Appendix — Harris v. McRae
Supreme Court brief1980
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FOR ARGUMENT
APPENDIX MAR 28 1980
RODAK, JR., CLERK
Iu the Supreme Cont of the United States
OCTOBER TERM, 1979
No. 79-1268
PATRICIA R. HARRIS, SECRETARY OF HEALTH,
EDUCATION AND WELFARE,
Appellant
—vs.—
CorRA MCRAE, ET AL.
PATRICIA R. HARRIS, SECRETARY OF HEALTH,
EDUCATION AND WELFARE,
Appellant
—Y3,——
NEW YORK CITY HEALTH AND HOSPITALS Corp.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
APPLICATION FOR A STAY FILED FEBRUARY 11, 1980
PROBABLE JURISDICTION NOTED FEBRUARY 19, 1980
ox
wseies is
At DEERE ERS
Iu the Supreme Court of the United States
OCTOBER TERM, 1979
No. 79-1268
PATRICIA R. HARRIS, SECRETARY OF HEALTH,
EDUCATION AND WELFARE,
Appellant
—vs.—
CorA MCRAE, ET AL.
PATRICIA R. HARRIS, SECRETARY OF HEALTH,
EDUCATION AND WELFARE,
Appellant
—v3s.—
NEW YorK City HEALTH AND HOSPITALS Corp.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
INDEX
Page
Bits Bo ies oe ee TI RN TT TLE 1
Verified Complaint (Class ie, ee SIE DY DD E08 Ce ARES 31
Exhibit A, Cong. Rec. H 10126 (daily ed., September 15,
“ct Sa SRE IEA ti ENT Nee MEE SE 45
MME ORNS fo at ce) 47
Plaintiff’s and Proposed Intervenors’ Amended Complaint
RN NN tn ee eh |< 58
Exhibit “A”, HEW NEWS, Statement by Joseph A.
Califano, Jr., Secretary of Health, Education and
Welfare dated August 4, 1977 00 82
ii INDEX
Plaintiff's and Proposed Intervenors’ Amended Complaint
(Class Action)—Continued
Exhibit “B”, HEW NEWS, Statement by Joseph A.
Califano, Jr., Secretary of Health, Education and Wel-
fare dated December 10, 1977
Judgment in McRae v. Secretary of Health, Education and
Welfare, No. 76 C 1804... itp ebdiiehirittahink kate.
Judgment in New York City Health and Hospitals Corp. v.
Secretary of Health, Education and Welfare, No. 76 C
og EEE ED ES ALOR EET Se a aa
Affidavit of Johan W. Eliot, M.D., dated July 24, 1977
' Affidavit of Mary Doe, dated a 2. 2. eee
Affidavit of Dr. David B. Bingham, dated July 29, 1977...
Affidavit of Jane Doe, dated J _ 2 a. . ROP Raa
Affidavit of Dr. Jane E. Hodgson (Minnesota), dated July
i at RE A A oe EOIN LO
Affidavit of Dr. Jane E. Hodgson (Connecticut), dated Janu-
oy aga Reet LE EEA ION LTE GEGEN ES
Application for Authorization with rejection indicated, dated
tpt miasernyc tear en ea RT cl LEI BI Aa
Letter from Dr. Hodgson to To whom this may concern, dated
5 gs vee Bosnia TT PLT SRE IOS
Letter from Dr. James E. Brown to Dr. Hodgson, dated Oc-
ny Nin ga ee RRS EI I NOES Ie lh PRG
Letter from Dr. D. L. Conn to Dr. Harold R. Mundahl, dated
agate, Leta See ON EBERT NT CO MOL
Addendum to Affidavit of Dr. Hodgson (Connecticut), dated
January 4, 1978 _.... Be
Affidavit of Dr. Hodgson, dated February 2,1978
Plaintiff-Intervenors Affidavit (Theressa Hoover), dated Jan-
ON Os cc ee spelled asiadaladat eth
Plaintiff-Intervenors Affidavit (Ellen Kirby), dated Janu-
OO Sy TE occ enna eee
Resolution On Abortion Rights of the Women’s Division of
the Board of Global Ministries, United Methodist Church...
Page
84
86
88
90
92
95
96
98
105
107
109
111
113
116
117
119
120
122
123
125
127
129
134
138
INDEX
United Methodist Church Excerpts from resolution on Re-
mye Parent io i
Attachment A, Number of Reported Medicaid Abortions,
by State and Justification for Abortion, for which
Federal Matching Funds should be Available under
P.L. 95-205, October 1, 1978-December SS
Total Number of Reported Medicaid Abortions by State and
Reporting Periods during 1978 .0.00.00.0....oceccccccccccccceeee
Total Number of Reported Medicaid Abortions, by Justifica-
tion for Abortion, February 14, 1978-December 3, 1978......
Excerpts From Medical Transcripts:
vc cage ee EE Soe eee ea
coe RS SEI OEP ee aa
ann TN
EE OI cls Se
rE ic ry
I I it
ee ee ae SOOO on
hip speece ch. SoS TORN TOE ASCOT REEL ATS
ce. RR SARIN RMR ele aah ae ana
ca. LaSSESSE UNICAST MICE tis Rs PRE
re I cd ae
ei AT TIE LETT AD
Excerpts From Religious Transcript :
a
iv INDEX
Plaintiffs’ Exhibits:
14—Graph-Maternal Mortality Excluding Abortion..
21—Eleven Million Teenagers, Alan Guttmacher In-
stitute (1976), pp. 22-28 ............................. sbaheibens
24—R. Lincoln, et al., “The Court, the Congress and
the President: Turning Back the Clock on the
Pregnant Poor,” Family Planning Perspectives,
Vol. 9, No. 5, Sept./Oct. 1977, Tables 1 & 3...
27—N. Ryder, “Contraceptive Failure in the United
States,” Family Planning Perspectives, Vol. 5,
Ps
144—Chart, Number of abortions performed at Belle-
vue, Jan. 1, 1969 to July 1, 1970 (proportion
interviewed by Dr. Judith 5 neh a,
146—Chart, Bellevue-Suicide attempts during preg-
sony, RETR REST ELTON OR SRE
147—Chart, Bellevue-Attempts by Patient or Another
Person to Induce an Illegal Abortion During
SOP I a cr Ree
148—Chart, Patients Successfully Obtaining Illegal
Abortion During This ra nm
150—Letter No. 14, dated January 13, 1970 (Belsky).
151—Letter No. 12, dated February 11, 1970
St cp gf REE IIS hls pe oe
152—Letter No. 5, dated November 13, 1969
(Belsky)
156—Letter No. 34, dated May 6, 1969 (Belsky) _.....
159(1)—Letter No. 1, dated March 16, 1970 (Belsky)
159(7)—Letter No. 7, dated April 1, 1970 (Belsky)
159(x)—Letter dated November 13, 1969 (Belsky) _......
169—American Academy of Child Psychiatry Posi-
tion on Medicaid Funding, November 2, 1977...
177—Analysis of DHEW Table, “Average Monthly
Number of Abortions Under Title XIX,” June
Mae IN ea
240—Petitti, et al., “Restricting Medicaid Funds for
Abortions: Projections of Excess Mortality for
Women of Childbearing Age, submitted for
publication as a Public Health Brief in the
American Journal of Public Health, April 4,
1977, pp. 1, 3-6
Page
257
260
262
266
267
268
269
270
271
273
275
277
280
282
284
286
289
a
INDEX
Plaintiffs’ Exhibits—Continued
248—-HEW Memorandum to Task Group on Alterna-
tives to Abortion from the Chair; Report from
the Chair; July 25, 1977, pp. 2-3 ...................
455—Letters submitted by Dr. Powell (A, dated Oc-
A-D_ tober 13, 1977) and Hairston (B, dated October
13, 1977 & C, dated October 17, 1977) certify-
ing and the letter of Dr. Perlman (D, dated
October 20, 1977) refusing Medicaid for a
fifteen-year old with a diagnosis of chronic
pemraneairttls i.
Defendants’ Exhibit H—New York State Maternal Mortality
Study, 1970-76, pp. 6, 25, 27-28, 30 0...
Plaintiffs’ Exhibits:
36—“A Call To Concern,” Christianity and Crisis,
ws SUE se tr i,
347—A copy of a leaflet entitled “Abortion Is Mur-
ON saith moulin ae has ele ee oe a
312A—A photograph of a wall mural which says “God
is Pro Life” which is painted on the side of
St. Louis University’s Baker Building at Grand
Boulevard and Laclede Avenue, St. Louis, Mis-
eta aa ENN OED Le CET IT
462—“Speech To The Maryland Right To Life Ban-
quet” delivered by defendant Henry Hyde, dated
October 29, 1977, referred to in the May 30,
1978 Stipulation as Exhibit A to Plaintiffs’
Second Notice to Admit
368—Copies of letters to the editor published in
March 1978 in The Yorktowner, a Westchester
newspaper which recently changed its name to
North County News
137—Letter dated February 6, 1974 from Maranatha
Baptist Bible College to Dr. James A. Wood,
Jr., Executive Director, Baptist Joint Commit-
De, Se SN a
138—Letter dated March 25, 1974 from Pastor of
Community Baptist Church, Sabattus, Maine,
TN ee nee ned
457—Newsletter No. 3 of the Right to Life Society
SMe ac asin cae ON ee ENS EEN ts
420—A copy of the October 25, 1973 Right to Life
Newsletter 0.0.00...
Page
300
304
307
309
311
312
314
316
317
INDEX
Plaintiffs’ Exhibits—Continued
429—A copy of a letter dated March 31, 1976 signed
by Helen M. Greene and Margaret Fitton re-
specting Save-A-Baby Campaign ............_.
433—A copy of a memorandum from Marge Fitton,
Treasurer, to “Area Directors” respecting Re-
spect Life Collections, dated September 3, 1976..
444—-A copy of the New York State Right to Life
Committee, Inc. Statement of Revenues
352—-A Bulletin of St. Louis Cathedral dated April
2, 1978 which contains a section “Picket Abor-
an Ce eo ee 8
308—A copy of the 1978 March for Life pamphlet......
456—Photographs of the March for Life, January 22,
1978, Washington, D.C.
TATOO ORM S Ce Rem eee eweseeeeeeeeeeeesecebee
lished in The Long Island Catholic, the official
paper of the Rockville Diocese, January 19 and
26, 1978
POSITS HOT SOP OHS ODD RS SCORSESE OORODSSeeRdSdenset RbdOURCECEEESCeecoe
Page
322
323
76C 1804
APPEAL
MCRAE, CORA, ET AL.
CorA MORAg, individually and on behalf of all others
similarly situated; PLANNED PARENTHOOD OF NEW
YorRK CiTy, INC.; and IRWIN B. TERAN, M.D., individ-
ually and on behalf of all others similarly situated,
PLAINTIFFS
v.
HEW
JOSEPH A. CALIFANO, JR., Secretary United States
Department of Health, Education, and Welfare,
DEFENDANT
SENATORS JAMES L. BUCKLEY and JESSE A. HELMS,
CONGRESSMAN HENRY J. HYDE and ISABELLA
A. PERNICONE, ESQ., INTERVENOR-DEFENDANTS
Cause: Violation of US Constitution as a result
of passage of H.R. 14282 containing “Hyde
Amendment”—Related case: 72 C 386.
ATTORNEYS
Related case:
GREENBAUM, WOLFE & ERNST
437 Madison Avenue
New York, NY 10022
PL8-4010
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
By: JANET BENSHOFF
22 East 40th Street
New York, N.Y. 10016
(212) 725-1222 :
eee ow! oy
(1)
a
Atty. Deft:
DaviD G. TRAGER U.S. Atty:
By: RICHARD P. Caro A.U.S.A.
For Intervenor-Defendants:
Buckley, et al.
GERALD BODELL
102 East 35th Street
New York, N.Y. 10016
For Deft.-intervenor
A. LAWRENCE WASHBURN
117 Pennsylvania Avenue
Brooklyn, N.Y. 11207
DOCKET ENTRIES
DATE PROCEEDINGS
10-1-76 Complaint filed. Summons issued.
10-1-76 Brief Amici Curiae filed.
10-1-76 By DOOLING, J-OTSC dtd 10-1-76 why a pre-
liminary injunction pursuant to Rule 65 enjoining defts
from enforcing the Hyde Amendment filed. ORDERED
that pursuant to Rule 65 the deft etc his agents, are
restrained from enforcing, in any way the Hyde Amend-
ment etc filed.
10-1-76 By DOOLING, J-Order dtd 10-1-76 extending the
tro until 10-21-76 at 10:40 am filed on document #3.
10-1-76 Pltffs’ memorandum in support of their motion for
a tro filed.
10-1-76 Affidavit of Irwin B. Teran filed.
10-5-76 Summons ret and filed/executed.
10-5-76 Letter dtd 10-1-76 to J. Dooling from Janet Benshoof
re amici brief filed.
10-5-76 Copy of administrative letter of NYS Dept. of
Social Services.
LATE PROCEEDINGS
10-13-76 Defts memo of law filed.
10-18-76 Memorandum in opposition filed.
10-18-76 By DOOLING, J Order to show cause ret 10-18-76
why an order should not be entered advancing the case
herein and consolidating pltffs’ applications for prelim-
inary injunction filed.
10-18-76 Proposed injunction filed.
10-18-76 Pltffs’ memorandum in reply~to deft’s opposition
etc filed.
10-18-76 USA’s supp. memo of law filed.
10-19-76 Amici curiae brief filed.
10-20-76 Before DOOLING J-Case called. Motion to inter-
vene on preliminary injunction argued. Decision reserved.
Hearing adj’d.
10-20-76 Affidavit in support of motion to intervene filed.
10-20-76 Proposed answer to complaint of Cora McRae
filed.
10-20-76 Affidavit in support of motion to intervene filed.
10-20-76 Affidavit in support of motion to intervene filed.
10-20-76 Memo in support of petition to intervene filed.
10-20-76 Petition of Isapella M. Pernicone filed.
10-20-76 Unsigned otsc re intervention filed.
10-20-76 By DOOLING, J Order extending TRO to 10-22-76
at 5:00 p.m.
10-20-76 Affidavit of Lewis H. Koplick filed.
10-20-76 Memo of law in support of Buckley et al to inter-
vene filed.
10-21-76 Sten. transcript dtd. 10-1-76 filed.
~
DATE PROCEEDINGS
10-21-76 Supplemental affidavits of A. Lawrence Washburn,
Jr.
10-22-76 By DOOLING J-Memo & Order dtd 10-22-76 en-
joining the deft’s from enforcing the Hyde Amendment
filed. Pitff’s McRae and Teran are entitled to maintain
this action pursuant to Rule 23(a) etc.
10-22-76 By DOOLING, J-Order dtd 10-25-76 that the appli-
cation pending appeal is denied.
10-27-76 Unsigned application pursuant to Rule 8(a) for a
stay pending appeal.
10-28-76 By DOOLING, J-ORDER TO SHOW CAUSE ret
10-29-76 for an order amend- the Order of this Court
dtd 10-22-76 filed.
10-29-76 Notice of appeal to US Supreme Court and appli-
cation for an stay of district court order 10-22-76 filed.
copies mailed.
10-29-76 Before DOOLING, J.—Case called for motion to
amend judgment. Decision reserved and hearing adjd
10-29-76 Affidavit of E. Paul & pltff’s statement in opposi-
tion to amend order filed.
10-29-76 USA’s proposed modification to order filed.
11-1-76 By DOOLING, J-Order dtd 10-29-76 denying the
motion to amend the order of 10-22-76 filed.
11-3-76 Letter dtd 11-2-76 to J. Dooling from Rhonda
Copelon with copies of papers filed by pltff opposing
the deft-intervenors application for stay.
11-19-76 Notice of appeal to the Supreme Court filed. (USA)
Copy mailed
11-22-76 Sten. transcript dtd. 10-18-76 filed.
12-6-76 Above record certified and mailed to US Supreme
Court
DATE PROCEEDINGS
12-15-76 HEW’s notice of appeal filed. Copy mailed to the
C of A.
12-17-76 Notice of appeal to the Federal Court of Appeals
for the Second Circuit filed. $250.00 deposited in the
registry of the Court (in lieu of bond) by A. Lawrence
Washburn, Jr. atty for the Appellant-Intervenor Isabe;;
a M. Pernicone. Copy mailed to the C of A.
12-22-76 Civil appeal scheduling order filed.
1-5-77 Sten transcript dtd 10-29-76 filed.
7-25-77 Copy of letter of Clerk, Supreme Court dtd 7-20-77
filed re: application for a stay of execution. ld
7-25-77 Copy of opinion of Supreme Court filed (annexed
to doc. #46) re: Justice Marshall has decided not to act
on the application for a stay of execution of the Sup Ct’s
vacatur of the district court’s injunction. ld
7-27-17 Unsigned ORDER TO SHOW CAUSE-In Re: motion
for temporary restraining order & supporting affidavits,
filed. by pltff.
7-27-77 Affidavits respecting survey of state reimbursement
policies filed by pltff.
7-27-77 Affidavits of state officials respecting reimbursement
policies filed by pltff.
7-27-77 Unsigned ORDER TO SHOW CAUSE respecting in-
tervention and amendment of the complaint, and affi-
davits in support filed by pltff.
7-27-77 Amended complaint filed by pltff.
7-27-77 Proposed Intervenor complaint, filed by pltff.
7-27-77 AFFIDAVITS of intervenors, also supporting mo-
tion for temporary restraining order filed by pltff.
7-27-77 MEMORANDUM OF LAW in support of motion to
intervene and to amend the complaint filed by pltff.
DATE PROCEEDINGS
7-27-77 Letter of AUSA Edward S. Rudofsky to DOOLING,
J. dtd 7/27/77. IN RE: Opposing entry of temporary
restraining order, filed.
7-28-77 Certified copy of Judgment from SUPREME COURT
of U.S. that judgment of U.S. District Court in this cause
be and is hereby vacated, and that this cause be & is
hereby remanded tc the U.S. District Court for the EAST.
DIST. of NY for further consideration in light of Maher
-v- ROE 432 U.S. & Beal -v- Doe 482 U.S. (1977) filed.
7-28-77 PIltff’s MEMORANDUM in support of motion for a
temporary restraining order. filed.
7-28-77 Before DOOLING, —-Case called. Motion for tro
argued, and granted. Hearing on motion for preliminary
injunction scheduled for 8-3-77. Motion for interventions
argued. Motion granted. Motion for amended complaint,
defts not consenting motion granted.
7-28-77 By DOOLING, J—Order to show cause I dtd 7-28-77
returnable on 8-3-77 why an order should not be entered
temporarily restraining effectuation of the Hyde Amend-
ments pending hearing on pltffs’ motion for a preliminary
injunction etc filed. ORDERED that deft shall continue
to pay the federal share in accordance with procedures
my to enactment of the Hyde Amendment filed. See
#47.
7-28-77 Affidavit of Ellen Leitzer filed. mg
7-28-77 Affidavit of Dr. David Bingham filed. mg
7-28-77 Copy of letter dtd 7-2-77 to Janet Benshoof from
Leon Ginsburg re expenditures of state monies for abor-
tions filed. mg
7-28-77 Affidavit of C. Tietze filed. mg
7-29-77 Pitff’s first notice to produce documents pursuant to
Rule 34 of F.R.C.P., filed.
8-2-7 Cert. copy of judgment from Supreme Court dis-
missing the appeal. (acknowledgement mailed.)
DATE PROCEEDINGS
8-83-77 Deft’s memorandum in opposition to pltff’s motion
for preliminary injunction filed. mg
8-4-77 By DOOLING,, J-Order to show cause why ab order
should not be made vaacting the tro entered 17-28-77
filed. mg
8-4-77 By DOOLING J-Order to show cause for leave to
file a second amended complaint ret 8-3-77 filed. mg
8-83-77 Before DOOLING, J.—Case called. Pltff Health &
Hospitals Corp moves to amend the complaint. Decision
reserved. Deft intervenors moves to reconsider the vaca-
tion of the TRO. Decision reserved. Deft intervenors move
to quash the hearing of pltffs evidence. Motion denied
with leave to renew. Deft moves that pltff be required to
make offers of proof of prior to testimony in order to
the scope of the hearing. Motion denied.
8-4-77 By DOOLING, J.—Order dtd 8-4-77 vacating TRO
filed on document +47.
8-4-77 By DOOLING, J.—Order dtd 8-4-77 vacating TRO
filed on document +10.
8-4-77 Unsigned order to show cause filed.
8-4-77 By DOOLING, J.—Order to show cause to intervene
filed on document +67.
8-5-77 PItff’s second notice to produce filed.
8-5-77 Letter of 7-26-77 to Judge Dooling from Rhonda
Copelon filed.
8-5-77 Pltff’s reply in support of restraining order filed.
8-5-77 Affidavit of Alexander Sharp filed.
8-5-77 Intervenor defts’ memo of law in support of applica-
tion to vacate tro and in opposition to pltff’s application
for preliminary injunction filed.
8-5-77 By DOOLING, J.-Order dated 8-3-77 re: not signing
of order to show cause filed.
DATE PROCEEDINGS
8-5-77 By DOOLING, J.-Order dated 8-4-77 denying temo-
rary restraining order filed.
8-4-77 Before DOOLING, J.—case called—motion to dis-
solve T.R.O. reviewed pltff moves for T.R.O.—pltff moves
to allow as pltff-intervenors Mary Doe and David Bing-
ham—motion granted—motion to dissolve T.R.O. granted
—T.R.O. is vacated—motion to extend TRO denied—
hearing adjd without date
8-5-77 Stenographer’s transcript dated 8-3-77 filed.
8-5-77 Stenographer’s transcript dated 8-4-77 filed.
8-5-77 Intervenors-defts supplemental memorandum filed.
8-5-77 Memorandum in support of intervening-deft motion
in liminie to exclude oral testimony etc. filed
8-8-77 Before DOOLING, J.—Case called. Pltff’s proposed
notice argued. Proposed notice not signed. Discovery mo-
tion argued. Ruling on the record. mm
8-9-77 Unsigned proposed notice filed. mm
8-10-77 Stenographer’s transcript dtd 8-8-77 filed. mm
8-11-77 Before DOOLING, J.—Case called. Hearing resumed.
Hearing continued to 9-9-77. mm
8-12-77 Memorandum of law in support of motion to inter-
vene filed. mm
8-12-77 Proposed intervenor complaint filed. mm
8-12-77 Stenographer’s transcript dtd 7-28-77 filed. mm
8-12-77 Stenopgrapher’s Transcript dated 8/11/77 filed.
8-23-77 Pltffs first set of interrogatories to deft filed. tk
8-25-77 Memo filed to all counsel from Art Leavens dtd
8/25/77, re: calling of witnesses in Sept. tk
8-25-77 Copy of memo filed to all counsel from Art Leavens
dtd 8/25/77, re: calling of witnesses in Sept. tk
anwar le,
DATE PROCEEDINGS
8-29-77 Affidavit of Frederick Jaffe filed re based on the
Institute’s studies of the impact of the withdrawal or
restricting of Medicaid reimbursement for aborticn. jilj
9-1-77 Before DOOLING, J.—Case called. Hearing resumed.
Trial continued to 9/6/77.
9-6-77 AFFIDAVIT of Alexander E. Sharp, II, Commis-
sioner of the Massachusetts Department of Public Wel-
fare, filed. (THIS DOCUMENT IS THE ORIGINAL of
Document #71)
9-6-77 Before Dooling, J case called-hearing resumed-hearing
contd to 9/7/77.
9-7-77 Before Dooling, J hearing resumed-hearing contd to
9/19/77. jlj
9-9-77 Stenographers transcript filed dtd 9/7/77. tk
9-20-77 Before DOOLING J.—Case called. Hearing resumed.
Hearing continued to 9/23/77. tk
9-23-77 Before Dooling, J—case called—hearing resumed—
hearding contd to 9/26/77.
9-26-77 Before DOOLING,J.—Case called. Hearing resumed.
Hearing continued to 9-28-77. mm
9-28-77 Before DOOLING, J.—Case called. Hearing re
sumed. Hearing cont’d to 9-30-77.
9-30-77 Before DOOLING J.—Case called. Hearing resumed.
Hearing continued to Oct. 4, 1977. tk
10-4-77 Before Dooling, J—case called—hearing resumed—
trial contd to 10/5/77.
10-5-77 Before Dooling, J—case called—hearing resumed—
trial contd to 10/7/77.
10-6-77 Copy of letter filed to Mr. Copelon from Michael
Rodak that the Court (Supreme Court) denied the peti-
tion for rehearing in the above action. tk
10-11-77 Before Dooling, J—case called—hearing resumed—
trial contd to 10/12/77.
10
DATE PROCEEDINGS
10-12-77 Before DOOLING, J. Case called. Hearing resumed.
Hearing continued to 10/14/77.
10-14-77 Before DOOLING, J. Case called. Hearing re-
sumed. Hearing adjourned without date.
10-17-77 Stenographers transcript dtd 10/14/77 filed. tk
11-29-77 Notice to take deposition upon oral exam of Con-
nie J. Downey, on 12/2/77 @ 9:00 AM at EDNY, filed.
jm
11-30-77 Notice to take deposition upon oral examination of
Peter Schuck, Dep assist HEW on 12/6/77 @ 1 PM in
EDNY, filed. jm
12-2-77 Before DOOLING J—Motion for protective order.
Ordered that no depositions at Downey or Schuck be
taken but that documents be produced. tk
12-8-77 By Dooling, J—Order dtd 12/8/77 directing clerk
to withdraw from Registry sum of Two Hundred Fifty
($250) dollars and pay same to A.L. Washburn, Jr. as
and for complete refund of moneys previously deposited
in lieu of bond, filed. jm
12-27-77 Defts supp. answer to pltff’s interroga. +3 filed. fy
1-6-78 Before DOOLING, J.—Case called for hearing, motion
to amend, no opposition, motion granted
1-9-78 Piltffs amended complaint filed.
1-9-78 Affidavit of Jane E. Hodgson filed. tk
1-9-78 Pltff—intervenors affidavit by Theressa Hoover filed.
tk
1-25-78 Deft’s answer to amended complaint, filed. jm
2-2-78 Letter dtd 1/31/78 of R. Copelon to Dooling, J.—
filed. jm
2-9-78 Motion of Catholic League for Religious and Civil
Rights etc., to intervene as party defts filed. fy
ee eo oe ee ee eee! Te om TP Ne AL
11
DATE PROCEEDINGS
2-9-78 Before DOOLING, J.—Case called for hearing, hear-
ing resumed and cont to 2-14-78.
2-14-78 PItff’s memo of law in opposition to Catholic League
to intervene filed. fy
2-15-78 Before Dooling, J.—Case called. Hearing resumed.
Hearing adjounred to 2/16/78. jm
2-14-78 Before DOOLING, J. Case called. Hearing resumed.
MOTION by CATHOLIC LEAGUE, et al to intervene
as party-defts-ARGUED. MOTION DENIED except to
the extend that petitioners may appeal as amici curiae.
(SEE ORDER ON BACK OF MOTION PAPERS)
Hearing adjourned to 2/15/78.
2-17-78 Before DOOLING, J—Case called. Hearing resumed.
Hearing adj’d to 2-21-78. mg
2-23-78 Before DOOLING,J—Case called. Hearing resumed.
Adj’d to 3-2-78. mg
3-2-78 Before DOOLING,J—Case called. Hearing resumed.
Intervenor-deft’s motion to strike the testimony of cer-
tain of pltff’s witnesses argued and denied. Hearing
adj’d to 3-8-78. mg
3-7-78 Notice to take deposition of persons listed on date
given, filed. (of W. Sweeney, of Rev. P.V. Ahern, of
C.J. Tobin, Jr.) :
3-7-78 Sten. transcript dtd 3-2-78 filed. mg
3-10-78 Before Dooling, J.—Case called. Hearing resumed.
Adjourned w/o date. jm
3-16-78 Pltffs second set of interroga. to deft filed. fy
3-28-78 Before Dooling, J——Case called. All parties present.
Continued to 3/29/78 @ 10 AM. jm
3-29-78 Before DOOLING, J—Case called. Hearing resumed.
Cont’d to 3-30-78. mg
12
DATE PROCEEDINGS
3-30-78 Before DOOLING, J.—Case called for hearing, hear-
ing resumed, hearing cont to 3-31-78.
3-31-78 Before DOOLING, J.—Case called for hearing, hear-
ing resumed, hearing adjd without date
4-20-78 Deft’s notice of motion returnable 4-21-78 for pro-
tective order and memorandum of law in support of deft’s
motion for protective orders. km
4-21-78 Before DOOLING, J.—Case called, Parties present.
H.E.W.’s MOtion for protective order argued. PItff’s
motion for the introduction of certain documents into
evidence—argued. Parties to confer and report to court
4/28/78. Deft H.E.W. to answer interrogatories on or
before May 15, 1978. Order signed. Adjourned without
a date. Is
5-2-78 Stipulation between counsel for the pltffs and deft,
that documents identified as Exhibits 200-256 and 260-
266, will be admitted to evidence pursuant to certain
terms. (see order) filed. Is
5-2-78 letter= dtd 5/1/78, from J. BENSHOFF, counsel for
Pltff, to R. CARO, A.U.S.A.. filed. 1s
5-2-78 Letter dtd 5/1/78, from Jill Laurie Goodman, to Mr.
CARO, A.U.S.A., filed. ls
5-2-78 PIitff’s Interrogatories and notice to produce (midi-
fied) , filed. Is
5-2-78 Janet Benshoof’s Affidavit in support of Pltff’s pro-
posed Exhibits No. 258 and 259, filed. ls
5-2-78 Pitff’s request that Deft JOSEPH CALIFANO admit
for purposes of this action only the truth of certain
facts, filed. ls
5-22-78 Letter from A. Lawrence Washburn dated 5/19/78
filed
5-22-78 Answer to pltff’s second notice to admit (Hyde)
filed. sg
se
- ne BRR etis cet A SRSA
Sihichaaoanitis
13
DATE PROCEEDINGS
5-22-78 Answer to pltff’s first notice to admit and addendum
filed sg
6-2-78 Stipulation agreed by and between the parties, that
certain affidavits shall be admitted into evidence. filed. Is
6-9-78 Deft’s objections and answer to pltffs’ motion to ad-
mit, filed. jm
6-23-78 Before DOOLING, J.—Case called for hearing, hear-
ing resumed, hearing adjd without date. fy
6-27-78 By DOOLING, J.—Privacy Act Order dtd 6-27-78
that the deft disclose information pertaining to various
individuals who may be identifiable from said informa-
tion, or other info readily accessible, contained in cer-
tain agency files, to the extent disclosures of such info
is necessary to answer and comply with pltffs’ third
interrogatories and Notice to produce in good faith
filed. km
6-27-78 Answer to pltffs’ third interrogatories and Notice
to Produce, filed. km
6-29-78 Answer to pltff’s second (modified) interrogatories
Nos. 5-7 and notice to produce. Filed. Is
7-19-78 Certified copy of order received from court of ap-
peals and filed dismissing appeal
7-31-78 Letter dtd 7/26/68, from Richard Caro to Judge
Dooling. In re: annexed please find copy of letter from
General counsel office. Filed. ls
8-3-78 Pltffs first notice to admit filed. fy
8-3-78 Pltffs second notice to admit filed. fy
8-3-78 Pltffs first notice to admit, addendum I filed. fy
8-2-78 Before DOOLING, J.—Case called for hearing on
motion to introduce evidence of pltff, all parties present,
Hearing ordered and begun, hearing contd to 8-3-78. fy
14
DATE PROCEEDINGS
8-3-78 Before DOOLING, J.—Case called, for hearing on
motion to introduce evidence of Pltff. Hearing resumed.
Hearing concluded. Case adjourned to 8/28/78, at 10:00
for Deft-intervenors case. Deft’s briefs due by 10/2/78.
8-4-78 PItff’s second notice of admit. filed. ls
8-14-78 Stenographers transcript filed dtd. 8-2-78 jc
8-14-78 Stenographers transcript filed dtd. 8-3-78 jc
8-16-78 Pitffs statement of facts on issues other than re-
ligion filed.
8-16-78 Notice of motion ret. 8-28-78 for leave to submit
brief amicus curiae filed. fy
8-18-78 Notice of Motion for leave to file brief of new legal
defense and education fund, as amicus curiae, returnable
on August 28, 1978, at 10:00 am. Filed. ls
8-18-78 Motion of American Academy of Child Psychiatry
to file a brief as amicus curiae filed. fy
8-21-78 Supplement to deft’s answers to pltff’s first & second
interrogatories filed. mg
8-23-78 Affidavits (2) of service, filed. ls
8-28-78 Before DOOLING, J.—Case called for motions to
file briefs amicus curiae granted, briefing schedule set,
oral argument on 11-9-78. fy
8-29-78 By DOOLING, J.—Order dtd. 8-28-78 granting mo-
tion of American Orthopsychiatriac Ass., to file amicus
curiae brief by 10-20-78 filed. on back of doc. 139. fy
8-29-78 Notice of motion of American Ortho to file amicus
curiae brief filed. fy
8-28-78 By DOOLING, J.—Order dtd. 8-28-78 granting mo-
tion of Religiuos organizations to file amicus curiae brief
by 10-20-78 filed on back of doc. +133. fy
8-29-78 By DOOLING, J.—Order dtd. 8-28-78 granting mo-
tion of NOW LDEF to file an amicus curiae brief by
10-20-78 filed. on back of doc #184. fy
a os ee Bh tay
* Ne ede
15
DATE PROCEEDINGS
8-29-78 By DOOLING, J.—Order dtd. 8-28-78 graing mo-
tion of J. Heintz & M. Rogers to appear pro hoc vice
filed on doc. #185. fy
8-29-78 By DOOLING, J.—Order dtd. 8-28-78 granting mo-
tion of American Academy of Child Psychiatry to file
an amicus curiae brief by 10-20-78 filed on doc. #135. fy
8-30-78 Sten. transcript dtd. 12-2-77 filed. fy
9-5-78 Copy of Memorandum of Law of pltff. Filed. ls
9-5-78 Notice to take deposition of H. Hyde filed. fy
9-8-78 Second supplement to defts answers to pltffs first,
2nd interrs and notice to produce, filed. jm
9-6-78 Before Dooling, J.—Case called, all sides present,
hearing concluded. jm
9-11-78 Sten. transcript dtd. 9-6-78 filed. fy
9-18-78 Statement of facts on issues other than religion.
Filed. ls
9-18-78 Brief of Amici Curiae in support of pltffs’ complaint
filed rh
9-18-78 Brief of Now Legal Defense & Education Fund as
Amicus Curiae in support of Pltffs filed rh
9-19-78 Letter dtd. 9/14/78 from Rhonda Copelon to Hon.
John F. Dolling, Jr. together with attchmt re continued
authorization & appropriations for the U.S. Commission
on Civil Rights filed rh
9-21-78 Deft’s Second Supplement to Deft’s Answers to
Pltffs’ First, Second, & Second (Modified) Interrogatories
& Notices to Produce: Continued filed rh
9-25-78 Pltffs’ Memorandum of Law on the Vagueness Claim
filed. sk
10-3-78 Pltff’s memorandum in support of a default against
intervenor-deft’s. Filed. ls
16
DATE PROCEEDINGS
10-38-78 Notice of Motion for entry of default judgment,
returnable on October 6, 1978, at 9:30 am. Filed. ls
10-11-78 Affidavits of LAWRENCE WASHBURN, in oppo-
sition to motion for entry of default judgment against
interevnor-deft’s. Filed. Is
10-11-78 PIltff’s first amendment brief, filed. ls
10-11-78 Affidavit of service of brief, filed. ls
10-27-78 Notice of motion for leave to file brief Amici
- Curiae, no ret date, filed, jm
10-27-78 BRIEF of AMICUS CURIAE of American Acad-
emy of Child Psychiatry, filed.
11-3-78 By DOOLING, J.—Order dtd. 11-2-78 granting mo-
tion of Committee For Abortion Rights for leave to file
brief amici curiae etc., filed on back of doc. #156. fy
11-14-78 Post-trial memo of law of Pernicone filed. fy
11-14-78 Intervenors-defts reply memo of law to pltffs first
amendment brief filed. fy
11-14-78 Brief of Amicus curiae filed. fy
11-14-78 Intervenors memo of law on title XIX of the
Social Security Act filed. fy
11-16-78 Intervenors’ Memorandum on Title XIX of the
Social Security Act, Equal Protection, Due Process &
Vagueness Claims. mw
11-16-78 Affidavits of service of “Defendant’s Post-Trial
Memorandum of Points & Authorities” filed. (AUSA
Richard P. Caro). mw
11-16-78 Affidavit of service of Thomas J. Marzen filed. mw
11-16-78 Deft’s Post Trial Memorandum filed. mw
11-16-78 Brief of Amici Curiae filed. mw
11-30-78 Pltffs’ Reply to Defts’ Post Trial Memoranda filed
rh
17
DATE PROCEEDINGS
12-1-78 Letter dtd. 11-29-78 from J. Benshoof to J. Dooling
with opinion attached from Eastern District of La.
filed. fy
12-4-78 Before DOOLING, J.—Case called for hearing on
the law, post trial hearing ordered and begu i
concluded. fy ae
12-5-78 By DOOLING, J.—Order dtd. 11-28-78 amending
the amended complaint filed. fy
12-8-78 Sten. transcript dtd. 12-4-78 filed. fy
12-13-78 Letter dtd. 12-12-78 from R. Caro AUSA to J.
Dooling re: HEW medicaid regulations filed. fy
1-17-79 Letter (copy) dated 1/12/79 from Edward R.
Korman, U.S.-Atty by: Richard P. Caro, Assistant U.S.
Atty, re Ms. Copelan’s failure to date to file a motion
to have the action recertified as a class action and in-
quiring of Ms. Copelan as to her present position re class
certification in order that it can be decided if any modi-
fication in the federal deft’s position will be made filed rh
1-24-79 Letter dated 12/18/78 from Jack Brooks to Mr.
Lewis Orgel, Clerk stating that pursuant to House Reso-
lution 420, 95th Congress, 1st Session (1977), the House
Select Committee on Congressional Operations is required
to identify any court proceeding or action of vital in-
terest to Congress and to bring such action to the atten-
tion of the House of Representatives—one such case is
Buckley v. McRae +76C 1804 and requesting copies of
documents #98, 101, 108, 109, 117, 118, 120, 124, 141, 142,
145, 150, 151, 154, 158, 161, 162, 165, 166, 167 and 169
be sent to House Select Committee on Congressional
Operations, 1628 Longworth House Office Building
Washington, D.C. 20515 filed rh
1-29-79. Sten. transcripts dtd. 9-1-77, 9-6-7, 9-19-77, 9-20-77
9-26-17, 9-28-77, 9-80-77, 10-4-77, 105-77, 10-11-77.
10-12-77, 2-9-78, 2-14-78, 2-15-78, 2-16-78, 2-17-78, 2.23.
78, 3-8-78, 3-10-78, 8-28-78, 3-29-78, 330-78, 3.31.78
and 4-21-78 filed. fy
18
DATE PROCEEDINGS
1-29-79 Document stipulation #II filed. fy
1-29-78 Documents stipulation III filed. fy
1-29-79 Documents stipulation #IV filed. fy
1-30-79 Sten. transcript dtd. 10-29-76 filed. fy
1-30-79 Ltr dtd 1/24/79 fm Janet Benshoof to J udge Dooling
re: class action certification, filed. mw
1-30-79 By DOOLING, J—-MEMORANDUM & ORDER
dtd 1/29/79, that pltffs’ motion for an order directing
entry of a default judgment against Intervenor-Defts
denied. . . . The action has to this date in fact been main-
tained as a class action & should continue to be so main-
tained, filed. (See MEMO & ORDER for details). mw
2-2-79 Stenographers transcript dtd 6/23/78. Filed. ls
2-5-79 Letter dtd. 2-2-79 from R. Copelon to all counsel re:
film showing on 2-8-79 filed. fy
2-8-79 Before DOOLING, J.—Case called for conf and conf
held. fy
2-8-79 Letter dtd. 2-6-79 from R. Copelon to J. Dooling re:
attached are certified and complete copies of exhibits
#63, 79, 83 & 84 filed. fy
2-8-79 Renewed motion of Catholic League for Religious &
Civil Rights to intervene filed. fy
2-22-79 Letter dtd 2/20/79, from Richard P. Caro to Judge
Dooling. In re: the deft has no objection to the inter-
vention of the Catholic League for Religious and Civil
rights. Filed. ls
8-14-79 Deft HEW’s supp. memo of law of points & authori-
ties filed. fy
3-21-79 Letter dtd. 8-21-79 from G. Bodell to J. Dooling
with copies of HEW statistics filed. fy
3-23-79 Sten. transcript dtd. 2-8-79 filed. fy
19
DATE PROCEEDINGS
4-16-79 Two letters filed dtd 4-12-79 & 4-19-79. fc
5-11-79 Letter dtd. 5-7-79 from R. Caro AUSA to J. Dooling
filed. fy
8-1-79 Letter dtd. 7-31-79 from R. Copelon to J. Dooling
with copies of state court decisions and copy of a com-
plaint in another action attached, filed. fy
9-12-79 Letter dtd 9-6-79 to all counsel from AUSA Richard
Caro re agreement of all counsel 1977 CDC Abortion
Surveillance Report etc. be placed into evidence subject
to same terms previously stipulated filed.
1-15-80 By DOOLING, J.—Memo and order for judgment
that judgment must be entered for pltffs, that pltffs and
pltffs-intervenors are entitled to maintain this action as a
class action on behalf of medicaid-eligible pregnant
women desiring and denied medicaid abortions because
of the federal legislation restricting abortion funding etc.,
see memo and order, filed. fy
1-15-80 By DOOLING, J.—Annex to memo and order dtd.
1-15-80 filed. fy
1-15-80 Judgment dtd. 1-15-80 approved by J. Dooling in
favor of pltffs etc., see judgment, filed. fy
1-15-80 By DOOLING, J.—Order dtd. 1-15-80 staying en-
forcement of judgment for 30 days from 1-15-30, filed. fy
1-15-80 By DOOLING, J.—Order amending complaint filed
on 1-9-78 etc., see order, filed. fy
1-15-80 Notice of appeal filed by USA to Supreme Court.
copies mailed to parties & Sup. Ct., filed. fy
1-28-80 Notice of appeal filed by intervenor-defts. (rec. 1-25-
80). copy mailed to Sup. Ct. fy
1-28-80 Deft-intervenors’ application for extension of stay
pending appeal filed. fy
20
DATE PROCEEDINGS
1-31-80 Notice of motion ret. 2-4-80 with memo of law for
an extension of the stay pending final determination
of the appeal by the US Supreme Court filed. fy
2-4-80 Pltffs notice of motion ret. 2-4-80 with memo of law
to clarify the judgment and in opposition to defts motion
for a stay filed. fy
2-4-80 Defts-intervenors’s memo of law in support of a
limited extension of the stay filed. fy
2-4-80 Before DOOLING, J.—Case called for civil motio.
Defts motion for a stay of the judgment pending appeal
argued and denied. Pltffs motion for an order to clarify
the judgment argued and denied. fy
2-4-80 By DOOLING, J.—Order that pltffs motion to clarify
the judgment etc., is denied filed. fy
2-4-80 By DOOLING, J.—Order that the motions for an
order extending the stay entered 1-15-80 are in all re-
spects denied filed. fy
2-13-80 Sten. transcript dtd. 2-4-80 filed. fy
2-14-80 By DOOLING, J.—Order that exhibits 300-454 and
456-471 are received in evidence etc., see order, filed. fy
2-19-80 Certificed copy of order from Supreme Court staying
judgment of district court pending further order, filed. fy
2-25-80 Certified copy of order from Supreme Court deny-
ing application for stay and that probable jurisdiction
is noted, etc., filed. fy
2-28-80 Copy of letter dtd. 2-27-80 from R. Copelon to R.
Caro, AUSA filed. fy
21
76C 1805
APPEAL
NEW YORK CITY HEALTH & HOSPITALS CORP.
NEW YORK CITY HEALTH & HOSPITALS CORP.
and THE CITY OF NEW YORK, PLAINTIFFS
v.
HEW
F. DAVID MATHEWS, SECRETARY OF THE DEPARTMENT
OF HEALTH, EDUCATION AND WELFARE, DEFENDANT
SENATOR JAMES L. BUCKLEY and JESSE A. HELMS,
CONGRESSMAN HENRY J. HYDE, and ISABELLA
M. PERNICONE, ESQ., INTERVENORS-DEFENDANTS
Cause: Civil action for injunctive and declara-
tory relief to restrain the enforcement of the
Hyde Amendment to HR 14232 Bill prohibiting
federal funds for reimbursement of Medicaid
abortions. Related case 76C 1804.
ATTORNEYS
For Pitff:
W. BERNARD RICHLAND
Corporation Counsel of the
City of New York
Municipal Bldg.
NYC 10007
566-5500/2197
22
DOCKET ENTRIES
DATE PROCEEDINGS
10-1-76 Complaint filed. Summons issued.
10-1-76 By DOOLING, J—OTSC dtd 10-1-76 why a pre
liminary injunction pursuant to Rule 65 enjoining defts
from enforcing the Hyde Amendment filed. ORDERED
that pursuant to Rule 65 the deft, his agents, etc are
restrained from enforcing, in any way the Hyde Amend-
ment etc filed.
10-1-76 By DOOLING, J—Order dtd 10-1-76 extending the
tro until 10-21-76 at 10:40 am filed on document +2.
10-1-76 Pltfi’s memorandum in support of tro filed.
10-5-76 Summons ret and filed/executed.
10-13-76 Defts memo of law filed in 76-C-1805.
10-18-76 Memorandum in opposition filed ib 76C 1804.
(USA)
10-18-76 PIltff’s memo in support of its motion for a pre-
liminary injunction and to consolidate with hearing on
permanent injunction.
10-18-76 Affidavit of Steven Goldberg filed.
10-18-76 By DOOLING, J—ORDER TO SHOW CAUSE
ret 10-18-76 why an order should not be entered advanc-
ing the case herein and consolidating pltffs’ applications
for preliminary and permanent injunction filed in 76C
1804.
10-18-76 Proposed injunction filed. See 76C 1804.
10-18-76 USA’s supp memo of law filed. in 76-C-1804.
10-19-76 Before DOOLING J—Case called. Motion to inter-
vene on preliminary injunction argued. Decision reserved.
Hearing adj’d.
10-20-76 Affidavit in support of motion to intervene filed in
76C 1804.
23
DATE PROCEEDINGS
10-20-76 Affidavit in support of motion to intervene filed in
76C 1804.
10-20-76 Affidavit in support of motion to intervene filed in
76C 1804.
10-20-76 Memorandum in support of petition of I. M. Per-
nicone filed in 76C 1804.
10-20-76 Petition of I. M. Pernicone filed in 76C 1804.
10-20-76 By DOOLING J—Order dtd 10-20-76 extending
tro to 10-22-76 at 5:00 riled in 76C 1804.
10-20-76 Unsigned order to show cause re intervention filed.
See 76C 1804.
10-20-76 Pltff’s memo of law in opposition to motion for
intervention by 2 Senators & 1 Congressman filed.
10-20-76 Memo of law in behalf of Buckley et al to inter- -
vene filed, in 76-C-1804 filed
10-20-76 Proposed answer to complaint of Buckley et al
filed.
10-21-76 Sten. transcript dtd. 10-1-76 filed in 76-C-1804.
10-21-76 Supplemental affidavits of A. Lawrence Washburn
filed.
10-22-76 By DOOLING, J—Memo & Order dtd 10-22-76 en-
joining the defts from enforcing the Hyde Amendment
filed. Pitff’s McRae & Teran are entitled to maintain this
action pursuant to Rule 23(a) See 76C 1904.
10-22-76 By DOOLING J—Order dtd 10-25-76 that the appli-
cation for a stay pending appeal is denied filed in 76C
1804.
10-20-76 Letter dtd. 10-26-76 from S. Goldberg to Judge
Dooling filed.
10-29-76 Notice of appeal to US Supreme Court and appli-
cation for an stay of district court order dtd. 10-22-76
filed in 76-C-1804.
ee eee
6 UMS BET ae eT Time ae
24
DATE PROCEEDINGS
10-29-76 Before DOOLING, J.—Case called for motion to
amend judgment. Decision reserved and hearing adjd.
10-29-76 USA’s proposed modification order filed. in 76-C-
1804.
11-1-76 By DOOLING, J—Order dtd 10-29-76 denying the
motion to amend the order of 10-22-76 filed. See 76
1804.
11-19-76 Notice of appeal to Supreme Court filed in 76C
1804. (USA).
11-22-76 Sten. transcript dtd. 10-18-76 filed in 76-C-1804.
12-6-76 Above record certified and mailed to US Supreme
Court
12-15-76 HEW’s notice of appeal filed in 76C1804. Copy
mailed to the C of A.
12-17-76 Notice of appeal to the Federal Court of Appeals
for the Second Circuit filed in 76C 1804. copy mailed to
the C of A.
12-22-76 Civil appeal scheduling order filed in 76C1804.
1-5-77 Sten. transcript dtd 10-29-76 filed in 76C 1804.
7-25-77 Copy of letter of Clerk, Sul4reme court dtd 7-20-77
filed in 76 C 1804 re: application for stay of execution.
ld
7-25-77 Copy of opinion of Supreme Court filed (annesed to
doc. #46 in 76 C 1804) re: Justice Marshall has decided
not to act on the application for a stay of execution of
the Sup Ct’s vacatur of the district court’s injunction. ld
7-27-77 Unsigned ORDER TO SHOW CAUSE FOR A PRE-
LIMINARY INJUNCTION and a temporary restraining
order filed. by atty’s for pltff.
7-27-77 Amended verified complaint filed by pltff.
25
DATE PROCEEDINGS
7-28-77 By DOOLING, J—Order to show cause ret 8-3-77
why an order should not be made enjoining the dedt
from refusing to pay matching funds for abortions filed.
ORDERED that the deft and his agents are temporarily
restrained from refusing to pay matching funds etc
pending a determination by this Court of pltff’s applica-
tion filed. mg See document #10.
7-28-77 Request for productions of documents filed. mg
8-1-77 Record on appeal received from Supreme Court USA.
Acknowledgment mailed to Clerk for receipt. mm
8-2-77 Cert. copy of judgment from Supreme Court dis-
missing the appeal filed. Acknowledgment mailed. See
76C 1804. mg.
8-3-77 Deft’s memorandum in opposition to pltff’s motion
for preliminary injunction filed. See 76C 1804. mg
8-4-77 By DOOLING, J—Order to show cause why an order
should not be made vacating the tro entered 7-28-77 filed
in 76C 1804. mg
8-4-77 By DOOLING, J—Order to show cause for leave to
file a second amended complaint ret 8-3-77 filed in 76C
1804. mg
8-3-77 Before DOOLING, J.—Case called. Pltff Health &
Hospitals Corp moves to amend the complaint. Decision
reserved. Deft intervenors moves to reconsider the va-
cation of the TRO. Decision reserved. Deft intervenors
moes to quash the hearing of pltffs evidence. Motion de-
nied with leave to renew. Deft moves that pltff be re-
quired to make offers of proof of prior to testimony in
order to narrow the scope of the hearing. Motion denied.
mm
8-4-77 Before DOOLING, J.—case called—motion to dissolve
TRO reviewed—pltff moves for TRO-pltff moves to allow
as pltff intervenors Mary Doe and David Bingham—
motion granted—motion to dissolve TRO granted—TRO
vacated—motion to extend TRO denied—hearing adjd
without date
a a ee ee ee Lee
ee ee ee eee ee
26
DATE PROCEEDINGS
8-5-77 Stenographer’s transcript dated 8-3-77 filed in 76C
1804
8-5-77 Stenographer’s transcript dated 8-4-77 filed in 76C
1804
8-5-77 Intervenor deft supplemental memorandum filed (in
76C1804)
8-5-77 Memorandum in support of intervening-deft in
liminie to exclude oral testimony etc. filed (in 76C1804)
8-8-77 Before DOOLING, J.—Case called. Pltff’s proposed
notice argued. Proposed notice not signed. Discovery mo-
tion argued. Ruling on the record. mm
8-9-77 Unsigned proposed notice filed in 76C-1804. mm
8-11-77 Before DOOLING, J —Case called. Hearing resumed.
Hearing continued to 9-9-77. mm
8-31-77 Copy of letter of AUSA Rudofsky to Dooling, J
dtd 8/30/77 filed re in reference to several inquiries made
to chambers etc. jlj
9-6-77 Before Dooling, J—case called—hearing resumed—
hearing contd to 9/7/77. |
9-7-77 Before Dooling, J—hearing resumed—hearing contd
to 9/19/77. jlj
9-9-77 Stengraphers transcript filed dated 9/7/77. (filed
in 76 C 1804)
9-20-77 Before DOOLING J.—Case called. Hearing resumed.
Hearing continued to 9/23/77 tk
9-23-77 Before Dooling, J—case called—hearing resumed—
hearing contd to 9/26/77.
9-26-77 Before DOOLING J—Case called. Hearing resumed.
Hearing continued to 9-28-77. mm
9-28-77 Before DOOLING, J.—Case called. Hearing resumed
& cont’d to 9-30-77. 1d
ee es ee all ote rate Bd ICR ALA aR ON wei 0
Ee eae ee ee CT ee te
27
DATE PROCEEDINGS
9-30-77 Before DOOLING J—Case called. Hearing resumed.
Hearing continued to 10/4/77. tk
10-11-77 Before Dooling, J—case called—hearing resumed—
trial contd to 10/12/77.
10-12-77 Before DOOLING, J.—Case called. Hearing re-
sumed. Hearing continued to 10/14/77.
10-14-77 Before DOOLING, J.—Case called. Hearing re-
sumed. Hearing adjourned without date.
12-2-77 Before DOOLING J—Motion for protective order.
Ordered that no depositions at Downey or Schuck be
taken but that documents be produced. tk
12-8-77 By Dooling, J—Order dtd 12/8/77 directing clerk
to withdraw from Registry sum of Two Hundred Fifty
($250) dollars and pay same to A.L. Washburn, Jr. as
and for complete refund to moneys previously deposited
in lieu of bond, filed. jm (see +96 of 76-C-1804)
12-27-77 PItff’s supp. answer to pltff’s interroga. +3 filed in
76-C-1804 filed. fy
1-6-78 Before DOOLING, J.—Case called for hearing, mo-
tion to amend, no opposition, motion granted
2-9-78 Before DOOLING, J.—Case called for hearing and
hearing resumed and cont to 2-14-78
2-14-78 Before DOOLING, J. Case called. Hearing resumed.
MOTION by CATHOLIC LEAGUE, et al to intervene
as party-defts ARGUED. MOTION DENIED except to
the extend that petitioners may appeal as amici curiae.
(SEE ORDER on BACK OF MOTION PAPERS) Hear-
ing adjourned to 2/15/78.
2-16-78 Before Dooling, J.—Case called. Hearing resumed.
Hearing adjourned to 2/17/78 @ 10.30 AM. jm
2-17-78 Before DOOLING, J—Case called. Hearing resumed.
Hearing adj’d to 2-21-78. mg
28
DATE PROCEEDINGS
2-23-78 Before DOOLING, J—Case called, Hearing resumed.
Adj’d to 3-2-78. mg
8-2-78 Before DOOLING, J—Case called. Hearing resumed.
Intervenor-deft’s motion to strike testimony of certain
of pltff’s witnesses argued and denied. Hearing adj’d to
3-8-78. mg
3-7-78 Sten. transcript dtd 3-2-78 filed. See 76C 1805. mg
8-8-78 Before Dooling, J.—Case called. Hearing resumed.
Hearing continued to 3/10/78 @ 10AM. jm.
3-10-78 Before Dooling, J.—Case called. Hearing resumed.
Adjourned w/o date. jm
3-28-78 Before Dooling, J.—Case called. All parties present.
Continued to 3/29/78 @ 10AM. jm
3-29-78 Before DOOLING, J—Case called. Hearing resumed.
Hearing cont’d to 3-30-78. mg
4-3-78 By DOOLING, J.—Order dtd. 3-31-78 granting pltff
leave to file a third amended complaint and a supp. com-
plaint and granting leave for NYC to intervene as a pltff
filed. fy
4-3-78 Amended complaint of pltff intervenor-pltff filed. fy
3-30-78 Before DOOLING, J—Case called for hearing, hear-
ing resumed and cont 3-31-78
3-31-78 Before DOOLING, J.—Cace called for hearing, re-
sumed, motion for leave to file third amended complaint
is granted, motion by NYC to intervene as pltff granted
4-21-78 Before DOOLING, J.—Case called. Parties present.
Deft’s H.E.W. to answer interrogatories on or before
May 15, 1978. Order signed. Adjourned without a date.
ls
6-23-78 Before DOOLING, J.—case called for hearing, hear-
ing resumed and ajd without date. fy
7-19-78 Certified copy of order received from court of ap-
peals and filed dismissing appeal (in 76C1804 +124)
alee ae ee oa
pw SiSi i ycatiasis
29
DATE PROCEEDINGS
8-2-78 Before DOOLING, J.—Case called for hearing on
motion to introduce pltffs evidence, all parties present.
Hearing ordered and begun, hearing contd to 8-30-78. fy
8-3-78 Before DOOLING, J.—Case called for hearing on mo-
tion to introduce evidence of PItff. Hearing resumed.
Hearing concluded. Case adjourned to 8/28/78, at 10:00
am for Deft-intervenors case. deft’s briefs due by
10/2/78. Is
8-14-78 Stenographers transcript dtd. 8-2-78 and 8-38-78 filed
in 76C 1804 je
9-6-78 Before Dooling, J.—Case called. All sides present.
Hearing concluded. jm
9-11-78 Sten. transcript dtd. 9-6-78 filed in 76C 1804, doc.
+144, fy
10-20-78 Letter dtd 10-16-78 from Ellen K. Sawyer to J udge
Dooling re: pltff’s position in this case being that taken
in their Memorandum Of Law in 76 C 1804, filed. sk
12-8-78 Sten. transcript dtd. 12-4-78 filed. In 76 C 1804. fy
2-2-79 Sten. Transcript dtd 6/28/78. Filed in 76 C 1804,
+204. Is
1-15-80 By DOOLING, J.—Memo and order for judgment
that judgment must be entered for pltffs etc., filed in
76 C 1804, doc. +217.
1-15-80 Judgment dtd. 1-15-80 approved by J. Dooling that
pltff is a qualified provider of medicaid services and
provides medically necessary abortional services to medi-
caid eligible women, that deft continue to authorize the
expenditure of federal matching funds for medically
necessary abortions etc., see judgment, filed. fy
1-15-80 By DOOLING, J.—Order dtd. 1-15-80 staying en-
forcement of judgment for 30 days from 1-15-80 filed. fy
1-15-80 Notice of appeal filed by USA to Supreme Court.
copies mailed to parties & Sup. Ct. fy
30
DAiE PROCEEDINGS
1-28-80 Notice of appeal filed to Sup. Ct., by intervenor-
defts, copy mailed to Sup. Ct., filed in 76C 1804. fy
1-28-30 Deft-intervenors’ aplication for extension of stay
pending appeal, filed in 76C 1804. fy
1-31-80 Notice of motion ret. 2-4-80 with memo of law for
an extension of the stay pending final determination of
the appeal by the US Supreme Court filed in 76 C 1804. fy
2-25-80 Certified copy of order from Supreme Court denying
application for stay and that probable jurisdiction is
noted, etc., filed in 76C 1804. fy
ey ee
— nese sts me chan eer
btn) sivatiiti lee ih. ean
31
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
76C 1804
CorA McRag, individually and on behalf of all others
similarly situated, PLANNED PARENTHOOD OF NEW
YorRK City, INC.; and IRWIN B. TERAN, M.D., indi-
vidually and on behalf of all others similarly situated,
PLAINTIFFS
Uv.
F. DAVID MATHEWS, Secretary, United States Department
of Health, Education, and Welfare, DEFENDANT.
VERIFIED COMPLAINT
CLASS ACTION
I.
PRELIMINARY STATEMENT
1. This is a civil action for injunctive, declaratory
and other relief. Plaintiffs seek (a) a declaration that
an amendment (“the Hyde Amendment”) to H.R. 14232.
(popularly known as the HEW Appropriations Act for
Fiscal 1976-77) enacted into law on September 30, 1976
is invalid under the United States Constitution and (b)
an injunction against its implementation. |
II.
JURISDICTION
2. This court has jurisdiction of the subject matter
and parties to this cause by virtue of 28 U.S.C. Sections
1331, 1361, 2201 and 2202. The amount in controversy,
exclusive of interest and costs, exceeds $10,000.
82
3. This case arises under the Social Security Act, the
Hyde Amendment, and the First, Fourth, Fifth and Ninth
Amendments to the Constitution.
ITI.
PARTIES
4, Plaintiff Cora McRae is a 24 year old female cit-
izen of the State of New York and the United States.
Plaintiff McRae is in the first trimester of pregnancy
and has made a decision in consultation with her physi-
cian to terminate her pregnancy. Plaintiff has no funds
of her own with which to pay for an abortion and is
financially dependent upon medical assistance (Medicaid)
from the State of New York for all medical care. The
defendant is prohibited by the Hyde Amendment from
authorizing the expenditure of federal matching funds
to pay for abortions requested by and/or performed upon
women eligible for Medicaid including specifically the
plaintiff.
5. Plaintiff PLANNED PARENTHOOD OF NEW YoRK
City, INc. (“PPNYC”) is a §501(c) (3) tax exempt,
not-for-profit corporation incorporated in the State of
New York which provides family planning services and
first trimester abortion services at its state licensed
clinics including one located in the eastern district of
New York.
PPNYC provides an average of approximately 300
abortions per month for Medicaid eligible patients. Un-
til the enactment of the Hyde Amendment, PPNYC was
reimbursed by Medicaid for the abortions it performed
on such patients. The Hyde Amendment prohibits re-
imbursement from federal funds for the performance of
most abortions sought by PPNYC patients who are cov-
ered by Medicaid, including plaintiff McRae.
6. Plaintiff Irwin B. Teran, M.D. (“Dr. Teran”) is
a physician licensed to practice medicine in the State of
New York who specializes in obstetrics and gynecology.
His offices are at 757 Bushwick Avenue, Brooklyn, New
York. Many of his patients are enrolled in the Medicaid
Pad
PDI is om ee te Et
33
program and he is reimbursed for the full range of
obstetrical and gynecological medical services he renders
for them. The Hyde Amendment makes it impossible for
him to be paid for the medically appropriate treatment
of those of his Medicaid patients seeking abortions.
7. Defendant F. David Mathews is Secretary of the
Department of Health, Education and Welfare
(“HEW”), and as such is responsible for the overall
operation and administration of the Department’s pro-
grams, and for the expenditure of sums appropriated
by the Congress for those programs, including Medicaid.
He is sued in his official capacity.
IV.
CLASS ACTION ALLEGATIONS
CLASS OF WOMEN
8. Plaintiff McRae sues on her own behalf and on
behalf of the entire class of pregnant or potentially
pregnant women in the State of New York who are
eligible for Medicaid, who with their physician have de-
cided on abortions, for whom abortions are medically
appropriate and who are prevented from obtaining medi-
cal termination of their pregnancies by the Hyde Amend-
ment “hereinafter “class of women”).
9. The action may be maintained as a class action
on behalf of the class of women under Rule 23 (b) (1) (B)
and under Rule 23(b) (2): Under Rule 238(b) (1) (B)
because the prosecution of separate actions by individual
members of the class would create a risk of adjudications
with respect to individual members of the class which
would as a practical matter be dispositive of the in-
terests of the other members not parties to the adjudi-
cation or substantially impair or impede their ability to
protect their interests; and under Rule 23(b) (2) be-
cause the parties opposing the class have acted or will act
on grounds generally applicable to the class, thereby mak-
ing appropriate final injunctive relief and corresponding
declaratory relief with respect to the class as a whole.
10. The class of women is so numerous that joinder
of all members is impractical.
ay
34
11. Plaintiff McRae will fairly and adequately repre-
sent the interests of the class of women. Her attorneys
include the general counsel to PPNYC and to the Planned
Parenthood Federation of America, Inc., as well as other
lawyers who have extensive experience in litigation in-
volving human rights in the field of family planning and
abortion. Plaintiff McRae and her attorneys are pre-
pared to carry forward the claims of the representative
party to final judgment and to protect the interests of
all members of the class of women.
The questions of law and fact which Plaintiff McRae
seeks to litigate, in particular the constitutionality of
the Hyde Amendment, are common to the class she seeks
to represent.
CLASS OF PHYSICIANS
12. Dr. Teran sues on his own behalf and on behalf
of the entire class of duly licensed physicians and sur-
geons certified for participation in Medicaid and pres-
ently performing or desiring to perform the termination
of pregnancies of members of the above class of women
(hereinafter “class of physicians’’). :
13. The action may be maintained as a class action
on behalf of the class of physicians under Rule 23(b)
(1)(B) and under Rule 23(b) (2): Under Rule 23(b)
(1) (B) because the prosecution of separate actions by
individual members of the class would create a risk of
adjudications with respect to individual members of the
class which would as a practical matter be dispositive
of the interests of the other members not parties to the
adjudication or substantially impair or impede their
ability to protect their interests; under Rule 23(b) (2)
because the parties opposing the class have acted or will
act on grounds generally applicable to the class, thereby
making appropriate final injunctive relief and corre-
sponding declaratory relief with respect to the class as
a whole.
14. The class of physicians is so numerous that joinder
of all members is impracticable.
35
15. Dr. Teran will fairly and adequately represent
the interests of the class of physicians. His attorneys
have extensive experience in litigation involving the
rights of physicians to practice their profession in ac-
cordance with their best medical judgment, especially
in the field of family planning and abortion. Dr. Teran
and his counsel are prepared to carry his claims forward
to final judgment and to protect the interests of all
members of the class of physicians.
16. The questions of law and fact which Dr. Teran
seeks to litigate, in particular the constitutionality of
the Hyde Amendment, are common to the class he seeks
to represent.
V.
THE MEDICAID PROGRAM
17. 42 U.S.C. Section 1896 et seg. (Title XIX of the
Social Security Act), enacted by Congress in 1965, estab-
lishes the Medicaid program and authorizes appropria-
tions to enable states to furnish medical assistance to
families and individuals whose income and resources are
insufficient to meet the costs of medical care and services.
18. New York State implemented the Medicaid pro-
gram in 1966 by enacting Social Services Law, Article 5,
Title 11, establishing a comprehensive program of medi-
cal assistance for needy persons. Abortions elected by in-
digent women upon the advice of duly licensed physicians
within 24 weeks of the commencement of their pregnan-
cies are covered by this program.
VI.
THE HYDE AMENDMENT
19. Prior to enactment of the Hyde Amendment, 50%
of the cost of abortions performed upon patients in the
Eastern District of New York entitled to Medicaid cov-
erage was unconditionally reimbursed from federal funds.
20. The Hyde Amendment provides:
36
“None of the funds contained 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.”
21. The House and Senate Conference Committee with
respect to the Hyde Amendment issued a Conference Re-
port (attached hereto and made a part hereof as “Ex-
hibit A’) which sets forth certain limited circumstances
under which the Committee believes Federal funds may be
used to pay for abortions.
22. Under the Hyde Amendment, the defendant
Mathews is prohibiting from expending funds to pay for
abortions except as stated in paragraph 20 and possibly
paragraph 21.
23. As a result of the Hyde Amendment, the plaintiffs
and the members of the classes they represent are sub-
jected to immediate and irreparable harm, namely:
(a) Plaintiff McRae has been refused an abortion
and believes that others will be similarly refused and
that she and the members of the plaintiff class of
women will be unable to obtain the abortions they
desire without the relief sought in this complaint.
(b) Dr. Teran and members of the class of doc-
tors are not able to afford to perform such abortions
without reimbursement and have refused and must
continue to refuse this treatment.
(c) Plaintiff PPNYC has announced that begin-
ning October 1st it will refuse to serve Medicaid
eligible women who seek abortions and who are un-
able to pay for them. Plaintiff PPNYC is financially
unable to serve such women unless it is assured that
Medicaid reimbursement will be forthcoming.
VII.
FIRST CAUSE OF ACTION
24. The Medicaid program in New York State rou-
tinely pays with federal, state and city funds the full
reasonable costs of all pregnancy related care and serv-
37
ices for those eligible women who choose to carry preg-
nancy to term.
25. Under Title XIX of the Social Security Act, de-
fendant Mathews routinely authorizes reimbursement of
a substantial percentage of the cost of all pregnancy
related care and services for Medicaid eligible women
who choose to carry their pregnancies to term.
26. Under the Hyde Amendment, defendant Mathews
is forbidden to reimburse for any portion of the cost of
abortion services for most eligible women, including the
plaintiff McRae, who choose to terminate their pregnan-
cies by abortion, thus creating an invidiovs classification
which denies to plaintiff and to the class of women the
due process and equal protection of the laws guaranteed
by the First Amendment to the Constitution.
VIII.
SECOND CAUSE OF ACTION
27. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 26 as though fully set forth
herein and further allege as follows:
28. Defendant’s denial of federal funds for reimburse-
ment for abortions as a means of terminating pregnancy
deprives plaintiff McRae and the class of women of their
right to control their own persons, and to privacy and
liberty in matters relating to marriage, sex, procreation
and the family, all in violation of the Fourth, Fifth and
Ninth Amendments to the Constitution.
IX.
THIRD CAUSE OF ACTION
29. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 28 as though fully set forth
herein and further allege as follows:
30. Pregnant women who can pay the necessary costs
of abortion services can obtain such services during the
first two trimesters of pregnancy in New York State.
iii
38
31. By denying reimbursement for abortion services
to Medicaid recipients, defendant has created an invidious
classification which denies to the plaintiff McRae and to
plaintiff class of women the due process and equal pro-
tection of the laws guaranteed by the Fifth Amendment
to the Constitution.
X.
FOURTH CAUSE OF ACTION
32. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 31 as though fully set forth
herein and further allege as follows:
33. Under Title XIX of the Social Security Act, the
Federal government provides matching funds which to-
gether with state funds pay the full cost of sterilization
operations for Medicaid eligible women.
34. By denying payment for abortion services to Medi-
caid eligible women, the defendant coerces women who do
not want at present to bear a child to carry their preg-
nancies to term, resort to self-abortion or other high risk
alternatives or to be irreversibly sterilized rather than
risk a pregnancy which cannot be aborted, all in violation
of the due process and equal protection of the laws guar-
anteed by the Fifth Amendment to the Constitution.
XI.
FIFTH CAUSE OF ACTION
35. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 34 as though fully set forth
herein and further allege as follows:
36. Many pregnant women including plaintiff McRae
have consulted and will continue to consult Dr. Teran
and the class of physicians. For many such women, in-
cluding plaintiff McRae such physicians would, in the
exercise of their best professional judgment, concur in the
women’s decisions to choose abortion and would perform
the abortions sought by such women.
39
87. Defendant’s prohibition of reimbursement to Dr.
Teran and members of his class for abortions performed
upon Medicaid patients who request them deprives Dr.
Teran and plaintiff class of physicians of the right to
practice medicine in accordance with their best medical
judgment as guaranteed by the First, Fourth, Fifth and
Ninth Amendments to the Constitution.
38. The Hyde Amendment infringes upon the right of
Dr. Teran and plaintiff class of physicians to give and
their patients’ right to receive appropriate and adequate
medical treatment and advice pertaining to the decision
whether to terminate a given pregnancy, in violation of
the First, Fourth, Fifth and Ninth Amendments to the
Constitution.
39. Prohibition of reimbursement by the defendant
deprives Dr. Teran and plaintiff class of physicians of
substantial income from abortion services normally ren-
dered to Medicaid eligible women, in violation of the
right of Dr. Teran and the class of physicians to render
medical services and to receive fees for such services, all
without due process of law, in violation ef the Fifth
Amendment to the Constitution.
XII.
SIXTH CAUSE OF ACTION
40. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 89 as though fully set forth
herein and further allege as follows:
41. Many pregnant women have come and will con-
tinue to come to PPNYC for abortion services by physi-
cians performing abortions in PPNYC clinics. Denial of
reimbursement for abortions for Medicaid eligible women
would prevent PPNYC from continuing its program of
such medical services and from receiving fees for such
services, all without due process of law in violation of
the Fifth Amendment to the Constitution.
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5 aria isa
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SES PEARSE Eee SS we
40
XIII.
SEVENTH CAUSE OF ACTION
42. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 41 as though fully set forth
herein and further allege as follows:
43. The intent and effect of the Hyde Amendment is
to force indigent women to carry their pregnancies to
term in violation of their constitutionally protected right
to privacy.
44. One of the principal grounds stated by Congress
’ for the enactment of the Hyde Amendment is that the
use of federal funds for abortion offends the religious
beliefs of certain segments of the population.
45. The Hyde Amendment constitutes an establish-
ment of religion in violation of the First Amendment to
the Constitution. No secular justification for the restric-
tion has been advanced.
WHEREFORE, Plaintiffs pray:
1. That this court declare that the Hyde Amendment
is null and void because it violates the Constitution of
the United States.
2. That this court enter preliminary and permanent
injunctions pursuant to Rule 65 of the Federal Rules of
Civil Procedure enjoining the defendant, his successors
in office, agents and employees, and all other persons in
active concert and participation with him, from refusing
to pay federal matching funds (at the proportionate level
and in accord with the standards under which they were
being paid before the Hyde Amendment was enacted)
for abortions provided to women eligible for Medicaid.
3. That this court render its judgment ordering the
defendant to continue to pay federal matching funds for
abortions provided to women eligible for Medicaid.
4, That this court award plaintiffs their costs herein
and grant them such other further relief as this court
may deem just, proper and equitable.
a6 ee get da A cc at rt a ag a es ER
41
Dated: September 30, 1976
GREENBAUM, WOLFF & ERNST
437 Madison Avenue
New York, New York 10022
Telephone No. (212) 758-4010
By: /s/ Harriet F. Pilpel
HARRIET F, PILPEL
FREDERIC S. NATHAN
LAURENCE VOGEL
EVE W. PAUL
Attorneys for Plaintiff Planned
oo of New York City,
nc,
SyLvia A. LAW
40 Washington Square South
New York, New York 10022
Telephone No. (212) 598-7642
RHONDA COPELON
NANCY STEARNS
Center for Constitutional Rights
853 Broadway
New York, New York 10003
Telephone No. (212) 674-3303
JILL LAURIE GOODMAN
ELLEN LEITZER
JUDITH MEARS
NADINE TAUB
American Civil Liberties Union
22 East 40th Street
New York, New York 10016
Telephone No. (212) 725-1222
By:
Attorneys for Women and Doctor
Plaintiffs
42
Of Counsel:
Representative Bella Abzug
252 Seventh Avenue
New York, New York 10001
Telephone No. (212) 620-6701
43
STATE OF NEW YorRK )
ss. .
COUNTY OF NEW YORK _)
ALFRED F. Moran, being duly sworn, deposes and says
that he resides at 90 Springhurst Road, Bedford Hils,
New York; that he is the Executive Vice President of
PLANNED PARENTHOOD OF NEW YorK CITY, INC., one of
the plaintiffs herein; and that he has read the foregoing
verified complaint and knows the contents thereof and
to the best of his knowledge the same are true except
as to the matters therein stated to be alleged on informa-
tion and belief, and as to those matters he believes them
to be true.
ALFRED F’. MORAN
Sworn to before me this
day of October, 1976
Notary Public
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47
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
76 Civ. 1805
NEW YORK CITY HEALTH AND HOSPITALS
CORPORATION, PLAINTIFF
Vv.
F’. DAVID MATHEWS, SECRETARY OF HEALTH,
EDUCATION, AND WELFARE, DEFENDANT
VERIFIED COMPLAINT
PRELIMINARY STATEMENT
1. This is a civil action for injunctive, declaratory and
other relief. Plaintiff seeks (a) a declaration that an
amendment (“the Hyde Amendment”) to HR 14232 Bill
(popularly known as the HEW Appropriations Act for
Fiscal 1976-77), which prohibits any of the funds ap-
propriated therein from being used to perform abortions
except where the life of the mother would be endangered
if the fetus were carried to full term, and which was
enacted into law on September 30, 1976 is invalid under
the United States Constitution and (b) an injunction
against its implementation.
JURISDICTION
2. Jurisdiction of the subject matter and the parties
to this action is conferred upon this Court by 28 U.S.C.
1331, 13861, 2201, and 2202. The amount in controversy,
exclusive of interests and costs, exceeds $10,000.
48
PARTIES
3. The New York City Health and Hospitals Corpora-
tion (hereinafter the “Corporation”) is a public benefit
corporation, organized pursuant to Section 7381, et seq.
of the Unconsolidated Laws of New York, and charged
with the duty of providing high quality, dignified and
comprehensive health and medical services and with op-
erating municipal health facilities in order to protect
and promote the health, welfare and safety of the people
of the City of New York, particularly those who can least
afford such services. The Corporation presently operates
16 municipal hospitals, three Neighborhood Family Care
Centers, and other health care facilities.
4. Twelve of the municipal hospitals perform abor-
tions. The entire municipal hospital system provided a
total of 10,324 abortions in 1974 for Medicaid eligible
patients. (Statistics for 1975 and 1976 are not yet avail-
able.) Until the enactment of the Hyde Amendment, the
municipal hospitals administered by the Corporation were
reimbursed by Medicaid for the abortions they performed
on such patients. The Hyde Amendment prohibits reim-
bursement from federal funds for the performance of
most abortions sought by municipal hospital patients who
are covered by Medicaid.
5. Defendant F. David Mathews is Secretary of the
Department of Health, Education and Welfare
(“HEW”), and as such is responsible for the overall op-
eration and administration of the Department’s pro-
grams, and for the expenditure of sums appropriate by
the Congress for those programs, including Medicaid. He
is sued in his official capacity.
THE MEDICAID PROGRAM
6. 42 U.S.C. Section 1396 et seg. (Title XIX of the
Social Security Act), enacted by Congress in 1965, estab-
lished the Medicaid program and authorizes appropria-
tions to enable states to furnish medical assistance to
families and individuals whose income and resources are
insufficient to meet the costs of medical care and services
49
7. New York State implemented the Medicaid pro-
gram in 1966 by enacting Social Services Law, Article 5,
Title 11, establishing a comprehensive program of medi-
cal assistance for needy persons. Abortions elected by
indigent women upon the advice of duly licensed physi-
cians within 24 weeks of the commencement of their
pregnancies are covered by this program.
THE HYDE AMENDMENT
8. Prior to enactment of the Hyde Amendment, 50%
of the cost of abortions performed upon Medicaid eligible
patients treated at plaintiff’s hospitals was uncon-
ditionally reimbursed from federal funds.
9. On September 30, 1976, Congress enacted into law
the Hyde Amendment, which was attached as a Rider
(Section 209) to H.R. 14232, the HEW Appropriations
Bill for fiscal year 1977 (October 1, 1976 to September
30,1977). The Hyde Amendment provides:
“None of the funds contained 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.”
10. The House and Senate Conference Committee
with respect to the Hyde Amendment issued a Conference
Report (attached to the complaint filed today in the
companion case entitled McRae v. Mathews, 76 Civ.
[E.D.N.Y.]) which sets forth additional limited circum-
stances under which federal funds may be used to pay
for abortions. These circumstances are limited to when
the pregnancy is the result of rape or incest.
11. Under the Hyde Amendment, the defendant Ma-
thews is prohibited from expending federal funds to pay
for abortions except as stated in paragraphs 9 and 10.
12. Without these federal matching moneys to pay for
abortions, states will have two alternatives: to assume
the total cost of each abortion performed upon patients
entitled to Medicaid coverage or to refuse to pay for any
such abortion.
ee SM ee eS ee Ek et
50
13. There is an outstanding directive from this Court
to the New York State Commissioner of Social Services
prohibiting him from refusing Medicaid reimbursement
under Section 365-a of the Social Services Law for lawful
abortional acts to indigent women who otherwise qualify
for medical assistance under that statute and its regula-
tions. Klein v. Nassau County Medical Center, 409 F.
Supp. 731 (three judge court, E.D.N.Y., 1976), appeal
docketed No. 75-1749 (May 27, 1976).
14. Upon information and belief, New York State
will refuse to pay the Corporation for any such abor-
tions due to the enormous expense involved and the
State’s traditional financial dependence upon federal
moneys to fund Medicaid coverage for all eligible state
recipients. Without the matching federal funds, New
York State will be unwilling to fulfill its constitutional
obligation to provide medical assistance to indigent
women seeking elective abortions in the first two trimest-
ers of pregnancy.
15. hy panels of the Hyde Amendment, plaintiff Cor-
poration is subjected to immediate and irreparable harm,
namely:
(a) The Corporation will suffer an immediate and di-
rect financial loss amounting to full cost or at least 50 %
of the two million dollars which it now receives as reim-
bursement for abortions performed in its municipal hos-
pitals. Further, the Corporation will be forced to assume
costs amounting to an estimated six million dollars from
the shift of Medicaid patients seeking abortions from
clinics and private hospitals to the municipal hospitals.
(b) Planned Parenthood of New York City, a New
York State not-for-profit corporation which provides
family planning services and first trimester abortion
services at its licensed clinics, has announced that be-
ginning October 1, 1976 it will refuse to service Medi-
caid eligible women who seek abortions and who are un-
able to pay for them. See complaint filed today in com-
panion case of McRae v. Mathews, 76 Civ. (E.D.N.Y.).
Upon information and belief, other clinics, physicians,
and the proprietary and voluntary hospital will also im-
51
mediately discontinue provision of abortion services to
indigent women. Predictably, the Corporation’s hospitals
will be asked to provide care to a large number of in-
digent women no longer able to obtain abortions from
these clinics, physicians, proprietary and voluntary hos-
pitals. Unless the relief requested herein is granted, this
increasing demand for services at the Corporation’s fa-
cilities is to borne without help from Medicaid and dur-
ing a time of severe financial crisis within the municipal
hospital system and the entire City. The Corporation will
eventually be forced severely to curtail its abortion and/
or other medical services. The inevitable result will be
delays in the scheduling of abortions and necessarily in-
creased risks to women. The delays will prevent many
women from obtaining an abortion at all.
(ce) The Corporation will have to bear the immediate
increased administrative costs of instituting procedures
to identify those abortions in which Medicaid reimburse-
ment may be available because of the threat to the life
of the mother or because the pregnancy is the result of
incest or rape.
(d) If the Corporation does not have sufficient funds
to fulfill its statutory purpose to render quality health
care to its indigent female patients who seek elective
abortions in the first two trimesters of pregnancy, then
it is likely there will be unfortunate social consequences,
including a substantial increase in the number of unsafe
and illegal abortions performed elsewhere, the birth of
unwanted children, some of whom will ultimately become
public charges, and increasing illegitimacy and child
abuse.
FIRST CAUSE OF ACTION
16. Many pregnant women have sought and will con-
tinue to seek abortions in the Corporation’s hospitals.
For many such women, the physicians in the municipal
hospitals would, in the exercise of their best professional
judgment, recommend and perform the abortions sought
by such women.
17. Defendant’s denial of reimbursement to the Cor-
poration for abortions performed upon Medicaid women
52
who request them unreasonably interferes with the free-
dom of the Corporation to render that comprehensive and
high quality medical care pursuant to its statutory
powers and purposes, in violation of due process of law
as guaranteed by the Fifth Amendment to the U.S. Con-
stitution.
SECOND CAUSE OF ACTION
18. Plaintiff repeats and realleges all the allega-
tions of paragraph 1 through 17 as though fully set
forth herein and further alleges as follows:
19. Public hospitals with obstetric and gynecology
services have a duty under the law to provide first and
second trimester abortions for women desirous of receiv-
ing them.
20. Proprietary and voluntary hospitals have no duty
to provide abortions or any other services for which they
are not reimbursed.
21. The defendant unfairly disfavors public hospitals
and discriminates against the Corporation by withdraw-
ing Medicaid reimbursement for abortion services that
the municipal hospitals, unlike the proprietary and
voluntary hospitals, are obligated to provide, thus requir-
ing only public hospitals to perform services without
fees in violation of the equal protection of the laws guar-
anteed by the Fifth Amendment to the Constitution.
THIRD CAUSE OF ACTION
22. Plaintiff repeats and realleges all the allegations
of paragraph 1 through 21 as though fully set forth
herein and further alleges as follows:
23. Denial of reimbursement by the defendant de-
prives the Corporation of substantial income from abor-
tion services normally rendered to Medicaid eligible
women in violation of the right of the Corporation to
render medical services and to receive fees for such serv-
ices, all without due process of law, in violation of the
Fifth Amendment to the Constitution.
53
FOURTH CAUSE OF ACTION
24. Plaintiff repeats and realleges all the allegations
of paragraphs 1 through 23 as though fully set forth
herein and further alleges as follows:
25. The Hyde Amendment infringes upon the Cor-
poration’s right to give and its patient population’s right
to receive safe and adequate medical treatment and ad-
vice pertaining to the decision whether to terminate a
given pregnancy, in violation of the First, Fourth, Fifth
and Ninth Amendments to the Constitution.
FIFTH CAUSE OF ACTION
_26. Plaintiff repeats and realleges all the allegations
vf paragraphs 1 through 25 as though fully set forth
herein and further alleges as follows:
27. Under the Medicaid program, the Federal govern-
ment provides 90% reimbursement for funding steriliza-
tions, which together with state funds pays the full cost
of sterilization operations for Medicaid eligible women.
28. By denying payment for abortion services to Medi-
caid eligible women, the defendant coerces those indigent
women who form part of the population to be served by
the Corporation and who do not want at present to bear
a child to be irreversibly sterilized rather than risk a
pregnancy which cannot be aborted, all in violation of the
due process and equal protection of the laws guaranteed
by the Fifth Amendment to the Constitution.
SIXTH CAUSE OF ACTION
29. Plaintiff repeats and realieges all the allegations
of paragraph 1 through 28 as though fully set forth
herein and alleges as follows:
30. The Medicaid program in New York State rou-
tinely pays with federal, state and city funds the full rea-
sonable costs of all pregnancy related care and services
for those eligible women who choose to carry pregnancy
to term.
54
31. Under the Hyde Amendment, defendant Mathews
is forbidden to reimburse for any portion of the cost of
abortion services for most Medicaid eligitle women who
choose to terminate their pregnancies by abortion, thus
creating an invidious classification which denies to the
class of women, mainly minority, served by the Cor-
poration in its municipal hospitals the due process and
equal protection of the laws guaranteed by the Fifth
Amendment to the Constitution.
SEVENTH CAUSE OF ACTION
32. Plaintiff repeats and realleges all the allegations
of paragraphs 1 through 31 as though fully set forth
herein and further alleges as follows:
33. Defendant’s denial of federal funds for reimburse-
ment for abortions as a means of terminating pregnancy
deprives the class of women, mainly -minority, served by
the Corporation in its municipal hospitals of their funda-
mental right to decide whether to bear a child, and to pri-
vacy and liberty in matters relating to marriage, sex,
procreation and the family, all in violation of the Fourth,
Fifth and Ninth Amendments to the Constitution.
EIGHTH CAUSE OF ACTION
34. Plaintiff repeats and realleges all the allegations
of paragraphs 1 through 33 as though fully set forth
herein and further alleges as follows:
35. Pregnant women who can pay the necessary costs
of abortion services can obtain such services during the
first two trimesters of pregnancy in New York-State.
36. By denying reimbursement for abortion services
to Medicaid recipients, defendant has created an invidious
classification which denies to the class of women, mainly
minority, served by the Corporation in its municipal hos-
pitals the due process and equal protection of the laws
guaranteed by the Fifth Amendment to the Constitution.
55
NINTH CAUSE OF ACTION
37. Plaintiff repeats and realleges all the allegations
of paragraphs 1 through 386 as though fully set forth
herein and further alleges as follows:
38. The intent and effect of the Hyde Amendment is to
force indigent women to carry their pregnancies to term:
in violation of their constitutionally protected right to
privacy.
39. One of the principal grounds stated by Congress
for the enactment of the Hyde Amendment is: that the
use of federal funds for abortion offends the religious
beliefs of certain segments of the population.
40. The Hyde Amendment constitutes an establish-
ment of religion in violation of the First Amendment to
the Constitution.
RELIEF REQUESTED
WHEREFORE, plaintiff prays that the Court:
1, Assume jurisdiction of this cause pursuant to 28
U.S.C. 1331, 1861, 2201 and 2202.
2. Pending a hearing on the merits, grant a temporary
restraining order, enjoining and restraining the defend-
ant, his successors in office, agents and employees, and
all persons in active concert and participation with him,
from refusing to pay federal matching funds (at the
proportionate level they were being paid before the Hyde
Amendment was enicted) for abortions provided to
women eligible for Medicaid.
3. Declare that the Hyde Amendment is null and void
on the ground that it is unconstitutional on its face, and
as applied, and enter a final judgment declaring that
defendant’s refusal to pay federal matching funds for
abortions provided to women eligible for Medicaid vio-
lates the Constitution of the United States.
4. Enter preliminary and permanent injunctions pur-
suant to Rule 65 of the Federal Rules of Civil Procedure,
enjoining and restraining the defendant, his successors in
office, agents and employees, and all other persons in ac-
«
56
tive concert and participation with him, from refusing
to pay federal matching funds (at the proportionate level
they were being paid before the Hyde Amendment was
enacted) for abortions provided to women eligible for
Medicaid.
5. Award plaintiff its costs and disbursements in this
action and grant it such other and further relief as this
Court may deem just, proper and equitable.
Dated: New York, New York
October 1, 1976
W. BERNARD RICHLAND
Corporation Counsel
By: /s/ James G. Greilsheimer
JAMES G. GREILSHEIMER
Litigating Assistant
Corporation Counsel
/s/ Ellen K. Sawyer
ELLEN K. SAWYER
Assistant Corporation
Counsel
Office and P.O. Address
Municipal Building
New York, New York 10007
Tel. 566-5500 or 2197
57
VERIFICATION
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK _)
_Dr. JOHN L. S. HOLLOMAN, Jr. being duly sworn, says
that“he_is President of the New York City Health and
Hospitals Corporation, plaintiff herein. That the fore-
going complaint is true to his knowledge except as to
matters therein stated to be alleged upon information
and belief, and as to those matters he believes it to be
true. That the grounds of his belief as to all matters
not therein stated upon his own knowledge are as fol-
lows: Information obtained from books and records of
the New York City Health and Hospitals Corporation
and from statements made to him by certain officers or
agents of the aforesaid Corporation.
/s/ John L. 8. Holloman, Jr.
Dr. JOHN L. S. HOLLOMAN, JR.
Sworn to before me this
30th day of September, 1976
/s/ Sidney Schutz
SIDNEY SCHUTZ
Notary Public, State of New York
Qualified in Bronx County
Registration No. 8864475
Term Expires March 30, 1978
58
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
76 Civ. 1804 (JFD)
CoRA MCRAE, JANE DOE, MARY DOE, SUSAN ROE, ANN
MOE, individually and on behalf of all others similarly
situated; PLANNED PARENTHOOD OF NEW YORK CITY,
INC.; and IRWIN B. TERAN, M.D., JANE Hopcson, M.D.,
DaviD B. BINGHAM, M.D., HuGH SAVAGE, M.D., individ-
ually and on behalf of all others similarly situated;
WOMEN’S DIVISION OF THE BOARD OF GLOBAL MINIS-
TRIES of the UNITED METHODIST CHURCH, THERESSA
HOOVER, its ASSOCIATE GENERAL SECRETARY, ELLEN
KIRBY, its EXECUTIVE DIRECTOR, PLAINTIFFS
-against-
JOSEPH A. CALIFANO, JR., Secretary, United States De-
partment of Health, Education and Welfare, DEFENDANT
PLAINTIFFS’ AND PROPOSED INTERVENORS’
AMENDED COMPLAINT
CLASS ACTION
I
PRELIMINARY STATEMENT
1. This is a civil action for injunctive, declaratory and
other relief. Plaintiffs seek 4 declaration that the enact-
ment and implementation of an amendment (“the 1977
Hyde Amendment”) to P.L. 94-489 (popularly known as
the HEW Appropriations Act for Fiscal 1976-77) enacted
into law on September 30, 1976 is invalid under Title 19
59
of the Social Security Act and the United States Consti-
tution. In addition, plaintiffs seek (a) a declaration that
the enactment and implementation of a superseding rider
to P.L. 95-205 (popularly known as a continuing resolu-
tion authorizing HEW Appropriations for Fiscal 1977-78
and hereinafter referred to as the “1978 Hyde Amend-
ment”) enacted into law on December 10, 1977 is invalid
under Title 19 of the Social Security Act and the United
States Constitution and (b) an injunction against its
implementation. Plaintiffs further seek damages for
funds wrongfully withheld under the 1977 and 1978 Hyde
Amendments (hereinafter the “Hyde Amendments”).
II.
JURISDICTION
2. This Court has jurisdiction of the subject matter
and parties to this cause by virtue of 28 U.S.C. Sections
1331, 1361, 2201 and 2202. The amount in controversy,
exclusive of interest and costs, exceeds $10,000.
3. This case arises under the Social Security Act, the
1977 and the 1978 Hyde Amendments, and the First,
Fourth, Fifth, Ninth and Fourteenth Amendments to the
United States Constitution.
ITI.
PARTIES
4. Plaintiff CORA McRAE at the institution of this
action was a twenty-four-old female citizen of the State
of New York and the United States. Plaintiff McRAE
was in the first trimester of pregnancy and had made
a decision in consultation with her physician to terminate
her pregnancy. Plaintiff had no funds of her own with
which to pay for an abortion and was financially depend-
ent upon medical assistance (Medicaid) from the State
of New York for all medical care. On the basis of the
enactment of the 1977 Hyde Amendment plaintiff was
60
refused an abortion because of fear that Medicaid reim-
bursement would be withheld.
5. At the time of filing her intervenor’s complaint,
plaintiff MARY DOE was a nineteen-year-old female cit-
izen of the State of Connecticut and the United States.
She was unmarried and had four children, aged five
years, four years, three years and eleven months old.
Plaintiff MARY DOE was in her second trimester of preg-
nancy. She was suffering from an overt depression and
had stated that she might attempt suicide if she could
not obtain an abortion. Her physician, named plaintiff
David B. Bingham, M.D., had determined that an abor-
tion was medically necessary for her, but could not cer-
tify her pregnancy as life-endangering. Plaintiff had no
funds of her own with which to pay for an abortion and
was financially dependent upon medical assistance (Medic-
aid) from the State of Connecticut for all medical care.
6. At the time of the filing of her intervenor’s com-
plaint plaintiff JANE DOE was a twenty-five-year-old fe-
male citizen of the State of Minnesota and the United
States. Plaintiff JANE DOE was in her first trimester of
pregnancy. She suffers from a serious case of phlebitis,
a condition which would be greatly aggravated by carry-
ing her pregnancy to term. Her physician, named plain-
tiff Jane Hodgson, M.D., had determined that an abor-
tion was medically necessary for her because of the in-
creased risk of blood clots which may cause permanent
health problems and even death, but did not believe she
could certify her for an abortion under the 1977 Hyde
Amendment. Plaintiff had no funds of her own with
which to pay for an abortion and was financially depend-
en upon medical assistance (Medicaid) from the State
of Minnesota for all medical care.
7 Plaintiff SUSAN ROE is a nineteen-year-old native
American Indian women who is a citizen of the State of
Minnesota and the United States. Plaintiff SuSAN ROE is
in her second trimester of pregnancy. She is unmarried
and became pregnant four weeks after the birth of her
one child. She is suffering from severe emotional trauma
and is threatened with severe and long-lasting mental
health damage should the pregnancy continue to term.
61
In addition, the rapid succession of pregnancies threat-
ens substantial harm to her physical health and to the
physical and mental capacity of any afterborn child. Her
physician, named plaintiff Jane Hodgson, M.D., has de-
termined that an abortion is medically necessary for
her but cannot certify it as meeting the standard of
either the 1977 or 1978 Hyde Amendment. Plaintiff
has no funds of her own with which to pay for an abor-
tion and is financially dependent upon medical assistance
(Medicaid) from the State of Minnesota for all medical
care.
8. Plaintiff ANN MOE is a fifteen-year-old citizen of
the State of Minnesota and the United States. Plaintiff
ANN MOE is eleven weeks pregnant. She is unmarried
and has a long history of hospitalizations for severe men-
tal illness. She is threatened with severe and longlasting
mental health damage should she be forced to continue
her pregnancy to term. In addition, she is threatened
with all the physical health risks attendant to a teenage
pregnancy. Her physician, named plaintiff Jane Hodgson,
M.D., has determined that an abortion is medically nec-
essary for her but cannot certify her under either the
1977 or 1978 Hyde Amendment standards. In partic-
ular, with respect to severe and longlasting health dam-
age, Dr. Hodgson is unable to obtain the concurrence of
plaintiff Mor’s family physician, and expects from past
experience that any certification would be rejected. Plain-
tiff ANN MoE has no funds of her own with which
to pay for an abortion and is financially dependent upon
medical assistance (Medicaid) from the State of Min-
nesota for all medical care.
9. Plaintiff PLANNED PARENTHOOD OF NEW YorK
City, INc. (“PPNYC”), is a § 501(c) (3) tax exempt,
not-for-profit corporation incorporated in the State of
New York which provides family planning services and
first trimester abortion services at its state licensed clin-
~ ree one located in the eastern district of New
ork.
PPNYC provides an average of approximately 300
abortions per month for Medicaid eligible patients. The
Hyde Amendments prohibit reimbursement from federal
62
funds for the performance of most abortions sought by
PPNYC patients who are covered by Medicaid including
Plaintiff MCRAE. Although the State of New York has
continued to reimburse PPNYC from state and _ local
funds for all medically necessary abortions it provides
for its patients, the Hyde Amendments have placed such
reimbursement in jeopardy.
10. Plaintiff IRwIN B. TERAN, M.D., is a physician
licensed to practice medicine in the State of New York
who specializes in obstetrics and gynecology. His offices
are at 757 Bushwick Avenue, Brooklyn, New York.
Many of his patients are enrolled in the Medicaid pro-
gram and he is reimbursed for the full range of ob-
stetrical and gynecological medical services he renders
for them. Federal matching funds are provided for all
such services except for those abortions which fail to
qualify under the Hyde Amendments.
11. Plaintiff JANE HopGson, M.D., is a physician li-
censed to practice medicine in the State of Minnesota
who specializes in obstetrics and gynecology. Her offices
are at St. Paul-Ramsey Hospital, 640 Jackson Street, St.
Paul, Minnesota. Many of her patients are enrolled in
the Medicaid program and she is reimbursed for the
obstetrical and gynecological medical services she renders
for them. Subsequent to the implementation of the 1977
Hyde Amendment, Minnesota has refused reimbursement
for all abortions except those where the pregnancy is cer-
tified as life-endangering.
12. Plaintiff DAvin B. BINGHAM, M.D., is a physician
licensed to practice medicine in the State of Connecticut
who specializes in obstetrics and gynecology. His offices
are at 159 Sachem Street, Norwich, Connecticut. Many
of his patients are enrolled in the Medicaid program and
he is reimbursed for the obstetrical and gynecological
medical services he renders for them. Subsequent to the
implementation of the 1977 Hyde Amendment, Connec-
ticut has refused Medicaid reimbursement for all abor-
tions except those where the pregnancy is certified and
approved in advance as life-endangering.
13. Plaintiff HuGH SAvacgr, M.D., is a physician li-
censed to practice medicine in the State of Texas. His
63
offices are at 1201 West Presidio, Fort Worth, Texas.
Many of his patients are low-income women who would,
except for the Hyde Amendments, be eligible for fed-
erally funded abortions paid for either under Medicaid
or Title XX of the Social Security Act. Subsequent to
the implementation of the 1977 Hyde Amendment, Texas
refuses to reimburse for any abortion except those where
the pregnancy is certified and approved in advance as
life-endangering.
14. Plaintiff EDGAR N. JACKSON, M.D., is a physician
licensed to practice medicine in the State of Georgia who
specializes in obstetrics and gynecology. His offices are
at 384 Peachtree Street, N.E., Atlanta, Georgia. Many
of his patients are enrolled in the Medicaid program
and he is reimbursed for the obstetrical and gynecologi-
cal medical services he renders for them. Subsequent
to the implementation of the 1977 Hyde Amendment,
. Georgia has refused Medicaid reimbursement for all abor-
tions except those where the pregnancy is certified as
life-endangering.
15. Plaintiff LEwis H. Kopuik, M.D., is a physician
licensed to practice medicine in the State of New Mexico
who specializes in obstetrics and gynecology. His offices
are at 107 Girard Boulevard, S.E., Albuquerque, New
Mexico, Many of his patients are low-income women
who would, except for the Hyde Amendments, be eligible
for federally funded abortions paid for under Medicaid
or Title XX of the Social Security Act. Subsequent to
the implementation of the 1977 Hyde Amendment, New
Mexico has refused to reimburse for any abortions ex-
cept for those where the pregnancy is certified as life-
endangering.
16. The WOMEN’S DIVISION OF THE BOARD OF GLOBAL
MINISTRIES OF THE UNITED METHODIST CHURCH (here-
after Women’s Division) is the policy-making body for
United Methodist Women comprising 1.2 million women
living in every state and the District of Columbia. The
Women’s Division sues on behalf of itself and the mem-
bership of United Methodist Women among whom are
poor, pregnant women who are dependent on Medicaid
to obtain safe, legal abortions, whose ability to obtain
64
such is impeded or precluded by the Hyde Amendments
and who object to having someone else’s religious beliefs
about abortion imposed upon them thereby inhibiting
their freedom of conscience. The membership of United
Methodist Women also includes federal taxpayers who
object to the Hyde Amendments as violating the First
Amendment’s limitations on the taxing and spending
powers, Article 1, Section 8 of the Constitution.
17. THERESSA HOOVER, a citizen of the United States
resides in New York City and is ASSOCIATE GENERAL
SECRETARY OF THE WOMEN’S DIVISION. She adheres to
the Methodist teaching that Methodist women have a
religious right and duty to decide in accordance with
the principle of responsible parenthood, whether or not to
terminate a pregnancy. She is a federal taxpayer who
objects to the Hyde Amendments’ restrictions on federal
funding for abortion as embodying and advancing a dif-
ferent religious belief about abortion. She objects to hav-
ing her tax funds expended on the basis of this different
religious view of abortion, and with the intent and ef-
fect of manipulating poor women’s determination about
responsible parenthood. She also objects to the additional
social, human and tax costs which the Hyde Amendment
requires for the continuation of unwanted pregnancies,
and for medical complications resulting from self-induced
abortions or from the forced continuation of unwanted
life and health-threatening pregnancies.
18. ELLEN KIRBY is a citizen of the United States,
resides in Brooklyn, New York and is EXECUTIVE DIREC-
TOR OF THE WOMEN’S DIVISION. She adheres to the Meth-
odist teaching that Methodist women have a religious
right and duty to decide in accordance with the principle
of responsible parenthood, whether or not to terminate
a pregnancy. She is a federal taxpayer who objects to
the Hyde Amendments’ restrictions on federal funding
for abortion as embodying and advancing a different
religious belief about abortion. She objects to having her
tax funds expended on the basis of this different religious
view of abortion, and with the intent and effect of mani-
pulating poor women’s determination about responsible
parenthood. She also objects to the additional social,
65
human and tax costs which the Hyde Amendment re-
quires for the continuation of unwanted pregnancies,
and for medical complications resulting from self-induced
abortions or from the forced continuation of unwanted
life- and health-threatening pregnancies.
19. Defendant JOSEPH A. CALIFANO is Secretary of
the Department of Health, Education and Welfare
(“HEW”), and as such is responsible for the overall
operation and administration of the Department’s pro-
grams and for the expenditure of sums appropriated by
the Congress for those programs, including Medicaid.
He is sued in his official capacity.
IV.
CLASS ACTION ALLEGATIONS
20. Plaintiffs MCRAE, Dor, Dor, RoE and MOE sue on
their own behalf and on behalf of the entire class of
pregnant or potentially pregnant women who are eligible
for medical assistance provided under their state plans,
who with their physicians have decided on abortions;
for whom abortions are medically necessary; who have
been, are or will be prevented or impeded in obtaining
medical termination of their pregnancies by the Hyde
Amendments (hereinafter “class of women”). The class
includes women of all religious and nonreligious persua-
sions and beliefs who have, in accordance with the teach
ing of their religion and/or the dictates of their con-
science determined that an abortion is necessary.
21. The action may be maintained as a class action on
behalf of the class of women under Rule 23(b) (1) (B)
and under Rule 23(b)(2): under Rule 28(b) (1) (B)
because the prosecution of separate actions by individual
members of the class would create a risk of adjudications
with respect to individual members of the class which
would as a practical matter be dispositive of the in-
terests of the other members not parties to the adjudi-
cation or substantially impair or impede their ability to
protect their interests; and under Rule 23(b) (2) because
the parties opposing the class have acted or will act on
66
grounds generally applicable to the class, thereby making
appropriate final injunctive relief and corresponding
declaratory relief with respect to the class as a whole.
22. The class of women is so numerous that joinder
of all members is impracticable.
23. Plaintiffs MCRAE, Dor, DoE, RoE and MOE will
fairly and adequately represent the interests of the class
of women. Their attorneys have extensive experience in
litigation involving human rights in the field of family
planning and abortion. Plaintiffs and their attorneys
are prepared to carry forward the claims of the repre-
sentative parties to final judgment and to protect the in-
terests of all members of the class of women.
The questions of law and fact which plaintiffs MCRAE,
DoE, DoE, ROE and MOE seek to liquidate, in particular
the legality and constitutionality of the Hyde Amend-
ments and their implementation are common to the class
they seek to represent. ~
CLASS OF PHYSICIANS
24. Dr. TERAN, DR. HODGSON, DR. BINGHAM, DR.
SAVAGE, DR. JACKSON and Dr. KOPLIK sue on their own
behalf and on behalf of the entire class of duly licensed
and Medicaid certified providers of abortional services to
eligible women. Plaintiff physicians are prevented or im-
peded from performing and/or certifying abortions for
these women, because of the lack of Medicaid reimburse-
ment. On rare occasions some of these doctors perform
abortions for eligible women without fee and for which
they receive no reimbursement (hereinafter “class of
physicians’).
25. Plaintiff physicians also sue on behalf of their
patients as defined in paragraph twenty (20).
26. The action may be maintained as a class action on
behalf of the class of physicians under Rule 23(b) (1)
(B) and under Rule 23(b) (2): under Rule 23(b) (1)
(B) because the prosecution of separate actions by indi-
vidual members of the class would create a risk of adjudi-
cations with respect to individual members of the class
67
which would as a practical matter be dispositive of the
interests of the other members not parties to the adjudi-
cation or substantially impair or impede their ability to
protect their interests; under Rule 23(b) (2) because the
parties opposing the class have acted or will act on
grounds generally applicable to the class, thereby making
appropriate final injunctive relief and corresponding de-
claratory relief with respect to the class as a whole.
27. The class of physicians is so numerous that joinder
of al! members is impracticable.
28. Dr. TERAN, Dr. Hopcson, Dr. BINGHAM, Dr.
SAVAGE, DR. JACKSON and Dr. KopLik will fairly and
adequately represent the interests of the class of phy-
sicians as well as the class of their pregnant Medicaid-
eligible patients. Their attorneys have extensive exper-
ience in litigation involving the rights of physicians to
practice their profession in accordance with their best
medical judgment, especially in the field of family plan-
ning and abortion. The named plaintiff doctors and their
counsel are prepared to carry their claims forward to
final judgment and to protect the interests of all members
of the class of physicians and class of patients.
29. The questions of law and fact which the named
doctors seek to litigate, in particular the legality and
constitutionality of the Hyde Amendments, and their en-
titlement to damages for reimbursement wrongfully
withheld, are common to the class they seek to represent.
VI.
THE MEDICAID PROGRAM
30. 42 U.S.C. Sections 1896 et seg. (Title XIX of the
Social Security Act) passed by Congress in 1965, es-
tablishes the Medicaid Program. Title XIX of the Social
Security Act and the implementing regulations require
states to provide reimbursement for all medically neces-
sary physician and hospital services, with exceptions not
here applicable, to families and individuals whose income
and resources are insufficient to meet the costs of medical
care and services. With the exception of abortions ex-
68
cluded by the Hyde Amendments, federal matching funds
from 50 to 83% of the cost of covered services are pro-
vided to states.
31. In 1967 an amendment to Title XIX was enacted
to require the states to establish a comprehensive health
program for children under the age of 21, entitled Early
and Periodic Screening Diagnosis and Treatment
(“EPSDT”). 42 U.S.C. § 1896d (a) (4) (B).
32. With the exception of Arizona, every state has a
medical assistance plan which receives federal funds and
which reimburses certified providers for the services they
perform.
33. With the exception of the Hyde Amendments, Title
XIX of the Social Security Act operates on a principle
of neutrality with respect to an eligible individual’s re-
ligious beliefs concerning health care. 42 U.S.C. 1396f
provides:
“$ 1396. Observance of religious beliefs
Nothing in this subchapter shall be construed to re-
quire any State which has‘a plan approved under
this subchapter to compel any person to undergo any
medical screening, examination, diagnosis, or treat-
ment or to accept any other health care or services
provided under such plan for any purpose (other
than for the purpose of discovering and preventing
the spread of infection or contagious disease or for
the purpose of protecting environmental health), if
such person objects (or, in case such person is a
child, his parents or guardian objects) thereto on
religious grounds.”
In addition, the Medicaid program affirmatively covers
costs of health care the form of which is dictated by an
individual’s religious beliefs; see e.g. 45 C.F.R. 249.10
(b) (17) (ii). (authorizing Christian Science Services).
69
VII.
THE HYDE AMENDMENTS
34. Prior to the implementation of the 1977 Hyde
Amendment, federal matching funds were available for
all abortions for eligible individuals which a state chose
to include in its Medicaid plan. Some states, including
New York, provided reimbursement for all abortions for
eligible individuals. Other states, including Connecticut
and Pennsylvania, limited Medicaid payments to those
abortions for eligible individuals that were certified as
medically necessary.
35. The 1977 Hyde Amendment, Section 209 of Public
Law 94-439, provides that
“None of the funds contained 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.”
36. On October 22, 1976, this Court issued, and on
October 29, 1976, reaffirmed, a preliminary injunction
against implementation of the 1977 Hyde Amendment on
constitutional grounds. On July 29, 1977, the Supreme
Court ordered the judgment vacated and the case re-
manded to this Court for reconsideration in light of
Beal v. Doe, 97 S. Ct. 2366, and Maher v. Roe, 97 S.
Ct. 2376 (1977). | |
37. On July 28, 1977, this Court vacated the injunc-
tion and issued a new temporary restraining order
against the implementation of the 1977 Hyde Amend-
ment. This temporary restraining order was lifted on
August 4, 1977. Defendant Califano immediately imple-
mented the 1977 Hyde Amendment (“Exhibit A’’).
38. The Department of Health, Education and Wel-
fare failed to issue and make known any standards,
regulations or guidelines which clarify what abortions
will be federally reimbursed under the 1977 Hyde
Amendment standard.
70
89. State agencies administering the various state
medical assistance programs do not know which abor-
tions will be federally reimbursed under the 1977 Hyde
Amendment standard.
40. Medicaid providers and eligible pregnant women
do not know which abortions will receive federal reim-
bursement under the 1977 Hyde Amendment standard.
41. The defendant failed to advise the states of their
continuing obligations under Title XIX to reimburse for
medically necessary abortions or to enforce the same.
42. In response to implementation of the 1977 Hyde
Amendment most states adopted policies limiting reim-
bursement for abortions for the members of the plaintiff
class of women to those cases where it was necessary to
terminate a pregnancy which would endanger the life
of the woman if the fetus were carried to term.
43. Because of the vagueness of the language of the
1977 Hyde Amendment, the failure of defendant Califano
to provide clarifying regulations, and prior approval and
other procedural requirements adopted in some states,
many women in the plaintiff class have been and con-
tinue to be unable to obtain an abortion financed by
Medicaid even in situations in which the life of the
woman is endangered by the continuation of the preg-
nancy.
44. On December 10, 1977, the President signed a
continuing resolution authorizing Labor-HEW expendi-
tures through fiscal year 1978, containing a rider super-
seding the 1977 Hyde Amendment (the “1978 Hyde
Amendment”). The 1978 Hyde Amendment reads as
follows:
“None of the funds contained 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 pro-
cedures necessary for the victims of rape or incest,
when such rape or incest has been promptly reported
to a law enforcement agency or public health serv-
ice; or except in those instances where severe and
long-lasting physical health damage to the mother
71
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 ectopic
pregnancy. The Secretary shall promptly issue regu-
lations and establish procedures to ensure that the
provisions of this section are rigorously enforced.”
45. On December 10, 1977, defendant Califano an-
nounced the implementation of this amendment by mail-
ing the text of it to all state Medicaid agencies along with
a brief interpretative statement (“Exhibit B’’).
46. On information and belief, as of the filing of this
amended complaint, no state, except Alabama, has liberal-
ized its policy on the reimbursement of abortions in re-
sponse to the 1978 Hyde Amendment.
VII.
IRREPARABLE INJURY
47. As a result of the Hyde Amendments, the plain-
tiffs and the members of the classes they represent have
been and continue to be subjected to immediate and ir-
reparable harm, namely:
(a) Plaintiffs MCRAE, DoE, DoE, ROE and MoE
and others in the class of women have been and will
be refused Medicaid abortions and will be unable to
obtain the abortions they desire and/or which are
medically necessary without the relief sought in this
complaint. ;
(b) Drs. TERAN, HODGSON, BINGHAM, SAVAGE,
JACKSON and KOPLIK and members of the class of
physicians are, with rare exceptions, not able to per-
form such abortions without reimbursement and
have refused or will refuse and continue to refuse,
this treatment.
(c) Plaintiff PPNYC’s ability to serve Medicaid-
eligible women who seek abortions and who are un-
able to pay for them is placed in. jeopardy by the
12
Hyde Amendments. Plaintiff PPNYC will he fi-
nancially unable to serve such women if Medicaid
reimbursement should be cut off.
(d) Plaintiff women and members of their class
' who are discouraged, impeded and/or prevented from
obtaining abortions are subjected to the imposition
of one religious-belief about abortion. Some members
of the class of plaintiff women and of United Metho-
dist Women are restrained in the free exercise of
their religious beliefs that an abortion is necessary
or appropriate under the circumstances.
(e) The taxpayer plaintiffs are required to pay
for the added cost of services related to carrying
unwanted normal pregnancies to term; of treatment
of complications arising from self-induced and illegal
abortions as well as unwanted health- and life-
threatening pregnancies and their effects, and of
additional physician consultations and administrative
expenses.
IX.
SOCIAL SECURITY ACT CLAIMS
FIRST CAUSE OF ACTION
48. By allowing states to exclude state financed Medi-
id reimbursement for medically necessary abortions,
including those reimbursable under the Hyde Amend-
ments, defendant Califano violates Title XIX of the
Social Security Act which mandates that a state Medicaid
plan provide reimbursement for medically necessary hos-
pital and physician services provided to eligible indi-
viduals.
SECOND CAUSE OF ACTION
49. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 48.
50. The Hyde Amendments’ failure to provide for
reimbursement for all medically necessary abortions, and
defendant Califano’s failure to mandate state coverage
for those members of the plaintiff class of women who
73
are under twenty-one years of age, violates Title XIX
of the Social Security Act, 42 U.S.C. § 1396(a) (4) (B),
and the regulations promulgated thereunder.
THIRD CAUSE OF ACTION
51. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 50.
52. By permitting the states to eliminate Medicaid
reimbursement for abortions whether or not federally
reimbursable under the Hyde Amendments, Defendant
Califano violates the framework of Title XIX of the
Social Security Act, and particularly 42 U.S.C. 1396f,
and regulations promulgated pursuant thereto, assuring
that Medicaid assistance be provided consonant with and
not in violation of a person’s religious beliefs except in
cases of danger to the public health.
X.
CONSTITUTIONAL CLAIMS OF THE WOMEN
PLAINTIFFS: EQUAL PROTECTION, DUE
PROCESS AND PRIVACY
FOURTH CAUSE OF ACTION
58. Plaintiffs repeat and reallege ali of the allega-
tions of paragraphs 1 through 52.
54. The enactment or implementation of a Medicaid
program which provides payment for all medically neces-
sary physician and hospital services but excludes medi-
cally necessary abortion services denies plaintiff class of
women equal protection of the laws as guaranteed by the
Fifth Amendment to the Constitution.
FIFTH CAUSE OF ACTION
55. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 54.
56. Under the Social Security Act, Defendant Califano
routinely authorizes reimbursement of a substantial per-
74
centage of the cost of all pregnancy related care and
services for Medicaid-eligible women who choose to carry
their pregnancies to term. Such costs are paid by all
states which participate in the Medicaid program.
57. The Hyde Amendments’ prohibition of federa! re-
imbursement for the cost of a substantial proportion of
medically necessary abortion services for eligible women
who seek to terminate their pregnancies by abortion
creates an invidious classification which denies plaintiff
class of women due process and equal protection of the
laws guaranteed by the First, Fourth, Fifth and Ninth
Amendments to the Constitution.
SIXTH CAUSE OF ACTION
58. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 57.
59. The enactment or implementation of a Medicaid
program which provides payment for all medically neces-
sary physician and hospital services for eligible men but
excludes medically necessary abortion services for eligible
women constitutes an unlawful discrimination on the
basis of sex in violation of the due process and equal
protection of the laws guaranteed by the First, Fourth,
Fifth and Ninth Amendments to the Constitution.
SEVENTH CAUSE OF ACTION
60. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 59 and further allege as follows:
61. Under the Social Security Act, the federal govern- ©
ment provides 90% matching funds which together with
state funds pay the full cost of sterilization.
62. By denying payment for medically necessary abor-
tion services to Medicaid-eligible women, the Hyde
Amendments operate to coerce women to resort to irre-
versible sterilization in order to terminate an existing
pregnancy and/or to avoid the risk of a future pregnancy
which cannot be aborted, all in violation of the due
process and equal protection of the laws guaranteed by
75
the First, Fourth, Fifth and Ninth Amendments to the
Constitution.
EIGHTH CAUSE OF ACTION
63. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 62.
64. The Hyde Amendments on their face and as ap-
plied are vague and overbroad in violation of plaintiffs’
rights under the First, Fourth, Fifth and Ninth Amend-
ments to the Constitution.
NINTH CAUSE OF ACTION
65. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 64.
66. Under the Social Security Act the federal govern-
ment provides matching funds for all medically neces-
sary procedures covered by state plans and particularly
for all pregnancy related services including complications
from pregnancy and self-induced or illegal abortions.
67. By denying payment the Hyde Amendments
punish pregnant women for whom abortions are medi-
cally necessary in violation of the due process and equal
protection of the laws guaranteed by the First, Fourth,
Ninth and Fifth Amendments to the Constitution.
TENTH CAUSE OF ACTION
68. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 67.
69. The requirement of a two-physician certificate in
the 1978 Hyde Amendment impermissibly burdens the
fundamental right of plaintiff class of women to obtain
an abortion as guaranteed by the First, Fourth, Fifth
and Ninth Amendments to the Constitution.
ELEVENTH CAUSE OF ACTION
70. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 69.
ey a ee ee
76
71. Pregnant women who can pay the costs of med-
ically necessary abortion services can obtain such services.
72. On their face and as implemented, the Hyde
Amendments discourage and prevent doctors from per-
forming abortions necessary to terminate health- and life-
threatening pregnancies and encourage them to provide
unnecessary and dangerous treatment, such as a D & C
(dilation and curettage) or DES (di-ethylstilbestrol) to
prevent implantation, thereby causing doctors to engage
in conduct which could be deemed malpractice with re-
spect to paying patients. .
73. Black and third world women are disproportion-
ately represented among Medicaid-eligible women, and
the Hyde Amendments have a disparate impact on their
ability to obtain medically necessary abortions.
74. On their face and as applied, the Hyde Amend-
ments’ restrictions on funding of medically necessary
abortion services to eligible women constitute an invidious
and discriminatory classification based on poverty, race
and minority status, which deprives and punishes the
plaintiff class of women in violation of due process and
equal protection of the law guaranteed by the First,
Fourth, Fifth and Ninth Amendments to the Constitu-
tion.
TWELFTH CAUSE OF ACTION
75. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 74.
76. The reporting requirements of the 1978 Hyde
Amendment violate the privacy, due process, and equal
protection rights of those members of plaintiff class who
are victims of rape or incest in violation of the First,
Fourth, Fifth and Ninth Amendments to the Constitution.
717
XI.
CONSTITUTIONAL CLAIMS OF PHYSICIAN PLAIN-
TIFFS AND PPNYC: EQUAL PROTECTION,
DUE PROCESS AND PRIVACY
THIRTEENTH CAUSE OF ACTION
77. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 76.
78. Many pregnant women, including the named
plaintiffs, and their class have consulted and will con-
tinue to consult Drs. Teran, Hodgson, Bingham, Savage,
Jackson, Koplik and the class of physicians and PPNYC.
For many such women such physicians would, in the exer-
cise of their best professional judgment, agree that abor-
tions are medically necessary and would perform the
abortions sought by such women.
79. Defendant’s prohibition of reimbursement to the
members of the physician class for such abortions per-
formed upon Medicaid patients who request them deprive
plaintiff class of physicians of the right to practice medi-
cine in accordance with their best medical judgment as
guaranteed by the First, Fourth, Fifth and Ninth
Amendments to the Constitution.
80. The Hyde Amendments infringe upon the right
of plaintiffs class of physicians and PPNYC to give and
their patients’ right to receive necessary medical treat-
ment and advice, in accordance with accepted medical
standards, pertaining to the decision whether to termin-
ate a pregnancy, in violation of the First, Fourth, Fifth
and Ninth Amendments to the Constitution.
81. Implementation of the Hyde Amendments by the
defendant deprives plaintiff class of physicians and
PPNYC of substantial income from abortion services
normally rendered to Medicaid-eligible women, in viola-
tion of the right of members of plaintiff class of phy-
sicians and PPNYC to render medical services and to
receive fees for such services, all without due process of
law, in violation of the Fifth Amendment to the Con-
stitution.
78
FOURTEENTH CAUSE OF ACTION
82. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 81.
88. The class of physicians is subject to federal and
state civil and criminal sanctions for certifications
deemed to be improper or fraudulent under the Hyde
Amendment standards. There are no sanctions on the
class of physicians should they fail to certify a qualify-
ing abortion.
84. The Hyde Amendments are vague and overbroad
in violation of plaintiffs’ rights under the First, Fourth,
Fifth and Ninth Amendments to the Constitution.
FIFTEENTH CAUSE OF ACTION
85. Plaintiffs repeat and reallege all of the allegations
of paragraphs 1 through 84.
86. The 1978 Hyde Amendment requires a two-physi-
cian certificate in cases where severe and long-lasting
physical health damage to the mother would result if
the pregnancy were carried to term.
87. This requirement impermissibly infringes on a
doctor’s right to practice medicine in accordance with his/
her best medical judgment as guaranteed by the First,
Fourth, Fifth and Ninth Amendments to the Constitution
and is in violation of Title XIX of the Social Security
Act.
XII.
ESTABLISHMENT AND FREE EXERCISE CLAIM
SIXTEENTH CAUSE OF ACTION
88. Plaintiffs repeat and reallege all of the alegations
of paragraphs 1 through 87.
89. The Hyde Amendments constitute an exercise of
the taxing and spending powers of the Congress under
Article 1, Section 8 of the Constitution.
90. The purpose and effect of the Hyde Amendments
is to impede and/or prevent indigent pregnant women
from obtaining abortions.
79
91. The Hyde Amendments constitute enactment into
law of one religious belief respecting abortions and the
nature of the fetus and the imposition of that religious
view on Medicaid-eligible women who would otherwise
choose abortion in accordance with their religious or non-
religious beliefs.
92. There is no secular justification for th
Amendments. oo
_ 93. The enactment of this religious view of abortion
into law as exemplified by the Hyde Amendments has
created and threatens further excessive entanglement and
political divisiveness.
94. The Hyde Amendments discourage, impede and/or
prevent plaintiff women and their class from obtaining
safe, legal abortions in accordance with the different
teachings of the religions to which they adhere and/or
with the dictates of their conscience.
95. The Hyde Amendments, on their face and as ap-
plied violate the prohibitions of the First Amendment
against laws respecting the establishment or religion and
interfering with the free exercise thereof.
XIII.
PRAYER FOR RELIEF
WHEREFORE, plaintiffs pray that:
(1) This Court declare that the Hyde Amendments
— and as applied are unconstitutional, null and
void.
(2) This Court enter preliminary and permanent in-
junctions pursuant to Rule 65 of the Federal Rules of
Civil Procedure enjoining the defendant, his successors
in nei was employees, and all other persons
in concert wi im from giving any effect
a Amendment. iu eas we
3) This Court, in the alternative, declare that d
; e-
spite the Hyde Amendments, Title XIX of the Social
Security Act mandates that states continue to reimburse
for medically necessary services, and
80
(4) This Court enter preliminary and permanent in-
junctions pursuant to Rule 65 of the Federal Rules of
Civil Procedure requiring the defendant, his successors
in office, agents and employees and all other persons In
concert with him to disapprove state Medicaid plans
which limit reimbursement for medically necessary
abortions.
(5) This Court award damages for reimbursement
unlawfully withheld under the Hyde Amendments.
(6) This Court award plaintiffs their costs herein,
attorneys fees, and grant them such other and further
relief as this Court may deem just, proper and equitable.
Dated: January 5, 1977
GREENBAUM, WOLFF w ERNST
437 Madison Avenue
New York, NY 10022
212/758-4010
By: /s/ Eve W. Paul
HARRIET PILPEL
EvE W. PAUL
FREDERIC S. NATHAN
LAURENCE VOGEL
Attorneys for Plaintiff PLANNED
PARENTHOOD OF NEW YORK CITY,
INC.
SyLv1A A. LAW
40 Washington Square South
New York, NY 10012
212/598-7642
/s/ Rhonda Copelon
RHONDA COPELON
NANCY STEARNS
Center for Constitutional Rights
853 Broadway
New York, NY 10003
212/674-3303
Dah Tattle an be? 6 ARE. a Ore ne
81
JANET BENSHOOF
JILL LAURIE GOODMAN
ELLEN LEITZER
NADINE TAUB
American Civil Liberties Union
22 Kast 40th Street
New York, NY 10016
212/725-1222
By: /s/ Janet Benshoof
JANET BENSHOOF
Attorneys for Women and Doctor
Plaintiffs and for the Women’s
Division of the Board of Global
Ministries of The United Meth-
odist Church and its Members.
82
EXHIBIT “A”
[SEAL]
HEW NEWS
U.S. DEPARTMENT OF HEALTH, EDUCATION,
AND WELFARE
FOR IMMEDIATE RELEASE
August 4, 1977
iS aiaed Marcus .. (202) 245-6738
Winston . (202) 245-6343
Statement
by
Joseph A. Califano, Jr.
Secretary of Health, Education, and Welfare
Section 209 of Public Law 94-439, the Labor-HE W
Appropriation Act of 197 7—popularly known as the
Hyde Amendment—provides that:
“None of the funds contained 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.”
Last October, a Federal District Court issued an order
enjoining the Department from enforcing the Hyde
Amendment. That injunction has now been dissolved.
Accordingly, the Department will provide Federal finan-
cial participation in the cost of abortions only where the
attending physician, on the basis of his or her profes-
sional judgment, has certified that the abortion is nec-
essary because the life of the mother would be endangered
if the fetus were carried to term.
.
PR ar nation
83
The legislative history of the Hyde Amendment, how-
ever, makes clear that the Amendment does not bar
funding for certain medical procedures. Specifically, the
Conference Committee Report interpreting the Hyde
Amendment states as follows:
“Nor is it the intent of the Conferees to prohibit
medical procedures necessary for the termination of
an ectopic pregnancy or for the treatment of rape
or incest victims; nor is it intended to prohibit the
use of drugs or devices to prevent implantation of
the fertilized ovum.” (HR Rep. No. 95-1555, at p. 3)
Thus Federal funds will continue to be available for
such medical procedures. “Treatment for rape or incest
victims” is, however, limited for these purposes to prompt ~
treatment before the fact of pregnancy is established.
As in all cases, Federal funds for abortions for rape
or incest victims will be available where the physician
has certified that the life of the mother would be en-
dangered if the fetus were carried to term.
(The Department is transmitting this statement to all
State Medicaid agencies, HEW regional offices, Public
Health Service Hospitals and grantees, and State medical
associations. The statement will be published in the
Federal Register.)
84
EXHIBIT “B”
[SEAL]
HEW NEWS
U.S. DEPARTMENT OF HEALTH, EDUCATION,
AND WELFARE
FOR IMMEDIATE RELEASE
Saturday, December 10, 1977
Winston: (202) 245-6343
Statement by
Joseph A. Califano, Jr.
Secretary of Health, Education, and Welfare
The President signed a continuing resolution today
authorizing Labor-HEW expenditures through the fiscal
year 1978. This resolution contains language, which su-
persedes Section 209 of Public Law 94-439, the Labor-
HEW Appropriations Act of 1977. Section 209 has po; «
ularly been referred to as the Hyde Amendment.
The new language is as follows:
“Provided, That none of the funds provided for in this
paragraph shall be used to perform abortions except
where the life of the mother would be endangered if the
fetus were carried to term; or except for such medical
procedures necessary for the victims of rape or incest,
when such rape or incest has been reported promptly to
a law enforcement agency or public health service; or ex-
cept in those instances where severe and long-lasting
physical health damage to the mother would result if
the pregnancy were carried to term when so determined
by two physicians.
“Nor are payments prohibited for drugs or devices
to prevent implantation of the fertilized ovum, or for
medical procedures necessary for the termination of an
ectopic pregnancy.
85
“The Secretary shall promptly issue regulations and
establish procedures to ensure that the provisions of this
section are rigorously enforced.”
Accordingly, from this point-forward, the Departmen‘
will provide Federal financial participation in the cost of
abortions, including those following rape or incest, where
a physician, on the basis of his or her professional judg-
ment, has certified in writing that the abortion is nec-
essary, because the life of the mother would be en-
dangered if the fetus were carried to term or where two
physicians, on the basis of their professional judgment,
have certified in writing that severe and long-lasting
physical health damage to the mother would result if
the pregnancy were carried to term.
In addition, when a case of rape or incest has been
reported promptly to a law enforcement agency or public
health service, the Department will provide Federal fi-
nancial participation in the cost of medical procedures
where a physician, on the basis of his or her professional
judgment, has certified in writing that such procedures
are necessary for the victim of such rape or incest.
Federal funding will also be provided for drugs or
devices to prevent implementation of the fertilized ovum
and for medical procedures where a physician, on the
basis of his or her professional judgment, has certified
in writing that such procedures are necessary for the
termination of an ectopic pregnancy.
I have asked the Genera’ Counsel to prepare regula-
tions and establish procedures as soon as possible to en-
sure that the foregoing limitations established by Con-
gress are rigorously enforced.
As I promised the Senate during my confirmation
hearings, I will carry out the laws passed by the Congress
poi best of my apility in this sensitive area, as in all
others.
(The Department is transmitting this statement to all
State Medicaid agencies, HEW regional offices, Public
Health Service Hospitals and grantees, and State medi-
cal associations. The statement will be published in the
Fedzral Register.)
86
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
76 C 1804
CorA MCRAE, ET AL., PLAINTIFFS
—against—
SECRETARY OF THE UNITED STATES DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE, DEFENDANT
—and—
SENATORS JAMES L. BUCKLEY, ET AL.,
INTERVENOR-DEFENDANTS
JUDGMENT
This action came on for trial before the Court, the
Honorable John F. Dooling, Jr., District Judge, presid-
ing, and the issues having been duly tried, and a decision
having been duly rendered it is
ORDERED, ADJUDGED and DECLARED that
1. The plaintiffs and plaintiffs intervenors are entitled
to maintain this action as a class action pursuant to
F.R.C.P. Rule 23(a), (b) (1) and (2) on behalf of
medicaid-eligible pregnant women desiring and denied
medicaid abortions because of the federal legislation re-
stricting abortion funding, including medicaid-eligible
pregnant women whose attending physicians have ad-
vised them that abortion is medically necessary in their
cases and who have been denied medicaid abortions be-
cause of the federal legislation restricting abortion fund-
ing, and on behalf of providers of abortions, including
providers of medically necessary abortions.
2. Section 209 of Public Law 94-439 of September 30,
1976, 90 Stat. 1434, Section 101 of Public Law 95-205
of December 9, 1977, 91 Stat. 1460, Section 210 of Public
Law 95-480 of October 18, 1978, 92 Stat. 1586, and Sec-
tion 109 of Public Law 96-103 of November 20, 1979,
87
are unconstitutional as applied to abortions that are
necessary in the professional judgment of the pregnant
woman’s atending physician exercised in the light. of all
factors, physical, emotional, psychological, familial, and
the woman’s age, relevant to the health-related well-
being of the pregnant woman.
3. Defendant, her successors in office, agents, servants,
employees, attorneys and those other persons in active
concert and participation with her who receive actual
notice of this order by personal service or aeowies
A. Cease to give effect to Section 209 of Public Law
94-439, Section 101 of Public Law 95-205, Section 210
of Public Law 95-480, and Section 109 of Public Law
96-103 so far as they forbid the making of medicaid pay-
ments for abortions performed by qualified medicaid pro-
viders in cases in which the abortions are necessary in
the professional judgment of the pregnant woman’s at-
tending physician ;
B. Continue to authorize the expenditure of federal
matching funds for medically necessary abortions pro-
vided by duly certified providers for medicaid-eligible
women at the proportionate level and in accordance with
the standard of medical necessity set forth in subpara-
graph 2 above; and
C. Forthwith communicate the substance of this Judg-
ment to the Regional Directors of the Department of
Health, Education and Welfare, with instructions that
they promptly disseminate that communication to all
State medicaid authorities within their regions, with in-
structions that they in turn communicate it to all local
medicaid authorities and providers of pregnancy-related
care to medicaid-eligible women.
Brooklyn, New York |
January 15, 1980 / a
Approved
January 15, 1980
/s/ John F. Dooling «
JOHN F. DOOLING/
US.D.J.
4
/
88
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
76 C 1805
NEW YORK CITY HEALTH AND HOSPITALS CORPORATION,
PLAINTIFF
—against—
SECRETARY OF THE UNITED STATES DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE, DEFENDANT
JUDGMENT
This action came on for trial before the Court, the
Honorable John F. Dooling, Jr., District Judge, presid-
ing, and the issues having been duly tried, and a deci-
sion having been duly rendered, it is
ORDERED, ADJUDGED and DECLARED that
1. Plaintiff is a qualified provider of medicaid serv-
ices and provides medically necessary abortional services
to medicaid-eligible women ;
2. Section 209 of Public Law 94-489 of September 30,
1976, 90 Stat. 1434, Section 101 of Public Law 95-205
of December 9, 1977, 91 Stat. 1460, Section 210 of Public
Law 95-480 of October 18, 1978, 92 Stat. 1586, and
Section 109 of Public Law 96-103 of November 20, 1979,
are unconstitutional as applied to abortions that are
necessary in the professional judgment of the pregnant
woman’s attending physician exercised in the light of all
factors, physical, emotional, psychological, familial and
the woman’s age, relevant to the health-related well-
being of the pregnant woman;
8. Defendant, her successors in office, agents, servants,
employees, attorneys and those other persons in active
89
concert and participation with her who receive actual
notice of this order by personal service or otherwise.
A. Cease to give effect to Section 209 of Public Law
94-439, Section 101 of Public Law 95-205, Section 210
of Public Law 95-480, and Section 109 of Public Law
96-103 so far as they forbid the making of medicaid
payments for abortions performed by qualified medicaid
providers in cases in which the abortions are necessary
in the professional judgment of the pregnant woman’s
attending physician;
B. Continue to authorize the expenditure of federal
matching funds for medically necessary abortions pro-
vided by duly certified providers for medicaid-eligible
women at the proportionate level and in accordance with
the standard of medical necessity set forth in subpara-
graph 2 above; and
C. Forthwith communicate the substance of this Judg-
ment to the Regional Directors of the Department of
Health, Education and Welfare, with instructions that
they promptly disseminate that communication to all
State medicaid authorities within their regions, with
instructions that they in turn communicate it to all local
medicaid authorities and providers of pregnancy-related
care to medicaid-eligible women.
Brooklyn, New York
January 15, 1980
/s/ Richard H. [Illegibie]
RICHARD H. [ILLEGIBLE]
Approved
January 15, 1980
/s/ John F. Dooling
JOHN F. DOOLING
U.S.D.J.
90
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
76 Civ. 1804
CokA MCRAE, ET AL., PLAINTIFFS
—against—
JOSEPH A. CALIFANO, JR., ET AL., DEFENDANTS
STIPULATION
It is hereby stipulated and agreed by the undersigned
parties that the amended complaint in this action filed
January 9, 1978, should be amended as follows:
All allegations and claims should include and in-
corporate a challenge to the Rider to the 1978-79
HEW-Labor Appropriations Bill passed on October
14, 1978 entitled Public Law 95-480. No responsive
pleadings are necessary and all evidence and briefs
submitted are hereby deemed to incorporate the
new rider.
/s/ Janet Benshoof
JANET BENSHOOF
American Civil Liberties
Union Foundation
22 East 40th Street
New York, New York 10016
For All Plaintiffs
paneer een
So Ordered:
/s/ John F. Dooling
JOHN F. DOOLING
U.S.D J.
Dated: November 28, 1978
91
/s/ Richard P. Caro
/8/
/s/
RICHARD CARO
Assistant United Statets
Attorney for the Eastern
District of New York
225 Cadman Plaza
Brooklyn, New York 11201
For Defendant Califano
Gerald Bodell
GERALD BODELL
102 East 35th Street
New York, New York 10016
For Defendant-Intervenors
_ Buckley, et al.
A. Lawrence Washburn
A. LAWRENCE WASHBURN
117 Pennsylvania Avenue
Brooklyn, New York 11207
For Defendant-Intervenor
Pernicone
FD RE OR Fike © A a oe a
92
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
CorRA MCRAE, ET AL., PLAINTIFFS
—against—
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