42 U.S.C.
§ 13896a(aX17). These objectives include furnishing medi-
cal assistance “to meet the costs of necessary medical
services.” 42 U.S.C. § 1396. In addition, the regulations
promulgated pursuant to Title XIX 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.F.R. § 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 dis-
° Two. other courts have also recently handed down opinions
in similar cases. In Roe v. Casey (E.D. Pa., decided 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 medically necessary but not
unded under the Hyde Amendment.
In Firieman v. Walsh (W.D. Mo. No. 77-4171-CV-C, decided
January 26, 1979), the court similarly held that a state could
not discriminate against funding medically necessary abor-
tions 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.
—5a—
criminate[s] in 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 Circuit was unanimous that the Medicaid Act re-
quires 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 XIX in such a
way as to allow states to limit funding to the categories
of abortions specified in that amendment.
The Hyde Amendment is a provision which has been
enacted in varying forms into the appropriations bills
funding the Department of Health, Education and
Welfare and the Labor Department for fiscal years
1977, 1978 and 1979. The fiscal 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 in-
cest, 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 damage to
the mother would result if the pregnancy were
carried to term when so determined by two
physicians.” (See note 4 supra.)
Since, like the First Circuit, we have held that Title
XIX prohibits discrimination in funding based on type of
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 Massachu-
setts law is similar to but somewhat more liberal than the
Illinois statute here at issue, which provides funding onl
when an abortion is “necessary for the preservation of the life
of the woman.”
—6§a—
condition, the Hyde Amendment by singling out abor-
tions 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 expenaiture of federal funds. Un-
der 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 Congress has used an appropriations measure to
effect such a change in the law, both because this
reading enhances the likelihood of confusing and disrup-
tive annual changes in the substantive law and because
the Supreme Court has —*, disapproved of so inter-
preting an appropriations bill. Tennessee Valley Authori-
ty uv. Ht, os USS. ....., 46 LW 4673.
The Hyde Amendment on its face refers only to the
use of federal funds. The plaintiffs have asserted that
the language of the Hyde Amendment itself appears
clear, so that it is—theoretically at least—unnecessary to
consult the legislative history. As the preceding discus-
sion indicates, however, what the states are required to
do to comply with the requirements of Title XIX is not
easily determined. Although 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
’ The Hyde Amendment clearly mandates abortion funding
in two categories of cases not covered by the Illinois law—
cases of promptly reported rape or incest, and cases in which
severe and long-lasting damage to the mother’s physical
health would result from continuing the pregnancy. Illinois is
required to fund abortions falling into these categories under
its Medicaid plan and is entitled to the usual federal
reimbursement. The remaining question is whether Illinois
must pursuant to Title XIX provide at its own expense
abortions which are medically necessary but which do not
= for federal reimbursement under the Hyde Amend-
ment.
—l/a—
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
governments,® it becomes appropriate to consult the
legislative history of the Hyde Amendment to see what
impact its provisions were intended to have on the sub-
stantive obligations of the participating states.
A fair-minded reading of the lengthy and often highly
emotional floor debates in both houses of Congress dur-
ing 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 restrict federal funds for abortions. In
context, however, even these remarks were apparently
intended to distinguish between a prohibition on abor-
tions (which would be unconstitutional 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 opposing the
Hyde Amendment, ever suggested that state funding
would be required. To the contrary, the assumption was
that when federal funds were withdrawn, the states,
although free to continue to pay for abortions not falling
within the parameters of the Hyde Amendment, would
refuse to do so.!°
* 42 U.S.C. § 1396b sets out the basic scheme for partial
federal reimbursement of state expenditures under Medicaid.
® Some of these comments appear at 123 Cong. Rec. H. 6
6090 (June 17, 1977); 123 Cong. Rec. H. 10826-10830 (Oct. 12
1977); 123 Cong. Rec. S. 11039 (June 29, 1977).
10 Comments revealing that assumption appear throughout
the debates, but a sample of them can be iad 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. Holtzman); id. at 6093 (Reps.
eiss and Allen) (June 17, 1977) 123 Cong. Rec. H. 10968
(Rep. Sears) (Oct. 13, 1977); 123 Cong. Rec. S. 18583-84 (Sen.
Bayh) id, at 1a589 (Sen. Packwood) Nov. 3, 1977); 123 ong.
my n. Brooke) (Aug. 4, ; 123 Cong. Rec. S.
11040 (Sen. McGovern) (June 29, 1977). , 4
—8a—
In addition, a frequently reiterated belief was that
taxpayers ought not to be compelled by the federal
government 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 expen-
ditures required by federal law came from the state
rather than the federal keen & Nor is there any
suggestion in the Congressional debates that the Hyde
Amendment would alter the basic 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
‘1 Samples of these remarks appear at 123 ~s * Rec. H.
6085 (Rep. Obey); id. at 6088 (Rep. Rudd); id. at 6089 (Rep.
Young) (June 17, 1977); 123 Cong. Rec. H. 10835 (Rep. Early)
Nt. 12, 1977); 123 Cong. Rec. S. 18584-18585 (Sen. Helms)
Nov. 3, 1977).
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 indicate, when Congress has
imposed such conditions, it has done so explicitly and for the
apparent purpose of encouraging the states to undertake
rograms Congress deemed to be desirable. Not only did
Seantens not explicitly shift the funding obligation to the
states in the Hyde Amendment, but it also clearly did not
intend to encourage abortions.
‘8 We do not rely on the fact that both the House and the
Senate waived their rules against aetne in an appropria-
tions bill (House Rule XXI02): Standing Rules of the Senate,
Rule 16.4) in coin iuding that the Hyde Amendment worked a
substantive change in the law. Apparently both houses of
Congress interpret those rules to mean that while a limitation
on expenditures would be acceptable, any provision which
imposed a duty on federal officials woul beyond a
limitation and run afoul of the rules. See 123 Cong. . A.
6082 (June 17, 1977). Because ascertaining when the condi-
tions of the Hyde Amendment would be fulfilled was
interpreted to impose additional duties on federal officials
rong 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 procedural rules, would nevertheless
conflict with our ites pretation of Title XIX, the fact that the
— yt od waived, although relied upon by the defendants, is
not helpful.
—IJa—
not the preferred method of procedure."
Finally, the circumstances under which the Hyde
Amendment was passed distinguish it from Tennessee
Valley Authority v. Hill, supra. The problems the
Supreme Court faced when asked to construe the ap-
propriations for the TVA budget, including the Tellico
Dam, as effecting a pro tanto repeal of the Endangered
a Act do not exist here. Unlike the situation in the
ul case, there is no question 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 expenditures authorized
under one Act should be interpreted to repeal the sub-
4 Early in the debate on the fiscal 1978 appropriations,
Congressman Hyde spoke as follows:
“Yesterday, remarks were made that it is unfortunate to
burden an appropriation bill with complex issues, 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, unfortunately, is an
appropriation bill. I a that. I certainly would like to
prevent, if I could legally, anybody 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
1S Just as important as the life of a rich person. And se we
proceed in this bill.”
123 Cong. Rec. H. 6083 (June 17, 1977). Subsequently,
numerous 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. Rec. H. 6088 gs Eckhardt); id. at 6090 (Rep.
Mazzoli); id. at 6097 (Rep. Meyner) (June 17, 1977); 123 4
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).
—10a—
stantive provisions of an entirely independent Act.'®
Here, in contrast, not only was the appropriations
measure geared specifically to the substantive provisions
of the affected Act, but the amendment was in the form
of limiting previously authorized expenditures rather
than authorizing arguably prohibi expenditures, as
in Aull.
Under these circumstances, mindful that “[tjhe doc-
trine disfavoring repeals * * * applies with even greater
force when the claimed repeal rests solely upon an ap-
propriations act,”!® we are nonetheless convinced by the
overwhelming weight of the legislative history that Con-
gress did intend to alter the substantive requirements of
Title XIX by passing the Hyde Amendment.” Therefore
Illinois is not required by Title XIX to fund abortions
other than those covered by the Hyde Amendment.
As noted, the district court did not reach the con-
stitutional arguments raised by the parties because it
16 As the Supreme Court noted, implying such a repeal could
wreak havoc 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 assurance, every
appropriations measure would be pregnant with prospects
of altering substantive legislation, repealing by implica-
tion any prior statute which might prohibit the expendi-
ture.”
Tennessee Valley: Authority v. Hill, ..... US. at ....., 46 LW
at 4683.
16 Tennessee Valley Authority v. Hill, ..... USS. at ....., 46 LW
at 4683.
17 It is established that Congress has the power to legislate
substantively in an a “Tigo pee Act. United States v.
Dickerson, 310 USS. . 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. Z v.
Corning, 179 F.2d 275, 276 ( .C. Cir, 1949); Friends of the
Earth v. Armstrong, 485 F.2d 1, 9 P pesco Cir. 1973), certiorari
denied, 414 US. 1171; City of Los Angeles v. Adams, 556 F.2d
40, 48-49 (D.C. Cir. 1977).
—lla—
had statutory grounds for its decision. Because the con-
stitutional issues were not considered below, and in light
of the fact that our interpretation of the Hyde Amend-
ment to modify the requirements of Title XIX may alter
the constitutional considerations, it would be —
ehaeg for us to pass on them now. The parties should
ave 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 ex-
pedited consideration of the constitutional questions that
remain open. This consideration should include, inter
alia, whether the Hyde Amendment, by limiting fund-
ing 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
district court must be modified forthwith to require
defendants to grant payments to plaintiff 7 aig and
other recognized and legal medical providers for the
rendition of medical 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 medical care under
fully state-funded plans as well as under Medicaid (Ill.
Rev. Stat. ch. 23 g 6-1 and 7-1; General Assistance and
Local Aid to the Medically Indigent, respectively).
Therefore, they assert, since the Illinois statute has so
far been determined only to contravene Title XIX as
altered by the Hyde Amendment, enforcement of the II-
linois statute should not be enjoined as it applies to pure-
ly state-funded plans. The plaintiffs urge us to find the
statute non-severable, so that its application to purely
‘8 The constraints imposed ~ A Hyde Amendment on
medically necessary abortions which are not imposed on other
kinds of mementy necessary care include (1) a greater
degree of potential harm from withholding treatment (the
threatened damage in the case of an abortion must be “severe
and long-lasting”), (2) the threatened harm must be physical,
~~ (3) two doctors must make the determination of likely
arm.
—12a—
state-funded plans falls with the federally funded por-
tion.!9
This presents a close question that necessitates inter-
reting what the Illinois General Assembly would likely
to done had it been able to foresee the development of
this case.” In a similar situation the Illinois Supreme
Court has held a law non-severable (Sperling v. County
Officers Electoral Board, 57 Ill. 2d 81 (1974) ), whereas
in others it has not (Vissering Mercantile Co. v. Annunzio,
1 Ill. 2d 108 (1953); People ex rel. Engle v. Kerner, 32 Ill.
2d 212 (1965) ). We have been told that the vast majority
of publicly 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 differ from the stan-
dards for Medicaid funding. The defendant State’s of-
ficial has informed us that the Illinois law “represents
Illinois’ understanding of Congressional purpose as
reflected in the Hyde Amendments to federal welfare
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).2! Since
the State itself has tied the challenged statute to the
proper interpretation of what is required by Title XIX,
18 The defendants suggest that we should not consider the
severability issue since the district court did not articulate
this ground for its decision. However, we may affirm a
district court’s ruling which is correct as a matter of law even
though the ab md ground was not expressed. Therefore cases
ci 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.
*0 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 ye gt eliminated.” People ex rel. Engle v.
Kerner, 32 Ill. 212, 221-222 (1965).
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 en-
dangered.
—13a—
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
seme injunction should apply to all publicly funded
abortions.
Vacated and remanded for further proceedings consis-
tent herewith.”
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
* If the Hyde Amendment is determined to violate the
guarantee of equal protection as it inheres in the Due Process
clause of the Fifth Amendment, it appears likely that similar
state action would violate the Fourteenth Amendment.
23 Our mandate shall issue this day.
—l4a—
APPENDIX B
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
February 13, 1979
Before
Hon. WALTER J. CUMMINGS, Circuit Judge
Hon. ROBERT A. SPRECHER, Circuit Judge
Hon. WILLIAM J. BAUER, Circuit Judge
Nos. 78-1669, 78-1709, 78-1787,
78-1890, 78-1891, 78-2029
DAVID ZBARAZ, M.D.., et al.,
Plaintiffs-A ppellees,
Vv.
ARTHUR F. QUERN, et al.,
Defendants-A ppellants.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 77-C-4522—Alfred Y. Kirkland, Judge.
—1l5a—
These causes came on to be heard on the transcript of
the record from the United States District Court for the
Northern District of Illinois, Eastern Division, and were
argued by counsel.
On consideration whereof, it is ordered and adjudged
by this court that the judgment of the said District
Court in these causes appealed from be, and the same is
hereby, VACATED, with costs, and REMANDED, in ac-
cordance with the opinion of this court filed this date.
APPENDIX C
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
March 13, 1979
Before
Hon. WALTER J. CUMMINGS, Circuit Judge
Nos. 78-1669, 78-1709, 78-1787,
78-1890, 78-1891, 78-2029
Davip ZBARAZ, M.D., et al.,
‘
‘
‘
Plaintiffs-A ppellees,
Vv.
ARTHUR F. QUERN, et al.,
Defendants-A ppellants.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 77-C-4522—Alfred Y. Kirkland, Judge.
—17a—
This matter comes before the court for its consider-
ation upon the filing herein of the following documents:
1. The “PLAINTIFFS-APPELLEES’ MOTION TO
“RECALL THE MANDATE, FOR A PARTIAL
STAY OF THE MANDATE, AND FOR OTHER
RELIEF” filed herein on February 26, 1979 by
counsel for the plaintiffs-appellees.
2. The“PLAINTIFFS-APPELLEES’ MEMORAN-
DUM IN SUPPORT OF MOTION TO RECALL
THE MANDATE, FOR A PARTIAL STAY
OF THE MANDATE, AND FOR OTHER
RELIEF” filed herein on February 26, 1979.
3. The “INTERVENING DEFENDANTS-APPEL-
LANTS’ OBJECTION TO PLAINTIFFS-AP-
PELLEES’ MOTION FOR A RECALL OF
MANDATE, FOR A PARTIAL STAY OF
MANDATE, AND TO VACATE THE PER-
MANENT INJUNCTION OF THE DISTRICT
COURT” filed herein on March 1, 1979 by
— for the intervening defendants-appel-
ants.
4. The “DEFENDANT-APPELLANT QUERN’S
OBJECTION TO PLAINTIFFS-APPELLEES’
MOTION FOR A RECALL OF MANDATE,
FOR A PARTIAL STAY OF MANDATE,
AND TO VACATE THE PERMANENT IN-
JUNCTION OF THE DISTRICT COURT” filed
herein on March 9, 1979 by counsel for the
defendant-appellant.
5. A copy of the district court’s order of March 8,
1979, filed herein on March 12, 1979 by counsel
for: the defendant-appellant.
On consideration thereof,
IT IS ORDERED that the plaintiffs-appellees’ motion
to retax the costs on these appeals is hereby GRANTED.
Each party is to bear its own costs on these appeals.
Therefore, the Bill of Costs will be disallowed.
—18a—
IT IS FURTHER ORDERED that the plaintiffs-
appellees’ motion to make technical corrections in the
opinion is hereby GRANTED. References in the court’s
opinion of February 13, 1979, to Appeal Nos. 78-1787
and 78-2029 will be deleted in the caption and at the
tops of each page. Those two appeals were dismissed
prior to the oral argument of this matter,
IT IS ALSO FURTHER ORDERED that the plain-
tiffs-appellees’ motion to recali the mandates, and for a
partial stay of mandates, and for vacation of the district
court’s injunction entered on February 15, 1979, is
hereby DENIED in its entirety.
—
—-i19a—
APPENDIX D
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
’
DAVID ZBARAZ, M.D., et al.,
Plaintiffs,
ARTHUR F. QUERN, etc.,
Defendant.
No. 77 C 4522.
MEMORANDUM OPINION AND ORDER
[May 15, 1978]
This matter is before the Court on the following
motions: (1) defendant’s Motion to Dismiss the Com-
plaint for Want of Jurisdiction; (2) a Motion to Intervene
presented by Jasper F. Williams, M.D. and Eugene F.
Diamond, M.D.; (3). plaintiffs’ Motion to Proceed as a
Class; (4) the parties’ cross-motions for summary judg-
ment on injunctive claims and on the merits; and (5) the
parties’ motions regarding the notice requirements in
this case.
—20a—
The Complaint seeks an injunction against the en-
forcement of Illinois P.A. 80-1091 (the “Act”) which
places restrictions upon Illinois medical assistance
funding for certain types of abortions. Jurisdiction of the
Court is invoked pursuant to 42 U.S.C. § 1983 and 28
U.S.C. § 1343. The Court considers the parties’ motions
in order.
I. DEFENDANT'S MOTION TO DISMISS FOR
WANT OF JURISDICTION
Defendant first moves to dismiss this action for want
of jurisdiction. Defendant argues that plaintiffs lack
standing to bring suit because they have no stake in the
outcome of this litigation. This Court does not agree.
On April 25, 1978, this Court granted plaintiffs leave to
add a party plaintiff to this suit: a pregnant medical
assistance recipient who has been unable to obtain an
abortion because many clinics are currently turning
away such recipients until the scope of the Act has been
determined. The recipient further states that those
clinics which are currently performing abortions are
unable to assist her because of the demand created by
the shortage of available clinics.
A plaintiff has standing to sue if plaintiff can
demonstrate: (1) that he has a concrete, adversary stake
in the outcome of the litigation so that he will suffer an
“injury in fact” if the statute in question is enforced; and
(2) that he is asserting his own legal rights. Warth v.
Seldin, 422 U.S. 490 (1975); Wynn v. Scott, No. 75 C
3975 (N.D. Ill. April 12, 1978) (three-j:dge court).
In this action, both a pregnant medical assistance
recipient unable to obtain an abortion and a physician
regularly performing abortions for such individuals
—2la—
have standing to challenge a law which is alleged to
limit funding of abortions in an unclear manner.
Singleton v. Wulff, 428 U.S. 106 (1976).
Although the Act has not yet been enforced, plaintiffs
here allege that they are potential recipients of or
providers of abortion services which would be funded by
the state but for the enactment of the Act. The
threatened financial impact of the Act is reasonably
direct and certain. See Pierce v. Society of Sisters, 268
U.S. 510 (1925). Plaintiffs clearly have standing to bring
this suit.
Accordingly, defendant’s Motion to Dismiss for Want
of Jurisdiction is denied.
II. MOTION TO INTERVENE
This Court is next asked to decide whether two
doctors may intervene to represent the interests of five
“classes” of individuals.
Applicants seek to intervene pursuant to Rule 24(aX2),
Federal Rules of Civil Procedure. An application for
non-statutory intervention as of right must meet four
requirements. The applicants must: (1) file a timely
application; (2) have an interest in the subject matter of
the action; (3) demonstrate that the protection of their
interests may be impaired by disposition of the action;
and (4) show that their interests are not adequately
represented by an existing party. 3B Moore’s Federal
Practice 124.09-[1] at 24-285 (2nd ed. 1977). This Court
finds that applicants for intervention have met each of
these requirements.
Applicants filed a timely application for intervention.
Applicants filed their petition for intervention on
—22a—
December 12, 1977, six days after the original filing of
the Complaint. The filing of the petition preceded
defendants’ response to the Complaint and all other
proceedings. This Court finds that the application for
intervention was timely.
Applicants have demonstrated that they have an
interest in the subject matter of this action. First,
applicants have standing to sue, except insofar as they
seek to represent the interests of unborn children,
Planned Parenthood v. Danforth, 482 U.S. 52 (1976).
Applicants’ standing alone is a sufficient basis for a
finding that applicants have an “interest” in the action,
Rosado v. Wyman, 397 U.S. 397 (1970).
Applicants have also demonstrated that protection of
their interests may be impaired by disposition of this
suit. In applicants’ absence this Court may render a
decision which will impair their economic and other
interests by allowing funding of more types of abortions
than the Act presently permits.
Finally, applicants have shown that their interests
may not be adequately represented by existing parties.
Applicants here have demonstrated that defendant has
in the past opposed enactment of the statute he is now
called upon to uphold. Under these circumstances,
applicants have met their bvden of demonstrating that
representation “may be” inadequate, Trobovich v. United
Mine Workers, 404 U.S. 528 n. 10 (1972).
Accordingly, applicants Jasper Williams, M.D. and
Eugene Diamond, M.D. may intervene in this action.
This Court will consider their briefs in deciding the
remaining issues in this case.
—23a—
Il]. PLAINTIFFS’ MOTIONS TO PROCEED AS A
CLASS
Plaintiffs next move for certification of two plaintiff
. classes consisting of:
All registered and licensed physicians in Illinois
who are certified to obtain reimbursement for
necessary medical services rendered to, and who
perform medically necessary abortions for, persons
eligible for medical services under the Illinois
Medicaid, state funded General Assistance and Aid
to the Medically Indigent Programs, II]. Rev. Stat.
ch. 23 Art. V-VIII (the “Illinois medical assistance
programs’).
and
All pregnant women eligible for the Illinois Medical
Assistance Programs [Ill. Rev. Stat. ch. 23 Art. V-
VIII] for whom an abortion is medically necessary,
but not necessary for the preservation of their lives,
and who wish such abortions performed.
Defendant opposes certification of these classes on the
following grounds: (1) that class definitions do not
include a statement that members of the class have
suffered injury as a result of the Act and that even if the
definition were amended to include language about
injury, the class representatives could not allege that
they had been so injured; (2) that class definitions are
overbroad because they include two state programs
which are not totally state funded; and (3) that there is
an insufficient showing that the numerosity require-
ments of Rule 23 have been satisfied. This Court does
not agree.
Rule 23, Federal Rules of Civil Procedure establishes
the prerequisites to the maintenance of a class action.
Under Rule 23(bX2), a class action is appropriate when
“the party opposing the class has acted or refused to act
—24a—
on grounds generally applicable to the class” and the
representative is seeking “final injunctive relief or
corresponding declaratory relief.”
For an action to proceed under Rule 23(b\2), however,
the requirements of Rule 23(a) must also be satisfied.
Rule 23(a) requires the putative class to: (1) be “so
numerous that joinder of all members is impracticable”;
(2) present “questions of law or fact common to the
class”; (3) have claims of the representative parties that
“are typical of the claims . . . of the class”; and (4) have
representative parties who “will fairly and adequately
protect the interests of the class.” Plaintiffs have the
burden of proving that a case is appropriately a class
action and meets all the requirements of Rule 23,
Valentino v. Howlett, 528 F.2d 975 (7th Cir. 1976).
A. Numerosity
Plaintiffs have adequately shown that the classes are
“so numerous that joinder of all members is impractical”,
Rule 23(aX1). The affidavits of Drs. Martin Motew,
David Zbaraz, Philip Rosenow and Louis Keith show
that at six hospitals in Chicago, over 51 physicians
perform therapeutic abortions for indigent women
eligible for medical assistance program benefits whose
abortions are not necessary to preserve their lives.
Plaintiffs have also submitted statistical summaries
from which it may be inferred that the number of
physicians throughout Illinois far exceeds 51.
Further, plaintiffs have demonstrated that during
fiscal 1977, over 24,000 abortions were performed for
pregnant women eligible for aid under Illinois medical
assistance programs and that thousands of such abor-
tions were therapeutic abortions not necessary to
preserve the woman’s life.
ee ee
—25a—
Under these circumstances, this Court finds that both
plaintiff classes satisfy the numerosity requirements of
Rule 23. See Robertson v. National Basketball Associ-
ation, 389 F.Supp. 867 (S.D. N.Y. 1975).
B. Common Questions of Law or Fact
Rule 23(aX2) requires that there be a question of law
or fact common to the class, Pollion v. Power, 47 F.R.D.
331 (N.D. Ill. 1969). All class members here challenge
the Act insofar as it denies coverage for certain
therapeutic abortions on the grounds that it violates
Title XIX of the Social Security Act, 42 U.S.C. § 1396a
et seq. and the Ninth and Fourteenth Amendments.
These questions predominate the litigation and are
sufficient to meet the requirement that there be common
questions of law or fact.
C. Typicality
Rule 23(aX3) requires that the claims of representative
plaintiffs be typical of the claims of the class. This
requirement has been interpreted to mean that there
must be no express conflict between representative
parties over litigation issues, Mersay v. First Republic
Corporation of America, 43 F.R.D. 465 (S.D. N.Y. 1968).
In this action, the claims of named plaintiffs and the
class are the same: challenges to the termination of
reimbursement for certain types of therapeutic abor-
tions. Plaintiffs have satisfied the requirements of Rule
23(aX3).
D. Adequacy of Representation
Rule 23(a\4) requires that class representatives fairly
and adequately represent the interests of the class. This
—26a—
requirement has been interpreted to mean that class
representatives must have an interest in the outcome of
the litigation and be represented by attorneys who are
qualified and able to conduct the litigation, Shulman v.
Ritzenbert, 47 F.R.D. 202 (D. D.C. 1960). The represent-
ative physicians here have both pecuniary and profes-
sional interests in providing medical services which may
no longer be funded under the Act. The representative
pregnant woman has an interest in obtaining an
abortion but would be financially unable to obtain one if
the Act remains in effect. Further, plaintiffs’ attorneys
have documented their extensive experience in the area
of class litigation.
This Court finds that plaintiffs have satisfied the
requirements of Rule 23(a\4).
This Court further finds that plaintiffs have ade-
quately shown that defendant has failed to act on
grounds generally applicable to the class, making final
injunctive relief or corresponding declaratory relief
appropriate, Rule 23(bX2), Federal Rules of Civil
Procedure.
Accordingly, plaintiffs’ Motions to Proceed as a Class
are granted. This Court hereby certifies the classes as
hereinabove described.
IV. THE PARTIES’ CROSS-MOTIONS FOR SUM-
MARY JUDGMENT
The parties now move for summary judgment in their
favor on the issue of the validity of the Act. The Court
considers the statutory issues first.
BO
mt =
ria ae
a ee
iii i
—27a—
A. The Act and Title XIX of the
Social Security Act
Plaintiffs first argue that Illinois’ failure to cover
“medically necessary” abortions under the Illinois med-
ical assistance programs violates the Social Security Act
and implementing regulations. This Court agrees.
The Illinois medical assistance programs are designed
to “furnish medical assistance to meet the costs of
necessary medical services,” 42 U.S.C. § 1396a. Eligible
recipients are the “categorically needy” who are recipi-
ents of cash welfare benefits and may include the
“medically needy” whose medical expenses exceed their
available income. Persons eligible for aid must be
covered for the following categories of services: the
“categorically needy” must be provided funds for: (1)
inpatient hospital services, (2) outpatient hospital ser-
vices, (3) other laboratory and x-ray services, and (4)
physicians’ services, whether in the office, patient’s
home, hospital or elsewhere, and the “medically needy”
must be covered for at least the first five services listed
in 42 U.S.C. § 1396d(a). Illinois provides all categories of
care specified in Title XIX.
Once a state has opted to participate in the program,
Title XIX requires that the state establish “reasonable
standards” for determining the extent to which assist-
ance will be given “consistent with the objectives of [the
program|].” Federal regulations further provide that the
state may limit services “based on such criteria as
medical necessity,” 42 C.F.R. § 449.10(aX5Xi) [45 C.F.R.
§ 249.10(aX5Xi)].
Illinois may not arbitrarily deny or reduce the
amount, duration or scope of services to an otherwise
eligible individual solely because of the diagnosis or type
of condition, 42 C.F.R. § 449.10(aX5Xi), [45 C.F.R.
§ 249.10(aX5Xi)]. See also White v. Beal, 413 F.Supp.
1141 (E.D. Pa. 1976).
It is undisputed that the Act authorizes reimburse-
ment to physicians who perform abortions to “preserve”
the life of the woman or who induce miscarriages or
premature births to “preserve” the life of the mother or
her unborn child. It is also clear that Illinois may
permissibly withhold reimbursement to physicians who
perform abortions tor non-medical reasons alone (non-
therapeutic abortions), Beal v. Doe, 97 S.Ct. 2366 (1977);
Maher v. Doe, 97 S.Ct. 2391 (1977), and that Illinois does
so withhold reimbursement.
At issue here is whether an abortion “necessary for
the preservation of the life” of the mother is co-extensive
with a “medically necessary” abortion as mandated by
Title XIX of the Social Security Act. Plaintiffs’ briefs,
affidavits and exhibits provide examples of the circum-
stances under which a physician might perform a
therapeutic abortion deemed “medically necessary” but
not clearly “life preserving.” This Court finds that under
the Act it is unlikely that the state would reimburse
physicians performing abortions for indigent women
whose lives could be shortened or threatened rather than
terminated by carrying the fetus to term.
This Court notes that plaintiffs have shown that a
pregnant woman’s life could be threatened if she were
diabetic, suffering from heart disease, hypertension, or
sickle cell anemia and was not motivated to continue her
pregnancy. (See Depp Affidavit at 6).
Since the medical assistance program is designed to
provide necessary medical services for the needy, this
Court holds that Illinois must provide funds for all
—29a—
therapeutic abortions. Plaintiffs have adequately shown
that necessary medical services are more than services to
save a life in peril. Defendant may not pick and choose
among medically necessary treatments for medical
assistance recipients, but must provide funds for treat-
ment when, in the discretion of the attending physician,
such treatment is medically indicated. The definition of
medical necessity may not differ when the condition
treated is pregnancy. See Beal v. Doe, supra.
This Court recognizes the problems presented by
allowing the physician to define medical necessity. The
problems are highlighted by plaintiffs’ own argument
that it is medically safer to have an abortion in the first
and most of the second trimester than to continue the
pregnancy. Such an argument could convert all first
trimester and most second trimester abortions to
medically necessary (therapeutic) abortions. The at-
tending physician has a great deal of discretion, but that
discretion is not unfettered. The state may not unduly
interfere with the physicians’ determinations but neither
may it ignore the basis upon which the decision is made.
B. The Hyde Amendment
Congress’ enactment of the new Hyde Amendment
(Section 209 of Pub. L. 95-205) would not change the
result here reached. That amendment to the Depart-
ments of Labor and Health, Education and Welfare
Appropriations Act for 1978 provides that:
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
—30a—
promptly to a law enforcement agency or public
health service, or except in those instances where
severe and long-lasting physical health damage to
the mother would result if the pregnancy were
carried to term when so determined by two
physicians.
Limitations on the use of funds in an appropriations bill
will not suspend statutory obligations. See New York
Airways, Inc. v. United States, 369 F.2d 743 (Ct. of
Claims 1966).
This Court finds that the new Hyde Amendment does
not affect the result reached in Part A, supra.
C. The Act and the Constitution
This Court’s resolution of the issues on statutory
grounds makes consideration of plaintiffs’ constitutional
challenges unnecessary.
D. Summary
Accordingly, this Court holds that plaintiffs are
entitled to summary judgment on their claims that the
Act violates Title XIX of the Social Security Act. This
Court hereby orders that defendants be permanently
enjoined. from:
(1) enforcing Illinois P.A. 80-1091 to deny pay-
ments under the Illinois medical assistance pro-
grams to plaintiffs Zbaraz, Motew, and any other
recognized and legal medical providers, for the
rendition of medical services to indigent pregnant
women for therapeutic abortions, or to deny such
payments on behalf of any such indigent pregnant
women for such abortions;
(2) directing notice to any recognized and legal
medical providers, or to persons receiving assist-
—3la—
ance under the Illinois medical assistance pro-
grams, that therapeutic abortions are not, or will
not be, a covered (reimbursable) service under the
Illinois medical assistance programs.
As used herein:
(a) “recognized and legal medical providers”
means ail persons or institutions in Illinois who are
certified to obtain reimbursement for medical
services;
(b) The “Illinois medical assistance programs”
means the Medicaid, state-funded General Assist-
ance, and Aid to the Medically Indigent programs,
established pursuant to Ill. Rev. Stat., ch. 23, Arts.
V-VIII;
(c) “Indigent pregnant women” means pregnant
women eligible for assistance under the Illinois
medical assistance programs;
(d) “Therapeutic” means medically necessary or
medically indicated according to the professional
medical judgment of a licensed physician in IIlinois,
a in light of all factors affecting a woman’s
ealth.
Defendant’s Motion for Summary Judgment is denied.
V. NOTICE REQUIREMENTS
This Court’s resolution of prior motions makes consid-
eration of the parties’ arguments regarding notice
requirements unnecessary.
VI. CONCLUSION
Defendant’s Motion to Dismiss for Want of Juris-
diction is denied.
The Motion to Intervene by Jasper F. Williams, M.D.
and Eugene F. Diamond, M.D. is granted.
—32a—
Plaintiffs’ Motions to Proceed as a Class are granted
as above described.
Plaintiffs’ Motion for Summary Judgment is granted
and a permanent injunction is entered as described
above.
Defendant’s Motion for Summary J udgment is denied.
This Court’s resolution of prior motions makes consid-
eration of the parties’ arguments regarding notice
requirements unnecessary.
ENTER: /s/ ALFRED Y. KIRKLAND, Judge
DATED: May 15, 1978
[Exhibit A omitted]
a
—33a—
APPENDIX E
ee
IN THE UNITED STATES DISTRICT CouRT
For the Northern District of Illinois
Eastern Division
DAVID ZBARAZ, M.D., et al.,
Plaintiffs,
ARTHUR F. QUERN, etc.,
Defendant.
MEMORANDUM OPINION
[April 29, 1979]
Plaintiffs brought this class action’! under 42 U.S.C.
Section 1983 to enjoin enforcement of a 1977 Illinois
| 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 reimbursement for necessary medical
services rendered to, and who perform medically necessary
abortions for, persons eligible for the Illinois medical
assistance programs.
—34a—
statute withdrawing medical assistance funding in
Illinois 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 Plaintiffs are two doctors who perform medically
necessary, but not necessarily life-preserving abortions
for indigent women; the Chicago Welfare Rights Organ-
ization, whose members include women dependent on
Illinois medical assistance benefits; and Jane Doe, an
indigent woman for whom an abortion is medically
2 Those sections provide, in relevant part:
Sec. 5-5. 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: . . . but not including abortions, or
induced miscarriages or premature births, unless, in the
opinion of the physician, such procedures are necessar
for the preservation of the life of the woman seeking suc
treatment, or except an induced premature birth intended
to produce a live viable child and such procedure is
noceeeety for the health of the mother or her unborn
child.
Section 6-1. 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 a
physician, such procedures are necessary for the preser-
vation of the life of the woman seeking sych 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 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 o taining an
abortion, induced omer flys 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 premature
birth intended to produce a viable child and such proce-
dure is necessary for the health of the mother or her
unborn child.
attic i ae en ee ee eT ee eee
omelet ke
en .
—35a—
necessary but not necessary for the preservation of her
life. Defendant Arthur Quern is the Director of the
Illinois Department of Public Aid, the state agency
responsible for administering Illinois medical assistance
programs. Intervenor-defendants include two doctors
and the United States.
The complaint alleged that P.A. 80-1091 violated
plaintiffs’ rights under the Social Security Act, 42
U.S.C. Section 1396 et seq., and the Ninth and Four-
teenth Amendments to the United States Constitution.
Plaintiffs sought both declaratory and injunctive relief.
The case was originally assigned to J udge Kirkland. On
December 21, 1977, he ordered the proceedings stayed
pending an interpretation 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 juris-
diction at the time would be imprudent. He therefore
merely entered and continued plaintiffs’ 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
ruling, 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 case 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 IIlinois’ funding of
only “life-preserving” abortions fell short of its responsi-
bilities under Title XIX to establish “reasonable stand-
—36a—
ards ... for determining... the extent of medical
assistance under the plans which... are consistent
with the objectives of [the Medicaid program],” 42
U.S.C. Section 1396(aX17). The court noted that the
prime objective to 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
impact of the Hyde Amendment on a state’s responsi-
bilities 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 necessary for the victims of rape or
incest, when such rape or incest has been reported
promptly to a law enforcement agency or public
health service; or except in those instances where
severe and long-lasting physical health damage to
the mother would result if the pregnancy were
carried to term when so determined by two
physicians.
Section 210 of Pub. L. 95-480; 92 Stat. 1586, Oct. 18,
1978. Judge Kirkland interpreted the Hyde Amendment
as a prohibition on the use of federal funds rather than a
substantive amendment to the Social Security Act. A
state’s obligations under Title XIX to fund medically
necessary abortions, Judge Kirkland thus concluded,
survived passage of the Hyde Amendment. Judge
Kirkland issued a permanent injunction restraining
defendants from enforcing P.A. 80-1091 to deny pay-
ments under the Illinois medical assistance programs
Fe Mia ms ta tll rate
—37a—
for therapeutic abortions. (Memorandum Opinion of
May 15, 1978, at 11-12).
Defendants appealed and again the Seventh Circuit
reversed. Zharaz v. Quern, ..... fe , No. 78-1669,
February 13, 1979. Following the lead of the First
Circuit Court of Appeals in Preterm, Inc. v. Dukakis, .....
pf eee (1st Cir. Nos. 78-1324, 78-1325, and 78-1326,
decided January 15, 1979), the court held that the Hyde
Amendment, 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 seemingly unambiguous language and its
location in an appropriations measure, therefore, the
Seventh Circuit concluded that the Hyde Amendment
was not just a limitation on the use of federal funds, but
an amendment to Title XIX as well. (Slip Op. at 6).
Since the Amendment removed all but a narrow
category of abortions from Medicaid coverage, it ef-
fectively permitted states also to withhold funds from
non-Hyde Amendment abortions. (Slip. Op. at 10).
The Court of Appeals recognized the constitutional
questions raised by its holding? and remanded the case
*_ The Seventh Circuit 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 constitutionality of the st Amendment, the
United States suggested that the Seventh Circuit “viewed the
federal and state pegislation as inextricably intertwined.”
(Brief for the Uni 1 States, at 4). Although we are not
persuaded that the federal and state enactments are insepar-
able and would hesitate to inject into the proceeding the issue
of the constitutionality of a law rot directly under attack b
= we are obviously constrained to obey the Seventh
ircuits mandate. Therefore, while our discussion of the
constitutional questions will address only the IIlinois statute,
(Footnote continued on following page)
—38a—
to the district court with directions to modify the
permanent injunction and to decide the constitutional
questions.‘ (Slip. Op. at 11).
Pursuant to the Seventh Circuit’s mandate, Judge
Kirkland modified his permanent injunction to require
Illinois to fund under its medical assistance programs
abortions which fall within the scope of the Hyde
Amendment exceptions. (Minute Order entered Feb-
continued
the same analysis applies to the Hyde Amendment and the
relief granted will encompass both laws. We note that
although the Fifth Amendment does not contain an express
Equal Protection Clause, its Due Process Clause has been
construed to incorporate equal protection guarantees. Wein-
berger v. Salfi, 422 U.S. 749, 770 (1975); Richardson v. Belcher,
404 U.S. 78, 81 (1971).
‘ The Seventh Circuit instructed the district court to
determine whether the withholding of funds for “medicall
necessary” abortions violated the constitution. (Slip Op. at 11).
Prior to P.A. 80-1091, Illinois funded “therapeutic” abortions
defined as “medically _hecessary or medically indicated
according to the professional medical judgment of a licensed
physician in Illinois, exercised toy of all factors aitecting
a woman's health.” State of Illinois Dept. of Public Aid—Med-
ical Assistance Program Handbook for Physicians, January
1976, A-204. The Seventh Circuit adopted this definition of
“therapeutic” without addressing 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 constitutionality of
P.A. 80-1091, plaintiffs are advocating a return to the status
quo ante, then hresura a decision in their favor would
result in the funding of all “therapeutic” abortions. But as we
read the complaint, plaintiffs seek funding for “medically
necessary” abortions, whether or not that is broad enough to
include all “therapeutic” abortions. This reading harmonizes
with plaintiffs’ theory of the case—that by funding “medically
necessary” operations other than abortions, Illinois is denyin
plaintiffs equal protection of the laws. Accordingly, we wi
treat the action as an attack on Illinois’ failure to fund
“medically necessary” abortions.
—39a—
ruary 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 consid-
eration” ordered by the Seventh Circuit. 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 tempo-
rary restraining order. The latter motion is a response
by plaintiffs to the announced intention of the Illinois
Department of Public 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 ‘ constitutional
issues in their complaint,> their principal argument is
that, by imposing restrictions on the public funding of
medically necessary abortions which are not imposed on
other medically necessary operations, P.A. 80-1091
violates their rights to equal protection of the laws
guaranteed by the Fourteenth Amendment to the
® Plaintiffs also alleged that P.A. 80-1091 violated the Estab-
lishment and Free Exercise Clauses of the First Amendment
to the Constitution made applicable to the states by the Four-
teenth Amendment, and the Due Process Clause of the Four-
teenth Amendment. (Complaint, par. 22(d) ). Plaintiffs’ due
rocess claim rests on their argument that the statute
disrupts “the carefully constructed balance of constitutional
interests Wade and its pregency established.” (Memorandum
ir 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.
—40a—
United States Constitution.6 The framework for ana-
lyzing claims of alleged deprivations of equal protection
is now well-established:
We must decide, first, whether [the statute] oper-
ates to the disadvantage of some suspect class or
impinges upon a fundamental right explicitly or
implicitly protected by the Constitution, thereby
requiring strict judicial scrutiny. ... If not, the
[legislative] scheme must still be examined to deter-
mine whether it rationally furthers some legitimate,
articulated state purpose and therefore does not
constitute an invidious discrimination. .. .
San Antonio School District v. Rodriguez, 411 U.S. 1, 17
(1973).
Relying on Roe v. Wade, 410 U.S. 113 (1973) and
subsequent abortion decisions, plaintiffs contend that
strict judicial 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 procurement of an abortion unneces-
sary to save a mother’s life. The Texas legislation was
constitutionally infirm, the Court held, because for every
stage of a woman’s pregnancy, 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, that
* Plaintiffs have also challenged as unconstitutional the
reporting requirement for rape victims. None of the plaintiffs,
however, have asserted any personal stake in the determin-
ation 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.2d 346 (9th Cir. 1974), cert. denied 420 U.S. 962 (1975).
_ —
—4la—
although the right of personal privacy “includes the
abortion decision . . . this right is not unqualified and
must be considered against important state interests in
regulation.” 410 U.S. at 154. See also, Doe v. Bolton, 410
U.S. 179, 189 (19783).
Thus, the right recognized in Roe is not an affirmative
right to an abortion, but is simply a right to make and
effectuate the abortion decision, at least in the first
trimester of pregnancy, free from governmental regula-
tion. 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 achieved viability, a state may constitutionally
proscribe abortion “except where it is necessary, in
appropriate medical judgment, for the preservation of
the life or health of the mother.” 410 U.S. at 164, 165.
Plaintiffs argue here that by erecting a “substantial
impediment to poor women’s obtaining medically nec-
essary abortions,” P.A. 80-1091 restricts the effectu-
ation of their decision to “bear or beget a child,” and
thereby triggers strict scrutiny. We believe this argu-
ment has been explicitly 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 although it pays the
expenses of childbirth. Plaintiffs in Maher argued that
the Connecticut medical assistance scheme infringed
upon their fundamental rights as announced 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 allocation of public funds.
o> a) a oe
—42a—
The indigency that may make it difficult—and in
some cases, im ible—for some women to have
abortions is neither created nor in any way affected
by the Connecticut regulation.
*. ¢+ ¢+ & *&
There is a basic difference between direct state inter-
ference with a protected activity and state encour-
agement of an alternative activity consonant with
legislative policy.
432 U.S. at 474, 475.
As in Maher, plaintiffs here will encounter difficulty
effectuating their decision to terminate a pregnancy not
because of any state regulation, but because of their
indigency. Maher compels the conclusion, therefore, that
P.A. 80-1091 impinges upon no fundamental right and
should not be subjected to strict judicial scrutiny.’
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 Supreme Court declared unconstitutional various
state statutory provisions which denied welfare assist-
ance to persons who hac’ .ot 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 year
ditferently from those who had satisfied 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 sub-
’ Plaintiffs apparently do not argue that P.A. 80-1091
creates a “suspect classification.” This argument would also be
unavailing under Maher. There the Supreme Court stated
that, “This Court has never held that financial need alone
identifies a es class for purposes of Equal Protection.”
432 U.S. at 470.
—43a—
jected the statutes to strict scrutiny. Finding no
compelling justification for treating one year residents
differently, the Court concluded that the statutes were
unconstitutional. The Court noted that if the purpose of
the provisions 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 case, plaintiffs contend that Illinois is penal-
izing indigent women who desire to exercise their right
to effectuate 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
woman’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
indigent travelers. We find no support in the right-
to-travel cases for the view that Connecticut must
show a compelling interest for its decision not to
fund elective 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
subjected 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
Instrict v. Rodriguez, 411 U.S. 1, 17 (1973). Here, since
indigent women in medical need of abortions are treated
differently than indigent women in medical need of
—44a—
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 classification rationally furthers some
legitimate, articulated state purpose. Jd. As the Su-
preme 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 subject to constitutional limita-
tions.
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
encouragement of childbirth. While the allocation of
limited public 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 related to this purpose. In fact, the record
in this case supports the contrary conclusion that the
costs of prenatal care, childbirth and postpartum care
are substantially higher 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
* Plaintiffs have produced convincing statistical evidence
that the average State payment for an abortion is approxi-
mately $145.00, compared to an average cost to the State of
$1,372.00 for funding a childbirth.
—45a—
public aid, the cost differential is even greater. The
Illinois General Assembly was well aware of these
potential cost differences, as shown by the remarks of
Senator Lemke, Senate sponsor of P.A. 80-1091:
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.
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
recognized this as a legitimate state interest in some
circumstances. See Maher v. Roe, 432 U.S. 464 (1977);
Poelker v. Doe, 432 U.S. 519 (1977); Roe v. Wade, 410
U.S. 113 (1973). In Maher, the Court held that
Connecticut could encourage “normal childbirth” by
subsidizing the costs incident to childbirth while, at the
same time, refusing to expend funds for nontherapeutic
(purely elective) abortions. The Connecticut statute
differed from the Illinois statute challenged here
because it provided the funding of “medically necessary”
abortions. We believe this distinction to be crucial to the
determination of this case.
Under Maher, a state may legitimately prefer child-
birth 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 woman for whom an
abortion is medically necessary.’ This approach, which
® Poelker v. Doe, 482 U.S. 519 (1977), does not require a
contrary result. There a woman challenged a city policy that
(Footnote continued on following page)
—46a—
recognizes that the fetus is being carried within a living,
human being, is consistent with Supreme Court deci-
sions which suggest 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; Coloztti v.
Franklin, 99 S.Ct. 675, 688 (1979).!°
* continued : Bea ;
prohibited the performance of abortions in city-owned hospi-
tals for reasons other than to save the mother from grave
hysiological injury or death. When plaintiff was examined by
ospital physicians, however, physicians could not find “any
medical reasons to justify an abortion,” such as “severe
sickness of the patient.” 515 F.2d at 543. Accordingly, the
Court of Appeals treated the case as one where plaintiff
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 oy
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 elective, or nontherapeutic abortions, Maher of
course controlled. In this case, the plaintiff class is defined in
terms of indigent women for wnom abortions are medically
necessary. We agree with plaintiifs that the Supreme Court
could not have intended in its per curiam Poelker decision to
obliterate the distinction it had carefully drawn in Maher
between medically necessary and nontherapeutic abortions.
We note, however, that at least two district courts have given
Poelker v. Doe the sweeping interpretation we re ect here.
Doe v. eg 441 F. Supp. 447, 451-52 (E.D. Wis. 1977);
56 tare)” alsh, No. 77-4171-CV-C (W.D. Mo. filed January
Colautti v. Franklin, 99 S.Ct. 675 (1979) involved a
challenge to a Pennsylvania statute which subjected a
ph sician who performed an abortion to potential criminal
iability if he failed to utilize a statutorily prescribed
technique when the fetus was “viable,” or when there was
sufficient reason to believe that the fetus was viable. The
Court stated:
Moreover, the second part of the standard directs the
a pon to employ the abortion technique best suited to
etal survival “so long as a different technique would not
be necessary in order to preserve the life or health of the
mother” (emphasis supplied). In this context, the word
(Footnote continued on following page)
—47Ta—
As a consequence of the state’s viewing the fetus apart
from the mother, the mother may be subjected to
considerable risk of severe medical problems, which
may even result in her death. Under the Hyde
Amendment standard, a doctor may not certify a woman
as being eligible 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 woul" 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 the later
stages of pregnancy, when an abortion is more danger-
ous 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
condition (Jd. at 4). The effect of the new criteria. then,
will be to increase substantially maternal morbidity and
mortality among indigent pregnant women (Id. at 12).!
10 continued
“necessary” suggests that a particular technique must be
indispensable 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 requires
the physician to make a “trade-off” between the woman’s
health and additional percentage points of fetal survival.
Serious ethical and constitutional difficulties, that we do
not address, lurk behind this ambiguity.
'! Moreover, the new Illinois criteria completely ignore the
very serious threats to an indigent pregnant woman’s
psychological or psychiatric health that may make an abortion
(Footnote continued on following page)
—48a—
We cannot hold that the state has a legitimate interest
in preserving the life of a non-viable fetus at the cost of
increased maternal morbidity and mortality among
indigent pregnant women. In Memorial Hospital v.
Maricopa County, 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 county’s expense. In striking down
the state statute as infringing on the fundamental right
to interstate travel, the Supreme Court stated:
Evaro was an indigent person who required con-
tinued medical care for the preservation of his
health and well being ..., even if he did not
require immediate emergency care. The State could
not deny Evaro care just because, although gasping
for breath, he was not in immediate danger of
stopping breathing altogether. To allow a serious
illness to go untreated until it requires emergency
hospitalization is to subject the sufferer to the
danger of a substantial and irrevocable deterior-
ation in his health. Cancer, heart disease, or
respiratory illness, if untreated for a year, may
become 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 indigents 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
continued
medically necessary. Une doctor has estimated that approxi-
mately 15 per cent of a representative group of women
desiring abortions have a psychiatric need for an abortion. He
also concluded that indigent women are more likely than are
non-indigent women to suffer adverse mental health conse-
uences from unwanted pregnancy. (Affidavit of Dr. Peter
arglow, at 4, 6).
—49a—
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 physical health damage!” appears certain to
occur. Action that the Supreme Court characterized as
“cruel” in Maricopa County can hardly be considered as
a permissible side effect of a “legitimate” state interest
in the present case.
As the Surreme Court recognized in Roe, however, the
state’s inte st 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
determined by balancing “the relative weight of the
respective interests involved.” Roe v. Wade, 410 U.S. at
‘2 The affidavits submitted by plaintiffs give many examples
of medical conditions which would not be 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-threatening conditions. For
example, women with sickle cell disease have a 25 per
cent probability of going into sickle cell crisis and dyin
as a result of pregnancy. (The normal ng armed mortal-
ity rate is 20 per 100,000). Because of this extraordinaril
high mortality rate, abortions for women with sickle cell
disease are almost universally acknowledged to be “med-
ically necessary.” I would thus actively counsel such
women to have abortions, unless they expressed a very
strong desire to have the child. Yet it simply cannot be
known, however careful her care and ae monitor-
ing, whether a particular patient will go into crisis, or
whether the state of her disease will remain unaffected by
presen. It would not be proper medical care to wait
or such an actual threat before terminating the preg-
ne the patient did not want to incur the risk. Yet
the Illinois standard, by rae certainty about the
outcome of a pregnancy, does not comprehend this
inherent uncertainty in medical judgment prior to the
onset of actual health crises.
—50a—
165. 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
medically necessary is not constant. For the reasons just
discussed, a pregnant woman’s interest in her health so
outweighs any possible state interest in the life of a non-
viable fetus that, for a woman medically in need of an
abortion, the state’s interest is not legitimate. At the
point of viability, 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 modified by court order) is
constitutional.
We recognize that, as with any standard that relies on
the judgment of the individual administering it, “med-
ical necessity” may be subject to deliberate misinterpre-
tation and abuse. Some would argue that unscrupulous
physicians, with the active encouragement of their
indigent patients, will transform our decision 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 decision. Nonetheless, we
believe the inherent elasticity of the standard we adopt
today will pose no greater problem to the state’s
administration of its medical assistance programs than
—5la—
it did under the funding scheme that preceded P.A. 80-
1091. Furthermore, we are encouraged by affidavits
submitted by respected members of the medical profes-
sion that suggest that the percentage of abortions any
physician would deem “medically necessary” may be as
low as one fifth of the representative cases in which a
pregnant woman desires an abortion. (Affidavit of Dr.
Oren Depp, at 7). Finally, we note that providers of
services under Illinois medical assistance programs are
subject to civi! and criminal penalties for filing false
Medicaid reimbursement reports. 42 U.S.C. Section
1396h; Ill. 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
abortions 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
granting injunctive relief for submission to the court on
Monday, April 30, 1979.
DaTep: April 29, 1978
ENTER: /s/ JOHN F. GRADY
United States District Judge
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APPENDIX F
IN THE UNITED STATES DIstTRIcT CoURT
For THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID ZBARAZ, M.D., et al.,
Plaintiffs,
Vv.
ARTHUR F. QUERN, etc, et al.,
Defendants.
No. 77 C 4522.
FINAL JUDGMENT AND ORDER
[April 30, 1979]
On April 27, 1979, this Court issued a Memorandum
Opinion which, inter alia, held Illinois’ intended policy
of denying reimbursement for al! 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
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May 15, 1978 Judgment and its June 13, 1978 Judg-
ment, as modified by this February 15, 1979 Order,
remain in force. But this Court directed plaintiffs 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
plaintiffs’ 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—
(a) “Recognized and legal medical providers”
means all persons or institutions in Illinois who
are certified to obtain reimbursement for med-
ical services under the Illinois medical assist-
ance prograrns;
(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
hysician in Illinois, exercised in light of all
actors relevant to her health.
(e) “Illinois’ restrictive abortion funding policy”
means the ef Illinois ~— pursuant to
P.A. 80-1091, Ill. Rev. Stat. Supp. (1977), ch.
23, §§ 5-5, 6-1, 7-1, as modified by the District
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Court Order of February 15, 1979, and as
described in the «tices attached hereto as
Exhibits 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 poten-
tially able to live outside the mother’s womb,
albeit with artificial aid, such that there is a
potentiality for meaningful 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:
(a) all pregnant women eligible for the Illinois
medical assistance programs for whom an
abortion is medically necessary but not neces-
sary for the preservation of their lives and who
wish such abortion performed, and
(b) all Illinois physicians who are certified to
obtain reimbursement for necessary medical
services rendered to, and who perform med-
ically necessary abortions for, persons eligible
for the Illinois medical assistance programs.
4. Partial summary judgment is granted to both
plaintiffs and defendants, as follows—
(a) Partial summary judgment is granted to
plaintiffs 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 assist-
ance p ams, for medically necessary abor-
tions performed 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,
§ 210, 92 Stat. 1586 (1978)], as construed by the
7th Cireuit in Zbaraz v. Quern, ..... ~
(Feb. 13, 1979) to permit Illinois to deny
a
funding, under its Medical Assistance (“Med-
icaid”) Program [Ill. Rev. Stat. ch. 23, Art. V;
42 U.S.C. §§ 1396ff.] for any medically neces-
sary abortion performed prior to fetal viability,
violates the Fifth Amendment to the United
States Constitution.
(b) Partial summary judgment is granted to
defendants 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 assist-
ance programs, for medically necessary abor-
tions performed after fetal viability, do not
violate the equal protection clause of the Four-
teenth Amendment to the United States Consti-
tution.
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 assistance programs, for medically necessary
abortions performed prior to fetal viability, are, pursu-
ant 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 Circuit in Zbaraz v. Quern, ..... {eee (Feb.
13, 1979) to permit Illinois to deny funding, under its
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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, 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 perma-
nently 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 Illinois medical assistance programs to any
recognized and legal providers for the rendi-
tion of medical services to indigent pregnant
women for a necessary abortions per-
formed prior to fetal viability, or to deny such
payments on behalf of any such indigent preg-
nant women for such abortions; and
(b) directing notice to any recognized and legal
medical providers, or to persons receiving
assistance under the Illinois medical assistance
programs, that any medically necessary abor-
tions performed prior to fetal viability, are not,
or will not be, a covered service under the
Illinois medical assistance programs.
7. Within 21 days from the entry of this Decree, or
within such additional time as this Court may allow,
defendant 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
Physicians, which explain, completely, the
terms of 6(a) herein, and of the means by
which such providers can secure reimburse-
ment for medically necessary abortion services.
(Defendant is further ORDERED to furnish such
notices, forms and revisions to plaintiffs’ attor-
(b)
8. (a)
(b)
DATED:
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neys at least seven working days prior to their
official promulgation.);
direct, by first-class mail, the notice attached
hereto as Exhibit C (printed in English and
Spanish) to all Illinois medical assistance
program recipients who may be affected by
this Decree.
The question of defendants’ liability for attor-
neys’ fees, and the amount of such fees to
plaintiffs, is reserved until further order of this
Court. Plaintiffs need not submit any claim for
attorneys’ fees until such time as this Court
considers this question.
Costs are awarded to plaintiffs.
ENTER: /s/ JOHN F. GRADY
UNITED STATES DISTRICT JUDGE
[Exhibits omitted]
atl
STATUTES AND REGULATIONS INVOLVED
APPENDIX G
Federal Statutes
42 U.S.C. § 1320c(1) (1976).
In order to promote the effective, efficient, and
economical delivery of health care services of proper
quality for which payment may be made (in whole or in
part) under this chapter and in recognition of the
interests of patients, the public, practitioners, and
providers in improved health care services, it is the
purpose of this part to assure, through the application of
suitable procedures of professional standards review,
that the services for which payment may be made under
this chapter will conform to appropriate professional
standards for the provision of health care and that
payment for such services will be made—
only when, and to the extent, medically necessary,
as determined in the exercise of reasonable limits of
professional discretion. .. .
42 U.S.C. § 1320c-1 (1976), as amended by Pub.L.
No. 95-142, § 5(a), (0)(1) (1977).
(a) The Secretary shall (1) not later than January 1,
1974, establish throughout the United States appro-
priate areas with respect to which Professional Stand-
ards Review Organizations may be designated, and (2)
at the earliest practicable date after designation of an
area enter into an agreement with a qualified organiza-
tion whereby such an organization shall be conditionally
designated as the Professional Standards Review Organ-
ization for such area. If, on the basis of its performance
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during such period of conditional designation, the
Secretary determines that such organization is capable
of fulfilling, in a satisfactory manner, the obligations
and requirements for a Professional Standards Review
Organization under this part, he shall enter into an
agreement with such organization designating it as the
Professional Standards Review Organization for such
area.
(b) For purposes of subsection (a) of this section, the
term “qualified organization” means—
(1) when used in connection with any area—
(A) an organization (i) which is a nonprofit
professional association (or a component organiza-
tion thereof), (ii) which is composed of licensed
doctors of medicine or osteopathy engaged in the
practice of medicine or surgery in such area, (iii)
the membership of which includes a substantial
proportion of all such physicians in such area, (iv)
which is organized in a manner which makes
available professional competence to review health
care services of the types and kinds with respect to
which Professional Standards Review Organizations
have review responsibilities under this part, .. .
(B) such other public, nonprofit private, or other
agency or organization, which the retary deter-
mines, in accordance with criteria prescribed by
him in regulations, to be of professional competence
and otherwise suitable... .
(e) Where the Secretary finds a Professional Stand-
ards Review Organization (whether designated on a
conditional basis or otherwise) to be competent to
perform review responsibilities, the review, certification,
and similar activities otherwise required pursuant to
provisions of this chapter (other than this part) shall not
be applicable with respect to those providers, suppliers,
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and practitioners being reviewed by such Professional
Standards Review Organization, except to the extent
specified by the Secretary.
42 U.S.C. § 1320c-4(a){1) (1976), as amended by
Pub.L. No. 95-142, § 5(d)(3)(B)(i), (0)(2) (1977).
Notwithstanding any other provision of law, but
consistent with the provisions of this part, it shall be the
duty and function of each Professional Standards
Review Organization for any area to assume, at the
earliest date practicable, responsibility for the review of
the professional activities in such area of physicians and
other health care practitioners and institutional and
noninstitutional providers of health care services (except
as provided in paragraph (7) ) in the provision of health
care services and items for which payment may be made
(in whole or in part) under this chapter for the purpose
of determining whether—
(A) such services and items are or were med-
ically necessary;
(B) the quality of such
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