# Petition — Zbaraz v. Quern

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 960

## Text

Nein Cont 2
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Spfates ie

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 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)

= 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

—52a—
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

—53a—

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

—54a—

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

—56a—

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:

—57a—

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

—59a—

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,

—60a—

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 serv:.zs meets profes-
sionally recognized standards of health care;

42 U.S.C. § 1320c-5 (1976).

(a) Each Professional Standards Review Organiza-
tion shall apply professionally developed norms of care,
diagnosis, and treatment based upon typical patterns of
practice in its regions (including typical lengths-of-stay
for institutional care by age and diagnosis) as principal
points of evaluation and review... .

(b) Such norms with respect to treatment for
particular illnesses or health conditions shall inelude (in
accordance with regulations of the Secretary)—

—6la—

(1) The types and extent of the health care
services which, taking into account differing, but
acceptable, modes of treatment and methods of
organizing and delivering care are considered
within the range of appropriate diagnosis and
treatment of such illness or health condition,
consistent with professionally recognized and ac-
cepted patterns of care;

(2) the type of health care facility which is
considered, consistent with such standards, to be
the type in which health care services which are
medically appropriate for such illness or condition
can most economically be provided.

42 U.S.C. § 1396 (1976).

For the purpose of enabling each State, as far as
practicable under the conditions in such State, to
furnish (1) medical assistance on behalf of families with
dependent children and of aged, blind, or disabled
individuals, whose income and resources are insufficient
to meet the costs of necessary medical services, and (2)
rehabilitation and other services to help such families
and individuals attain or retain capability for inde-
pendence or self-care, there is hereby authorized to be
appropriated for each fiscal year a sum sufficient to
carry out the purposes of this subchapter. The sums
made available under this section shall be used for
making payments to States which have submitted, and
had approved by the Secretary of Health, Education,
and Welfare, State plans for medical assistance.

42 U.S.C. § 1396a(a) (1976).
A State plan for medical assistance must—

—62a—

(10) provide—

(A) for making medical assistance available to
all individuals receiving aid or assistance under any
plan of the State approved under subchapter I, X,
XIV, or XVI, or part A of subchapter IV of this
chapter, or with respect to whom supplemental
security income benefits are being paid under
subchapter XVI of this chapter;

(B) that the medical assistance made available
to any individual described in clause (A}—

(i) shall not be less in amount, duration, or
scope than the medical assistance made avail-
able to any other such individual, and

(ii) shall not be less in amount, duration, or
scope than the medical assistance made avail-
— to individuals not described in clause A;
an

(C) if medical assistance is included for any
group of individuals who are not described in clause
(A) and who do not meet the income and resources
requirements of the appropriate State plan, or the
supplemental security income program under sub-
chapter XVI of this chapter, as the case may be, as
determined in accordance with standards pre-
scribed by the Secretary—

(i) for making medical assistance available
to all individuals who would, except for income
and resources, be eligible for aid or assistance
under any such State plan or to have paid with
respect to them supplemental security income
benefits under subchapter XVI of this chapter,
and who have insufficient (as determined in
accordance with comparable standards) income
and resources to meet the costs of necessary
medical and remedial care and services, and

(ii) that the medical assistance made avail-
able to all individuals not described in clause
(A) shall be equal in amount, duration, and scope;

—63a—

(13) provide—

(A)(i) for the inclusion of some institutional and
some noninstitutional care and services, and

(ii) for the inclusion of home health services for
any individual who, under the State plan, is entitled
to skilled nursing facility services, and

(B) in the case of individuals receiving aid or
assistance under any plan of the State approved
under subchapter I, X, XIV, or XVI, or part A of
subchapter IV of this chapter, or with respect to
whom supplemental security income benefits are
being paid under subchapter XVI of this chapter,
for the inclusion of at least the care and services
listed in clauses (1) through (5) of section 1396d(a)
of this title, and

(C) in the case of individuals not included under
subparagraph (B) for the inclusion of at least—

(i) the care and services listed in clauses (1)
through (5) of section 1396d(a) of this title or

(ii)(I) the care and services listed in any 7
of the clauses numbered (1) through (16) of
such section and (II) in the event the care and
services provided under the State plan include
hospital or skilled nursing facility services,
physicians’ services to an individual in a
hospital or skilled nursing facility during any
period he is receiving hospital services from
such hospital or skilled nursing facility services
from such facility, and

(D) for payment of the reasonable cost of
inpatient hospital services provided under the plan,
as determined in accordance with methods and
standards, consistent with section 1320a-1 of this
title, which shall be developed by the State and
reviewed and approved by the Secretary and (after
notice of approval by the Secretary) included in the
plan, except that the reasonable cost of any such
services as determined under such methods and
standards shall not exceed the amount which would
be determined under section 1395x(v) of this title as

—64a—

the reasonable cost of such services for purposes of
subchapter XVIII of this chapter;

(17) include reasonable standards (which shall be
comparable for all groups and may, in accordance with
standards prescribed by the Secretary, differ with
respect to income levels, but only in the case of
applicants or recipients of assistance under the plan who
are not receiving aid or assistance under any plan of the
State approved under subchapter I, X, XIV, or XVI, or
part A of subchapter IV of this chapter, and with
respect to whom supplemental security income benefits
are not being paid under subchapter XVI of this
chapter, based on the variations between shelter costs in
urban areas and in rural areas) for determining
eligibility for and the extent of medical assistance under
the plan which (A) are consistent with the objectives of
this subchapter, . . .

(19) provide such safeguards as may be necessary to
assure that eligibility for care and services under the
plan will be determined, and such care and services will
be provided in a manner consistent with simplicity of
administration and the best interests of the recipients;

(22) include descriptions of . . . (D) other standards
and methods that the State will use to assure that
medical or remedial care and services provided to
recipients of medical assistance are of high quality;

—65a—

(30) provide such methods and procedures relating
to the utilization of, and the payment for, care and
services available under the plan (including but not
limited to utilization review plans as provided for in
section 1396b(iX4) of this title) as may be necessary to
safeguard against unnecessary utilization of such care
and services and to assure that payments (including
payments for any drugs provided under the plan) are
not in excess of reasonable charges consistent with
efficiency, economy, and quality of care;

42 U.S.C. § 1396b(a) (1976).

From the sums appropriated therefor, the Secretary
(except as otherwise provided in this section) shall pay
to each State which has a plan approved under this
subchapter, for each quarter, beginning with the
quarter commencing January 1, 1966—

(1) an amount equal to the Federal medical
assistance percentage (as defined in section 1396d-
(b) of this title, subject to subsections (g) and (h) of
this section) of the total amount expended during
such quarter as medical assistance under the State
plan (including expenditures for premiums under
part B of subchapter XVIII of this chapter, for
individuals who are eligible for medical assistance
under the plan and (A) are receiving aid or
assistance under any plan of the State approved
under subchapter I, X, XIV, or XVI, or part A of
subchapter IV of this chapter, or with respect to
whom supplemental security income benefits are
being paid under subchapter XVI of this chapter,
or (B) with respect to whom there is being paid a
State supplementary payment and are eligible for
medical assistance equal in amount, duration, and
scope to the medical assistance made available to
individuals described in section 1396a(aX10XA) of

—66a—

this title, and except in the case of individuals sixty-
five years of age or older and disabled individuals
entitled to hospital insurance benefits under sub-
chapter XVIII of this chapter who are not enrolled
under part B of subchapter XVIII of this chapter,
other insurance premiums for medical or any other
type of remedial care or the cost thereof); plus

(5) an amount equal to 90 per centum of the
sums expended during such quarter which are
attributable to the offering, arranging, and fur-
nishing (directly or on a contract basis) of family
planning services and supplies;

42 U.S.C. § 1396d(a) (1976), as amended by Pub. L.
No. 95-210, § 2(a) (1977).

For purposes of this subchapter—

The term “medical assistance” means payment of part
or all of the cost of the following care and services (if
provided in or after the third month before the month in
which the recipient makes application for assistance) for
eligible] individuals, .. .

(1) inpatient hospital services (other than ser-
vices in an institution for tuberculosis or mental
diseases);

(2A) outpatient hospital services, and (B) con-
sistent with State law permitting such services,
rural health clinic services (as defined in subsection
(1) of this section) and any other ambulatory
services which are offered by a rural health clinic
(as defined in subsection (1) of this section) and
which are otherwise included in the plan;

(3) other laboratory and X-ray services;

(4A) skilled nursing facility services (other
than services in an institution for tuberculosis or
mental diseases) for individuals 21 years of age or
older (B) effective July 1, 1969, such early and

—67a—

periodic screening and diagnosis of individuals who
are eligible under the plan and are under the age of
21 to ascertain their physical or mental defects, and
such health care, treatment, and other measures to
correct or ameliorate defects and chronic conditions
discovered thereby, as may be provided in regula-
tions of the Secretary; and (C) family planning
services and supplies furnished (directly or under
arrangements with others) to individuals of child-
bearing age (including minors who can be con-
sidered to be sexually active) who are eligible under
the State plan and who desire such services and
supplies;

(5) physicians’ services furnished by a physician
(as defined in section 1395x(rX1) of this title),
whether furnished in the office, the patient’s home,
a hospital, or a skilled nursing facility, or elsewhere;

(6) medical care, or any other type of remedial
care recognized under State law, furnished by
licensed practitioners within the scope of their
practice as defined by State law;

(7) home health care services;

(8) private duty nursing services;

(9) clinic services;

(10) dental services;

(11) physical therapy and related services;

(12) prescribed drugs, dentures, and prosthetic
devices; and eyeglasses prescribed by a physician
skilled in diseases of the eye or by an optometrist,
whichever the individual may select;

(13) other diagnostic, screening, preventive, and
rehabilitative services;

(14) inpatient hospital services, skilled nursing
facility services, and intermediate care facility
services for individuals 65 years of age or over in an
institution for tuberculosis or mental diseases;

(15) intermediate care facility services (other
than such services in an institution for tuberculosis
or mental diseases) for individuals who are deter-

—68a—

mined, in accordance with section 1396a(aX31\A) of
this title, to be in need of such care;

(16) effective January 1, 1973, inpatient psych-
iatric hospital services for individuals under age 21,
as defined in subsection (h) of this section; and

(17) any other medical care, and any other type
of remedial care recognized under State law,
specified by the Secretary;

except as otherwise provided in paragraph (16), such
term does not include—

(A) any such payments with respect to care or
services for any individual who is an inmate of a
public institution (except as a patient in a medical
institution); or

(B) any such payments with respect to care or
services for any individual who has not attained 65
years of age and who is a patient in an institution
for tuberculosis or mental diseases.

Labor—HEW Appropriations Act, 1979, Pub. L.
No. 95-480, § 210, 92 Stat. 1586 (1978) (“The Hyde
Amendment”).

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 ifthe fetus were carried to
term; or except for such medical procedures necessary
for the victims of rape or incest, when such rape or
incest has been reported promptly to a law enforcement
agency or public health service; or except in those
instances where severe and long-lasting physical health
damage to the mother would result if the pregnancy
were carried to term when so determined by two
physicians.

Nor are payments prohibited for drugs or devices to
prevent implantation of the fertilized ovum, or for
medical procedures necessary for the termination of an
ectopic pregnar“y. 3

—69a—
APPENDIX H

FEDERAL REGULATIONS

44 Fed. Reg. 17937 (1979) (to be codified in 42
C.F.R. § 435.903).

The agency’s policies and procedures must ensure that
eligibility is determined in a manner consistent with
simplicity of administration and the best interests of the
applicant or recipient.

42 C.F.R. § 440.210 (1978).

A State plan must specify that, as a minimum,
categorically needy recipients are provided the services
as specified in §§ 440.10-440.50.

42 C.F.R. § 440.220 (1978).

If the plan includes the medically needy, it must
specify that the medically needy are provided, as a
minimum—

(a) The medical and remedial services in §§
440.10-440.50; or

(b) The services contained in any seven of the
sections in §§ 440.10—440.160 and, if the plan
includes inpatient hospital services or skilled nurs-
ing facility services, physicians’ services to recipi-
ents who are patients in a hospital or skilled
nursing facility, even though physician services, as
defined in § 440.50, are not otherwise included for
the medically needy.

—7a—

42 C.F.R. § 440.230 (1978).

(a) The plan must specify the amount and
duration of each service that it provides.

(b) Each service must be sufficient in amount,
duration, and scope to reasonably achieve its
purpose.

(c)(1) The medicaid agency may not deny or
reduce the amount, duration, or scope of a required
service under §§ 440.210 and 440.220 to an other-
wise eligible recipient solely because of the diag-
nosis, type of illness, or condition.

(2) The agency may place appropriate limits on
a service based on medical necessity or on utiliza-
tion control procedures.

42 C.F.R. § 440.260 (1978).

The plan must include a description of methods and
standards used to assure that services are of high
quality.

—Tla—
APPENDIX I

ILLINOIS STATUTE

Act of Nov. 17, 1977, P.A. 80-1091, § 1, Ill. Rev.
Stat. ch. 23, §§ 5-5, 6-1, 7-1 (Supp. 1977).

§ 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: (1) inpatient hospital services; (2) outpatient
hospital services; (3) other laboratory and X-ray services;
(4) skilled nursing home services; (5) physicians’ services
whether furnished in the office, the patient’s home, a
hospital, a skilled nursing home, or elsewhere; (6)
medical care, or any other type of remedial care
furnished by licensed practitioners; (7) home health care
services; (8) private duty nursing service; (9) clinic
services; (10) dental services; (11) physical therapy and
related services; (12) prescribed drugs, dentures, and
prosthetic devices; and eyeglasses prescribed by a
physician skilled in the diseases of the eye, or by an
optometrist, whichever the person may select; (13) other
diagnostic, screening, preventive, and _ rehabilitative
services; (14) transportation and such other expenses as
may be necessary; (15) any other medical care, and any
other type of remedial care recognized under the laws of
this State, but not including abortions, or induced mis-
carriages or premature births, unless, in the opinion of a
physician, such procedures are necessary for the preser-

—72a—

vation of the life of the woman seeking such treatment,
or except an induced premature birth intended to
produce a iive viable child and such procedure is
necessary for the health of the mother or her unborn
child. The preceding terms include nursing care and
nursing home service for persons who rely on treatment
by spiritual means alone through prayer for healing.

§ 6-1.

Financial aid in meeting basic maintenance require-
ments for a livelihood compatible with health and well!-
being, plus any necessary treatment, care and supplies
required because of illness or disability, shall be given
under this Article to or in behalf of persons who meet
the eligibility conditions of Sections 6-1.1 through 6-1.6.
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 preservation of
the life of the woman seeking such treatment, or except
an induced premature birth intended to produce a live
viable child and such procedure is necessary for the
health of the mother or her unborn child.

—73a—

§ 7-1.

Aid in meeting the costs of necessary medical, dental,
hospital, boarding or nursing care, or burial shall be
given under this Article to or in behalf of any person
who meets the eligibility conditions of Sections 7-1.1
through 7-1.3, except where such aid is for the purpose
of obtaining an abortion, induced miscarriage or in-
duced premature birth unless, in the opinion of a
physician, such procedures are necessary for the preser-
vation of the life of the woman seeking such treatment,
or except an induced premature birth intended to
produce a live viable child and such procedure is

necessary for the health of the mother or her unborn
child.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0551%3A1. Public record. Not legal advice.