# Appendix — Harris v. McRae > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0569%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 448 U.S. 297 ## Text 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 | 313 JO uonrarydks us : a0) SI UANVAdS MLL Ucn HIN Ordust ¢ _ eas ot pute asnojt 2ut 0 quaui9iv3s ZUIot ‘passed ysnf "EGFOT Pn arist:55 et aah gts OU gnuqns ‘rasodand seyre 403 ‘QV IT ‘ING 92 Uo [TO PTIU SNOGULITXG yen SIwsUss Pring. 2 TL LG OF goquo dss Surpia svad poms Oc) apNpouy pue sMIvMi9s J1OY. PUsdXd pus eoenseet oreo tartiee “ter g .° pigeeosh PHIT{II pus ‘gawyjas, DUR UONT. 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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— JOSEPH A. CALIFANO, JR., SECRETARY, UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, DEFENDANT —and— SENATOR JAMES L. BUCKLEY, ET AL., INTERVENOR-DEFENDANTS MEMORANDUM and ORDER * * * * 2. The defendant Secretary has questioned whether the case is to be considered a class action, in light of the vacatur of the 1976 injunction by the Supreme Court, and plaintiffs show from the record that the successive amendments of the complaint have been made on the basis that the case has been a class suit from the be- ginning and has been continued as such. The original Memorandum and Order on the injunction motion de- termined the class and standing issues and it had been assumed that there was no issue on these points. How- ever, it may be best to go over the ground again. The evidence has left no doubt that the class of Medi- caid-eligible women who, with their physicians, have de- cided to terminate their pregnancies before viability is too numerous for all to be joined in this action, and that the class of providers of the medical service required for the performance of such legal abortion services who are | es re ale ee ee ek ee te el dt ee ee Bt eS ee > Oe 93 qualified and willing to render such service is too numer- ous for all to be joined in the action. The issues of law and the issues of fact relevant to the determination of the issues of law presented by the case are common to all members of each class, and the claims of the plaintiff members of each of the classes are typical of the claims of ali other members of the class. The plaintiffs, as they have been represented in this case, have fairly and ade- quately protected the interests of the classes and will con- tinue to do so. The action is one within Rule 23(b) (1) and (2) of the Federal Rules of Civil Procedure. The action has to this date in fact been maintained as a class action and it should continue to be so maintained. The two classes are defined substantially as described in the amended complaint filed January 9, 1978: 1, The class of pregnant or potentially pregnant women who are eligible for medical assistance pro- vided under their state plans, who with their phy- sicians have decided on abortions; for whom abor- tions are medically necessary; who have been, are or will be prevented or impeded in obtaining medi- cal termination of their pregnancies by Public Law 94-439, Section 209, Public Law 95-205, Section 101, and Public Law 95-480, Section 210. The class includes women of all religious and non- religious persuasions and beliefs who have, in ac- cordance with the teaching of their religion and/or the dictates of their conscience determined that an abortion is necessary; and 2. The class of duly licensed and Medicaid certified providers of abortional services to eligible women who are prevented or impeded from performing and/or certifying abortions for the class of women represented by the plaintiff women because of the lack of Medicaid reimbursement. 8. Counsel will have observed that the page number- ing of the transcripts for September 6 and December 4, 1978, duplicates that of earlier transcripts. In order to make certain that there will be no confusion in citation, SR RE eae ener ne ee 94 I have asked the Court Reporter to renumber the pages of the September 6, 1978 transcript through the conclu- sion of Congressman Hyde’s testimony. It is so ORDERED. Brooklyn, New York January 29, 1979. /s/ John F. Dooling JOHN F. DOOLING U; &- a. 95 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 76 Civ. 1804 (JFD) CorA MCRAE, ET AL., PLAINTIFFS —against— PATRICIA HARRIS, ET AL., DEFENDANTS ORDER AMENDING COMPLAINT Upon the agreement of the parties, it is hereby ordered that the Amended Complaint in this action filed January 9, 1978, shall be amended as follows: All allegations and claims shall include and incor- porate a challenge to the rider to the Fiscal Year 1980 Labor-HEW Appropriations enacted by joint resolution (H.J. Res. 440), and entitled Pub. L. No. 96-123, § 109. It is further ordered that no responsive pleadings are necessary and all evidence and briefs submitted are hereby deemed to incorporate the new rider. /s/ John F. Dooling, Jr. JOHN F. DOOLING, JR. U.S.D.J. Dated: Brooklyn, New York January 15, 1980 96 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 ORDER The parties stipulated the authenticity of Exhibits Nos. 300-454 and 456-471 for identification, and defendant and defendant-intervenors objected to their receipt in evi- dence on grounds of relevancy and competency; final rul- ing on their admissibility was reserved until the de- termination of the case on the merits because a part of the defense contentions was that the dispositive legal is- sues in the case required decision of the case without reference to the existence or content of the types of ma- terial embraced in the exhibits, and plaintiffs contended that the First Amendment issues could not be resolved without considering the nature and content of the exhibits and their place in the movement for the adoption of a “pro-life amendment” and the successive “Hyde Amend- ments.” As indicated by the decision, the objection to the receipt of the exhibits in evidence has been overruled and they have been considered and relied upon to the ex- tent. indicated in the decision; to the extent that, the ex- 97 hibits are or contain hearsay the i y have not been received and considered for the truth of the matter asserted but have been received and considered on the basis that their publication and dissemination formed a part of the abor- tion debate and were an element of i pew the ambience of the It is so ORDERED. Brooklyn, New York February 14, 1980 /s/ John F. Dooling, Jr. JOHN F. DOOLING, Jr. Uv. 8. DB. Fg, 98 RT UNITED STATES DISTRICT COU EASTERN DISTRICT OF NEW YORK 76 Civ. CorRA MCRAE, ET AL., PLAINTIFFS Vv. JOSEPH A. CALIFANO, JR., DEFENDANT AFFIDAVIT STATE OF MICHIGAN ) Ss. : COUNTY OF WASHTENAW ) JOHAN W. Euiot, M.D., having duly affirmed, deposes and says: pe re ; : ae we . I am a physician with special skills in e c of pation: pia the performance of abortions, and have Board certification in Pediatrics and in Ergin Medicine, with specialization in maternal and i he J" and adolescent medicine. My offices are at the a o> ment of Community Health Services, School of Public Health, University of Michigan, and at 912 North Main Street, Ann Arbor, Michigan. I reside at 1027 Miller Arbor, Michigan. +e “—? = a member of the class of Medicaid-certified providers of abortional services to Medicaid-eligible 1s ie making this Affidavit in support of a tempor- ary restraining order and preliminary injunction to pre- vent the imminent cut-off of federal reimbursement for abortions if the Hyde amendment is implemented. a ee 99 4. I am making this Affidavit to call to this Court’s attention the impact the implementation of the Hyde Amendment will have in the State of Michigan. 5. Currently in the State of Michigan there is federal reimbursement for abortions for Medicaid-eligible women under Title XIX of the Social Security Act. 6. In 1975 the Michigan State Legislature enacted legislation restricting payment for abortion from Medi- caid funds to cases of therapeutic abortion for “medical necessity.” The Department of Social Services issued a bulletin on this subject (10/22/75) stating that “docu- mentation of medical necessity” must be provided for therapeutic abortions. The Executive Director of the Washtenaw County League for Planned Parenthood, Carol Peacock, called the Department of Social Services in Lansing to ask what constituted “medical necessity.” She was told that this referred to medical conditions only, and did not include emotional or mental health considerations, and that therapeutic abortion applied to “life-death situa- tions” only, where “the mother is in danger of losing her life.” Shortly thereafter, the Attorney General of Michi- gan, Frank Kelley, issued a ruling that the new law was not in conformity with the United States Supreme Court decision in Roe versus Wade, and that the law was there- fore judged to be unconstitutional and therefore inopera- tive. The Hyde amendment passed by Congress under re- view by this Court bears a considerable resemblance to the Michigan legislation of 1975. I would therefore ex- pect, if it were put in effect, that the Michigan Depart- ment of Social Services would issue equally restrictive interpretive regule‘ions. The result would very probably be that nearly all Michigan Medicaid patients needing and desiring an abortion would be denied payment for it under Medicaid. 7. I seek to represent both the claims of the class of doctors, and the claims of the class of pregnant Medi- caid-eligible women. 8. I am the Medical Director for the Washtenaw County League for Planned Parenthood Clinic located at 912 North Main Street, Ann Arbor, Michigan. This ee ee a ee Fae WK Pee 100 clinic is incorporated as a nonprofit medical clinic which provides abortion, contraceptive and minor gynecological care to women, and vasectomy for men. Last year I per- formed 872 abortions. The clinic performed 2533 abor- tions. Approximately six percent of these were reim- bursed under Title XIX. About six percent of the income of the clinic ($26,600) is from federally reimbursed abor- tions. 9. If the Hyde Amendment is not restrained, I and other physicians at the Washtenaw County League for Planned Parenthood will have to refuse to do virtually any abortions for Medicaid-eligible women becase the Washtenaw County League for Planned Parenthood will receive no reimbursement, and this agency can afford to do very few free abortions. We shall be denying many poor women abortions I consider medically necessary. However, we would have to increase our fees for all women seeking abortions. 10. I and two other physicians on the staff of the Washtenaw County League for Planned Parenthood treat many pregnant Medicaid-eligible women who seek abor- tions which are medically necessary for many reasons. For example, I present summaries of five cases: Case 1. A 19-year-old woman was threatened with a knife and was raped by an unidentified tall man on a less- traveled residential street, at night. Because there had been a series of rapes in the area within the past month, she was terrified that she might be targeted for further attack if she attempted to re- port it. Two months later, pregnancy symptoms forced her to seek help. Because she was currently jobless and without income, she was helped to apply for Medicaid. Her abortion was uncomplicated, but she was given supplementary counselling, both be- fore and after the procedure to assist her in emo- tional adjustment to this traumatic experience. 101 Case 2. A 33-year-old mother of three children was fur- loughed from the state mental hospital, for weekends at home with her family, after nine months of treat- ment for a cyclic depressive state for which she had been under treatment for several years. Although she had been prepared for her home furlough by fitting with a diaphragm, and used it conscientiously, she became pregnant, apparently on her second visit home. The family had low income, as the husband was only intermittently employed, and the family already received welfare assistance. The patient was much disturbed at discovery of the pregnancy and her doctors judged it definitely inadvisable for her mental health to try to carry the pregnancy to term. With Medicaid support she was promptly given an abortion, with careful counselling. She recovered quickly and well, and seemed to be continuing her progressive mental health improvement when last seen two months later. Case 8. A 30-year-old woman was greatly burdened by care of two retarded children. She urgently re- quested an abortion because she found herself un- expectedly pregnant despite use of an intrauterine device. She feared that this pregnancy might pro- duce another retarded child, and that even if the child were normal, the burdens of care for the two older retarded children would deprive her of time and energy to give the new child the physical care and loving attention needed for normal growth. Her pregnancy was terminated uneventfully, with Medi- caid financial assistance, and she was provided with information and referred for a tubal ligation, at her request. Case 4. A young woman, 1€ years old, came to the clinic in great distress, with knowledge, permission and support of her mother, but without knowledge of her ne 102 father or foster brother. She requested an early abortion with deep and bitter regret, as the preg- nancy was the result of a momentary lapse of self control in relation to her foster brother, who was not a blood relation, and with whom she had fallen deeply in love. She recognized that there was no pos- sibility at all of carrying through with a marriage in this situation, and that if the pregnancy were known to her father and foster brother, very severe emotional ‘eactions would ensue which were likely to split the family asunder, with great mental anguish for all. The family was not well off, and was regis- tered already for Medicaid assistance, so that it was possible to terminate this pregnancy in a confiden- tial manner with Medicaid financing. The mental health of this young woman, both present and future, and the integrity of this family, were preserved. Case 5. A 14-year-old deaf young woman with juvenile diabetes was brought by her mother for termina- tion of a pregnancy that resulted from a transient affair with a young man who took advantage of this socially handicapped young woman. While the diabetes was under adequate control and a preg- nancy could quite possibly have been successfully managed with good and intensive obstetric care, there was clearly increased risk to this young woman and to her infant if the pregnancy were allowed to continue. There would, in addition, have been inter- ruption of her schooling, and impairment of her emo- tional adjustment, as she was greatly distressed by the reality of her situation and very much wanted the abortion. It was carried out with Medicaid as- sistance, since her mother was divorced and already receiving welfare assistance. Minor details of these cases have been altered or omitted so as to make specific identification of persons very un- likely. a . NO SO mem) 103 These are several examples of abortions which I con- sider medically necessary, but which I have to refuse to do if the Hyde Amendment is implemented, because the woman’s life was not in danger in any of these cases. 11. The Washtenaw County League for Planned Parenthood, of which I am the Medical Director, is the only provider for Medicaid abortions in Washtenaw County, with the exception of a small number of very sick women, whose pregnancies cannot safely be ter- minated in a clinic. If the Hyde Amendment is imple- mented, approximately 150 Medicaid-eligible women in the area who need abortions will be denied services per year. The only other provider, the University Hospital, will have great financial difficulty in providing abortions for the very sick women now cared for there, if the Hyde Amendment is implemented. I don’t know of any chari- table institutions or other organizations which will be able to provide free abortions for all those women who need them, much as they might wish to. 12. I also feel that the unavailability of safe legal abortion will put an unconscionable pressure on poor women to avoid pregnancy at all costs, thereby coercing them into being sterilized, at an earlier age than they might really be ready for this step. 13. I consider the cut-off of federal funds for abor- tions to be an unconscionable interference with my ability to render necessary medical treatment and the right of my Medicaid-eligible patients to receive it. I consider this impending cut-off of funds to be a violation of my con- stitutional rights as well as those of my pregnant pa- tients. 14. If a restraining order is not granted by this Court, the Washtenaw County League for Planned Parenthood will suffer irreparable harm, both financially and profes- sionally, in what it will be unable to render some of its patients the medical care they need, and it will lose approximately six percent of its income. 15. Pregnant Medicaid-eligible patients will also suffer irreparable harm if a restraining order is not granted. I believe, in Washtenaw County alone, up to 150 Medi- 104 caid-eligible women who need abortions will seek cheap, illegal abortions, try to self-abort, or try to carry un- wanted and health-threatening pregnancies to term. Deaths and serious health problems are likely to result from these procedures. 16. A temporary restraining order and preliminary injunction was sought previously from this Court, and was granted. This present motion involves new con- siderations arising from the Supreme Court’s order of June 29, 1977. Since the Supreme Court order of June 29, I have not made a similar application to this or any other court. 17. Because of the imminence of the irreparable harm that would be caused by the implementation of the Hyde Amendment, I am advised by my attorneys that it may be necessary ‘to proceed by order to show cause. WHEREAS, affiant respectfully moves this Court for a temporary and preliminary injunction against the im- plementation of the Hyde Amendment. /s/ Johan W. Eliot, M.D. JOHAN W. ELIOT, M.D. Affirmed before me this 24th day of July, 1977 DUANE G. WEBER Notary Public, Washtenaw County, Mich. My Commission Expires August 18, 1979 /3s/ Duane G. Weber DUANE G. WEBER Notary Public 105 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 76 Civ. CorA MCRAE, ET AL., PLAINTIFFS Vv. JOSEPH A. CALIFANO, JR., DEFENDANT AFFIDAVIT STATE OF CONNECTICUT ) ) 98: COUNTY OF NEW LONDON ) Mary Dok, being duly sworn deposes and says: 1. I reside at 48 Franklin Street, New London, Con- necticut, and I am eligible for Medicaid through the Con- necticut Department of Social Services. 2. 1 am 19 weeks pregnant and want to have an abortion. I am making this Affidavit to intervene and for a temporary restraining order to restrain the im- plementation of the Hyde Amendment. 3. I am 19 years old. I am not married. I have 4 children, aged 5 years, 4 years, 3 years, and 11 months old. 4. On July 29, 1977, I went to the office of Dr. David Bingham at 159 Sachem Street, Norwich, Connecticut, to request an abortion. He informed me that a new law may prohibit any federal or state reimbursement for abortions except those necesary to save the life of the mother and that they cannot admit me to the hospital to do this operation unless payment to the hospital is made in advance. ore eae, ole at Ey Sh sy $iae ms a : x at Taha ge sat zy te Moopet haerrk =—2)., Jo erie era Ns or. oak ry BS oP nhs AE ee I a a Re ee se pe™ ip, fe Pee bee ee es “ae. eee ACE Tees ee LSE TE 6 Et yaar Bete, - 7 tor Sys 106 5. I cannot afford to pay for an abortion myself, and without Medicaid reimbursement, I cannot obtain a safe, legal abortion. 6. I have been told by Dr. Bingham that he can sched- ule an abortion for me if the Hyde Amendment does not go into effect and they are assured of reimbursement. 7. If Iam unable to obtain an abortion at the hospital, I will try to end the pregnancy in any way I can. 8. If I am unable to end the pregnancy, I believe I may take my own life. MARY DOE (not my real name) /s/ Mary Doe Sworn to before me this 29th day of July, 1977 Norwich, New London County, Connecticut /s/ Harry Swetsburg HARRY SWETSBURG Notary Public July 29, 1977 sini mee 107 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 76 Civ. CorA MCRAE, ET AL., PLAINTIFFS Vv. JOSEPH A. CALIFANO, JR., DEFENDANT AFFIDAVIT STATE OF CONNECTICUT ) ) COUNTY OF NEW LONDON ) Dr. David B. Bingham, being duly sworn, deposes and Says: 1. I am a member of the class of doctors in this action. 2. I am engaged in private practice at 159 Sachem Street, Norwich, Connecticut. 3. I have examined Mary Doe and find she is 19 weeks pregnant. I feel an abortion is medically necessary for her because of an overt depression with suicida] thoughts and because I believe she would try to terminate the pregnancy herself if unable to obtain a safe abortion. 4. If a restraining order is not obtained and the Hyde Amendment goes into effect, I will not be able to do an abortion on Mary Doe because I will be unable to admit her to the hospital without guaranteed payment for the hospitalization. 5. I feel that without an abortion Jane Doe risks se- rious and permanent health problems if she is forced to carry the pregnancy to term. She is not covered by the Hyde Amendment, however, because I believe I could pre- ———e ew 108 vent a suicide, and could prevent fatal complications of a self-induced abortion. Dr. DAVID B. BINGHAM /s/ Dr. David B. Bingham Sworn to before me this 29 day of July, 1977 Norwich, New London County, Connecticut /s/ Harry Swetsburg HARRY SWETSBURG Notary Public July 29, 1977 ~~ ao 109 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 76 Civ. CorA MCRAE, ET AL., PLAINTIFFS Vv. JOSEPH A. CALIFANO, JR., DEFENDANT AFFIDAVIT STATE OF MINNESOTA ) SS. 4 COUNTY OF RAMSEY ) JANE DOE, being duly sworn deposes and says: 1. I reside at 1007 Grove St. Brainerd, Minnesota 56401, and I am eligible for Medicaid through the Min- nesota Department of Social Services. 2. I am eight weeks pregnant, and want to have an abortion. I am making this Affidavit to intervene and for a temporary restraining order to restrain the imple- mentation of the Hyde Amendment. 3. I am 25 years old. I am married with four living children. Following the birth of my third child in No- vember of 1976, I developed a serious case of phlebitis from which I have not completely recovered. Carrying another pregnancy to term would greatly aggravate this condition and increase the risk of blood clots to the lung. 4. On July 29, 1977, I went to the Fertility Control Clinic at St. Paul-Ramsey Hospital, St. Paul, Minnesota to request an abortion. They informed me that a new law prohibits any federal reimbursement for abortions except those necessary to save the life of the mother 110 and that they cannot afford to do this operation free for me. : 5. I cannot afford to pay for an abortion myself, an without’ Medicaid reimbursement, I cannot obtain a safe, legal abortion. According to the doctor, Dr. Jane E. Hodgson, without an abortion I might suffer serious and permanent health problems. 6. I have been told by the Fertility Control Clinic that they can schedule an abortion for me if the Hyde Amendment does not go into effect and they are assured of reimbursement. Without Medicaid I would have to deprive my children of the actual necessities in order to pay for the procedure. /s/ Jane Doe : JANE DOE Sworn to before me this 29 day of July, 1977 /s/ Carol J. Muellner CAROL J. MUELLNER Notary Public Ramsey County My Comm. Expires Nov. 1, 1978 111 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 76 Civ. CorA MCRAE, ET AL., PLAINTIFFS Vv. JOSEPH A. CALIFANO, JR., DEFENDANT AFFIDAVIT STATE OF MINNESOTA _) SS.: COUNTY OF RAMSEY ) Dr. JANE E. Hopcson, being duly sworn, deposes and Says: 1, I am a member of the class of doctors in this action. 2. I work at the Fertility Control Clinic, St. Paul- Ramsey Hospital, St. Paul, Minnesota. 3. I have examined (Jane Doe) and find she is eight weeks pregnant. I feel an abortion is medically neces- sary for her because of recent phlebitis. 4. If a restraining order is not obtained and the Hyde peste are goes ri effect, I will not be able to do a abortion on (Jan i i pb stain ol e Doe) because I will receive no 5. I feel that without an abortion (Jane Doe) risks serious and permanent health problems if she is forced 112 to carry the pregnancy to term. She is not covered (or I don’t think she is covered) by the Hyde Amendment, however, because her life is not endangered. /s/ Jane E, Hodgson, M.D. JANE E. Hopason, M.D. Sworn to before me this 29 day of July, 1977 /s/ Carol J. Muellner CAROL J. MUELLNER Notary Public Ramsey County My Comm. Expires Nov. 1, 1978 113 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK CorA MCRAE, ET AL., PLAINTIFFS —against— JOSEPH A. CALIFANO, DEFENDANT STATE OF CONNECTICUT _ ) ) COUNTY OF ) Dr. Jane E. Hodgson, being duly sworn, deposes and says: 1. I am a named representative of the class of doctors in this action. 2. I am engaged in teaching and clinical practice at St. Paul-Ramsey Hospital, St. Paul, Minn. 3. I have examined 15 yr. old Ann Moe, a resident of Minnesota. She is 11 weeks pregnant. Her family is currently receiving medical assistance and is un- able to pay for an abortion. 4. While she might qualify for Medicaid under the exemption for statutory rape, she became pregnant more than two months ago. I do not know what “prompt” reporting means; furthermore the patient refuses to report because of her desire to protect her boy friend. 5. The increased risks of pregnancy in the young teen- ager are generally known (increased incidence of toxemia, hemorrhage, caesarian section, prematurity, etc.) However I don’t believe I could certify as to her life endangerment as required by 1977 Hyde Amendment. f % ‘ : 7 f og 10. 11. 114 I have called the family physician who referred her to me. He is not willing to state that “severe and long lasting physical health damage” would result from the pregnancy. Therefore she cannot be cer- tified under the new 1978 Hyde Amendment. The patient has spent most of the past 3 years in adolescent psychiatric wards and correctional institu- tions. There have been repeated episodes of running away, poor school attendance, and a diagnosis of schizophrenia. I feel an abortion is medically necessary for Ann Moe because of the increased physical risks of preg- nancy for a teen-ager as well as the increased men- tal risks for one with her unstable past. I believe a compulsory pregnancy would result in severe and long lasting mental health damage. However I am unable to certify her under either the 1977 or 1978 Hyde Amendments standards. I cannot obtain two physician certificates certifying that severe and long lasting physical health damage would result if her pregnancy were carried to term. And even if I could, the interpretation of her ap- plication by the Minnesota Medical Assistance Pro- gram, Department of Public Welfare is very uncer- tain to me. On 12-21-77 the Department of Public Welfare rejected my application for abortion of an 18 year old victim of juvenile rheumatoid arthritis already the mother of one. Her application was sup- ported by letters from two physicians as well as the Mayo Clinic. (See attached rejection slip). Whether the Department of Public Welfare is applying 1977 or 1978 standards is uncertain and their interpreta- tions of each law have been inconsistent and ar- bitrary. While Ann’s age (15) should entitle her to come un- der statutory rape in Minnesota, I am unaware of the exact requirements. Because the St. Paul-Ramsey Hospital will not extend credit to Ann Moe without the assurance of Medic- 12. 115 aid payment, she will be unable to obtain an abor- tion and will suffer irreparable harm. I have used a pseudonym for the above name pa- tient in order to preserve her privacy rights. /s/ Dr. Jane Hodgson Dr. JANE HODGSON Sworn to before me this 4 day of January 1978. STATE OF MINNESOTA COUNTY OF RAMSEY /s/ Berniece F. Wersal BERNIECE F’. WERSAL Notary Public, Ramsey County, Minn. My Commission Expires Feb. 6, 19. . SSNICGV TWAT OL S109 WV Livians Pa cssitae 1 eps CAnergy & py aeneetiag rites a dey A ey — ears 2-2) — fp XN I PA = =] “92% GAINOVLLY aas “esitieo 2160 wie — =e + gee. ee ——- eo SO7SS ANAGEAON4A HOVE Yor AL iSSGSRE WSO iv idNa me 00°00 00°00 | tc. 2? ; , GIA SINT ad Giri s deat GOLA ite cua. 1WVIOL a See a : - ee Oe, me a tee me o7 be ¢t sé , ° 2S '4t 2 Usins2 StADuss# 4 ° Ga eONL “oe eee ¢ . § ‘ . tt re are ACTIN ONCHOME a2 ENDIF TAI ae Eby: ee Lt 2¢ tc F a : ISUvKD , W51M20 CIACUsIT . rae ‘ oe BA LOTO TLS ba) 1 as 32 , t? &: “2 s.. ma ae ew Cm ot me PB tn ht ks | (eee oe — ae eee 2D EIAMIS re iy pr 2 2 22! AY aS De CP Se 7126 7HD SIM GIACIEs¥ 29 OO ° . ceeas | @8reee | KONYNOTUd JO -NOLLYNINUIL Ms VSO, i a ot. a... * 23 | eYeVO Os ws tS°4 aAHAS 2 Wid UUAR os ° ce. — ~_ © eos me on p ~ oo — PROD. Cent Os Oe ew nee HE” COTED eg , sti O68 o's T5200 °° 73 moth ” Stet abe a yg OE Ht Oo EES COs se Cees ee een 68 oe 68 wee eee SR ROR ay $9 0: aes SUlNEes> | ives . Lt O8 LS EN COCO eS OS ee OO Om: ame so ve -_em om s o 0 wen sigan a eng iP TOt.. G79Z Wye NIE ‘ S68 Oe © Owes ere © 6 oe £0 000 ..Z. co c aoe SPD swenve ser “2s 8 Sete St ne ee ee me ee ee ee © eee owes m+ oF hhgareg Tits wears UOWe * 8°38 - -——— Oe a ee 8 Oe em oe ee - -~-—_—e —. ‘#77 oe * . . ee e . ere . s ° Yor A Shgcgong ys Metndeg "Mein UN ESESYE Peary enesetnrets SU aN NY 117 [SEAL] SAINT PAUL-RAMSEY HOSPITAL AND MEDICAL CENTER Saint Paul, Minnesota 55101 612-221-3718 October 7, 1977 Department of Obstetrics & Gynecology Ismail Barrada, M.D. Charles H. Blomquist, Ph.D. William F. Dickes, M.D. Laura E. Edwards, M.D. Erick Y. Hakanson, M.D. Jane E. Hodgson, M.D. Michael F.. Koszalka, M.D. Gary T. Lundborg, M.D. Bonnie J. Stickles, M.S.N., C.J. To whom this may concern: Re: The above 18 year old patient has been a victim of juvenile rheumatoid arthritis which has incapacitated her to the extent that she required tutoring at home dur- ing the last two years of schooling. In November of 1976 she was delivered by cesarean section of a term preg- nancy. During her pregnancy she was incapacitated most of the time. At the present time she was found to be 20 weeks pregnant by ultrasound. Due to menstrual irregularities she did not suspect that she was pregnant until two weeks ago, on 9-26-77, when she was diagnosed as being pregnant at the Mayo Clinic, 3 mo. Subsequently an ultrasound done at St. Paul-Ramsey revealed a 20 week gestation. The patient is requesting interruption of preg- nancy on the basis of her pre-existing medical condition. Letters are enclosed from her physician, Tames E. Brown, as well as a copy of a medical evaluation at the Mayo Clinic written on June 1, 1976. 118 If this pregnancy is to be terminated, it must be done so immediately because of the advanced stage of the pregnancy. /s/ Jane E. Hodgson, M.D. JANE E. Hopcson, M.D. JEH:mr Enclosures: 2 119 Proud, M.D. 1515 CHARLES AVENUE Ahrend, M.D. SAINT PAUL Brown, M.D. MINN. 55104 ; October 6, 1977 Dr. Jane Hodgson 640 Jackson Street St. Paul, Minnesota 55101 Re: Dear. Dr. Hodgson: The above named patient has been intermittently under my care for some time. She suffers from chronic active rheumatoid arthritis. This has necessitate usuage of several drugs including Indocin on a regular basis. It is noteable that this drug is contraindicated in pregnancy. It is my understanding that the patient is presently pregnant. I feel that her chronic disease and drug ther- apy make the pregnancy inimical to both her and the baby’s future welfare. Sincerely /s/ James E. Brown JAMES E. BROWN, M.D. JEB/DHB 120 [MAYO CLINIC COPY] June 1, 1976 3-202-951 Harold R. Mundahl, M.D. 1703 Selby Avenue St. Paul, Minnesota 55104 Dear Doctor Mundahl: Miss [name deleted] was seen at the Mayo Clinic from May 14, 1976, through May 26, 1976, for an evaluation of her arthritis. Shari does have rheumatoid arthritis which has been present the last three years and currently her knees and feet were giving her the most trouble. She was having one to two hours of morn- ing stiffness. Shé has been homebound the last two years and has not gone to school, but has received tutoring at home. Her program has consisted of aspirin 6 to 8 tablets a day and she has been on Sterazolidin, Indocin, and Motrin without success and has been on four or five short courses of a cortisone preparation. Her weight was 125 pounds and blood pressure in the left arm was 100/60. She had mild acne about the face and a warty eruption over the right third toe. The uterus was enlarged 214 times the normal size. There was synovitis of the elbows, right wrist, right third metacarpohalangeal joint bilaterally and the right third proximal interphalangeal joint and the left second and fourth proximal interphalangeal joints. There was syno- vitis of the knees and a loose body distal and lateral to the right patella. There was synovitis of the ankles and and metatarsophalangeal joints of the feet. X-ray of the knees did not reveal any bony changes. The hemoglobin was 10.5 mg. per cent (normal 12 to 15) with diminished mean corpuscular volume at 67, normal 84 to 99. The flocculation test for rheumatoid factor was reactive at a titer of 1:40. The erythrocyte sedimenta- tion rate was elevated at 34 mm. in one hour (normal up to 20). The following laboratory tests were within normal limits: electrocardiogram, chest x-ray, urinalysis, white blood count 8,200, platelet count 376,000, serum 121 protein electrophoresis normal, cervical Papanicolaou smear negative, antinuclear antibody negative, ART se- rology nonreactive, potassium 3.8 mEq. per liter, calcium 9.3 mg. per cent, glucose 79 mg. per cent, alkaline phos- phatase 82 units per liter, serum glutamic oxalacetic transminase 9 units per liter, uric acid 2.9 mg. per cent, and creatinine .8 mg. per cent. [Name deleted] was instructed in a program of phys- ical therapy and advised to take Ascriptin 3 tablets four times a day for her rheumatoid arthritis. It will con- tinue to be important for her to get an extra amount of rest. The situation at this time is complicated by the fact that she is pregnant. Dr. L. A. Aaro, gynecol- ogist, evaluated [name deleted] on two occasions and on May 26, 1976, he felt that she was at about 10 to 12 weeks gestation, the fetal heart tones were detected and the ultrasound beta scan confirmed the pregnancy. Because of the pregnancy, I would not consider any other modalities of treatment for the rheumatoid ar- thritis other than rest, physical therapy, and Ascriptin. If her feet continue to give her difficulty it might be reasonable for her to have metatarsal bars placed on her shoes. If we can be of any further assistance, please contact us. Sincerely, D. L. CONN, M.D. DLC :tjp _—— .- Pee Ss ew eee a le ee ee : a er i oa oe ee = Pe oe ears Cit ty PO ee oe 122 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK CorA MCRAE, ET AL., PLAINTIFFS —against— JOSEPH A. CALIFANO, DEFENDANT STATE OF CONNECTICUT ) ) COUNTY OF ) ADDENDUM to affidavit of 1-2-78 regarding Susan Roe. ; What I have said regarding the uncertainties of in- terpretation of both the 1977 and 1978 Hyde Amend- ments by the Minnesota State Welfare Department, ap- plies equally well to Susan Roe. In her case I could not certify that an immediate second pregnancy would be “life-endangering” nor could I obtain two consultants who could certify to “long lasting and serious physical health damage”. And if I did obtain such written opinions, they have had no apparent effect upon the final inter- pretation by the State Welfare Department. (based on my experience with rejection of case referred to in af- fidavit regarding Ann Moe.) /s/ Jane E. Hodgson, M.D. JANE E. HODGSON, M.D. Sworn to before me this 4th day of January, 1978 STATE OF MINNESOTA COUNTY OF RAMSEY /s/ Berniece F. Wersal BERNIECE F’. WERSAL Notary Public, Ramsey County, Minn. My Commission Expires Feb. 5, 19.. 123 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK CorA MCRAE, ET AL., PLAINTIFFS —against— JOSEPH A. CALIFANO, DEFENDANT STATE OF CONNECTICUT ) ) ss: COUNTY OF ) Susan Roe, being duly sworn, deposes and says: (1) I am a Minnesota resident and am receiving Medi- cal Assistance. (2) Due to contraceptive failure, I am 15 weeks preg- nant and want to have an abortion. I am making this affidavit to intervene as a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0569%3A02. Public record. Not legal advice.