Appendix — King v. Preterm, Inc.

Supreme Court, U. S.

FILED

19-1027 pec 321979

United States Court dea'ppeais——

For the First Circuit

No. 78-1324

PRETERM, INC., et al.,

PLAINTIFFS, APPELLANTS,

v.

MICHAEL S. DUKAKIS, et al,

DEFENDANTS, APPELLEES.

No. 78-1325

PARENT’S AID SOCIETY, INC., et al.,

PLAINTIFFS, APPELLANTS,

v.

ALEXANDER E. SHARP Il,

DEFENDANT, APPELLANT.

No. 78-1326

PARENT’S AID SOCIETY, INC., et al.,

PLAINTIFFS, APPELLANTS,

v.

ALEXANDER E. SHARP II,

DEFENDANT, APPELLEE.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

(Hon. Anprew A. Carrrey, U.S. District J udge |

Before Corrin, Chief Judge,

CamPBELL and Bowness, Circuit Judges.

Nancy Gertner, with whom Silverglate, Shapiro & Gertner,

Barbara Sard, and John Reinstein, were on brief. for Preterm,

Inc., et al.

to

PRETERM, INC. UV. DUKAKIS

S. Stephen Rosenfeld, Assistant Attorney General, with whom

Francis X. Bellotti, Attorney General, and Garrick F. Cole, Assist-

ant Attorney General, were on brief, for Sharp, et al. ;

Joseph J. Balliro, with whom Joan C. Schmidt, was on brief, for

Parent’s Aid Society, Inc., et al. :

Joseph J. Hurley and Nutter, McClennen & Fish on brief for

William A. Lynch, M.D., et al., amici curiae.

January 15, 1979

Corrin, Chief Judge. In this case we are called upon to

assess the validity, in terms of compliance with the federal

Medicaid Act, of Chapter 367, ¢ 2, Item 4402-5000 of the

Massachusetts Acts of 1978. Chapter 367 is an appropri-

ations provision, limiting the expenditure of state funds

for abortions to those abortions ‘‘which are necessary to

prevent the death of the mother”’ and to those procedures

‘‘necessary for the proper treatment of the victims of forced

rape or incest’’ if the incident is properly reported within

thirty days.

At issue, as well, is the impact on the Medicaid Act and

state plans thereunder of the Hyde Amendment, Section

209 of Pub. L. 95-205; 91 Stat. 1460 (Dec. 9, 1977), first

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

Welfare appropriations bill. The Hyde Amendment for

FY 1978 prohibits federal funding for abortions except

‘‘when the life of the mother would be endangered’’, when

the woman is a ‘‘victim of rape or incest’’ and reports the

incident ‘‘promptly’’ and in instances where ‘‘severe and

long-lasting physical health damage to the mother would

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

mined by two physicians.’’?

1A number of lower courts have considered the compliance of

state plans, similar to that of Massachusetts, with the Medicaid

Act and have reached differing results. See, e.g., Emma G. v.

Edwards, Civ. No. 77-1342 (E.D. La. Nov. 27, 1978) (court issued

preliminary injunction enjoining enforcement of statute which

barred use of state funds for abortions ‘‘except when the abortion

is medically necessary to prevent the death of the mother’’) ;

Roe v. Casey, Civ. Action No. 78-2214 (E.D. Pa. June 30, 1978)

OPINION OF THE COURT. 3

The district court found that Chapter 367 violated spe-

cifie provisions and the basic thrust of the Medicaid Act

by failing to provide for abortions that were ‘‘medically

necessary’’. However, because the court considered it

‘‘anomalous’’ to impose upon the state the obligation to

fund ‘‘medically necessary’’ abortions for which the Hyde

Amendment had prohibited federal funding, its prelimi-

nary injunction modified Chapter 367 to require state pay-

ment for at least those abortions funded under the Hyde

Amendment. The court did not reach the constitutional

arguments of the parties. See Hagans v. Levine, 415 U.S.

528 (1974).

(district court issued temporary restraining order preventing

state from refusing to reimburse providers for medically necessary

abortions) ; D. R. v. Mitchell, Civ. No. 77-1056 (D. Utah June 20,

1978) (court granted state’s motion for summary judgment and

held that Medicaid Act does not require funding of all medically

necessary abortions, but only those when the mother’s life was

endangered, relying in part on the Hyde Amendment’s language) ;

Zbaraz v. Quern, Civ. No. 77C 4522 (N.D. Ill. May 15, 1978) (on

remand from the Seventh Circuit, 572 F.2d 582 (7th Cir. 1978)

(district court enjoined state from denying reimbursement for

therapeutic abortions and found that Hyde Amendment had no

impact on the state’s obligations) ; Smith v. Ginsberg, Civ. No. 75-

0380 CH (S.D. W.Va. May 9, 1978) (district court enjoined en-

forcement of statute to extent it denied reimbursement for neces-

sary therapeutic abortions, ordered parties to brief the Hyde

Amendment issue).

In Doe v. Kenley, No. 78-1380 (4th Cir. Oct. 19, 1978), the

Fourth Circuit considered the ‘‘limited’’ issue of whether a state

which has established a policy for the stated objective of elimi-

nating state medical assistance for nontherapeutic abortions may

implement that policy by requiring a physician to certify that the

woman’s life would be endangered if the pregnancy was carried

to term. It rejected the state’s argument, adopted by the district

court, that the words ‘‘endangerment of life’’ really meant ‘‘en-

dangerment of health’? and remanded the case directing that an

order be entered clarifying the state’s standard for funding abor-

tions. The court further stated ‘‘that on the facts of this case

we need not reach the statutory and constitutional issues raised

by Doe of whether a state may be compelled by either Title XIX

or the Constitution to fund induced therapeutic abortions.’’ /d.

slip op. at 12.

Thus, we believe that this court is the first court of appeals to

reach the issues presented by this case.

+ PRETERM, INC. UV. DUKAKIS

Preterm, Inc., et al., plaintiffs below, then sought an

expanded injunction pending appeal of the district court’s

preliminary injunction.? We granted that relief, and modi-

fied the district court’s injunction to require the Common-

wealth of Massachusetts to provide funding for abortions

to ‘‘all Medicaid-eligible pregnant women who desire to

obtain an abortion and for whom a physician has deter-

mined that an abortion is a medically-necessary service’’.

Subsequently the district court ordered consolidation of

the preliminary injunction with the merits and entered its

preliminary injunction as a final order. All parties have

appealed, and it is the district court’s final order that is

before us on review. We turn first to the question whether

Chapter 367 violates the requirements of the Medicaid Act

by providing for abortions, in circumstances other than

pregnancy resulting from forced rape or incest, only when

the abortion is ‘‘necessary to prevent the death of the

mother’’.

2 The named plaintiffs in No. 78-1324 are Preterm, Inc., a non-

profit corporation providing clinical services, including abortions,

for indigent women; board-certified obstretricians and gynecolo-

gists practicing in Massachusetts; a Medicaid-eligible pregnant

woman residing in Massachusetts; Massachusetts Welfare Recipi-

ents for Welfare Reform, an association of public assistance recipi-

ents; and Planned Parenthood League of Massachusetts, an un-

incorporated agency providing abortion counseling. In Nos. 78-

1325 and 78-1326, the named plaintiffs, some of whom were dis-

missed below for lack of standing, see infra, are several Medicaid-

eligible pregnant women; a Massachusetts physician and Medicaid

previder; and an abortion counselor and director of Parents Aid

~ =. ty, Ine., a non-profit Massachusetts corporation providing abor-

i; . eornseling, which is also a plaintiff. The defendants in these

cases are various officials of the Commonwealth of Massachusetts.

The district court also certified, pursuant to Fed. R. Civ. P.

23(¢) (1), two classes of plaintiffs in the Preterm action: the first

consisting of ‘‘all Medicaid-eligible pregnant women who desire to

obtain an abortion and for whom a physician has determined that

an abortion is a medically-necessary service but for whom an abor-

tion is not necessary to prevent death’’, and second, ‘‘all physicians

and other Medicaid providers . . . willing to perform abortions for

women who fall within the first class.”’

OPINION OF THE COURT. 5

I. The Requirements of the Medicaid Act

The Medicaid Act, Title XIX of the Social Security Act

of 1965, operates to enable participating states, through

the use of federal funds, to provide medical services to

welfare recipients (the ‘‘categorically needy’’) and if the

state chooses, to other needy recipients (the ‘‘medically

needy’’). See Beal v. Doe, 432 U.S. 438, 440 n. 1 (1977);

42 US.C. § 1396a(a)(10)(A), (C). Although a state’s par-

ticipation in Medicaid is voluntary, if it chooses to adopt a

plan it must do so consonant with the requirements imposed

by the Medicaid Act. See Beal v. Doe, supra, 482 U.S. at

441; Wiute v. Beal, 555 F.2d 1146, 1149 (3d Cir. 1977);

Rush v. Parham, 440 F. Supp. 383, 385 (N.D. Ga. 1977).

The plaintiffs below argue, and the district court found,

that abortions, when ‘‘medically necessary’’ as determined

by a physician are within the category of services which a

State must provide. The state, on the other hand, contends

that participating states are afforded great latitude in de-

ciding which services will be furnished under their plans,

and maintains that the Act nowhere requires a state to

provide all ‘‘medically necessary’’ services. The disagree-

ment between the parties is thus a fundamental one, and

one which our study of the statute has not easily resolved.

Our analysis begins with the opening section of the Act,

which both authorizes an appropriation and sets forth a

general statement of purpose:

“42 U.S.C. § 13896. Appropriation

For the purpose of enabling each State, as far as prac-

ticable under the conditions of such State, to furnish ‘

(1) medical assistance on behalf of families with de-

pendent children and of aged, blind, or disabled indi-

viduals, whose income and resources are insufficient

to meet the costs of necessary medical services, and

(2) rehabilitation ..., there is hereby authorized to

be appropriated ... .’’ (emphasis added).

6 PRETERM, INC. UV. DUKAKIS

The district court and other courts which have found a

requirement within the Medicaid Act that states provide

all ‘‘medically necessary’’ services have relied heavily on

this section. See, e.g., Rush v. Parham, supra, 440 F. Supp.

at 389. It does not seem, however, that the words ‘‘neces-

sary medical services’’ are properly read as a substantive

requirement imposed on the states. Instead, this section

merely specifies for whose benefit federal funds are to be

appropriated—those ‘‘individuals, whose income and re-

sources are insufficient to meet the costs of necessary medi-

cal services.’’ 42 U.S.C. § 1896. See also 42 U.S.C. § 1396a

(a)(10)(C). Furthermore, the section apparently contem-

plates some flexibility in the Act’s demands on each state,

stating that its purpose is to enable a state to furnish

medical assistance ‘‘as far as practicable under the condi-

tions of such State.’’

Our view finds support from the structural composition

of the Act. Section 1396a is the provision which details the

required contents of a state plan for medical assistance.

Among the 37 items listed, we find no mandate that all

‘‘medically necessary’’ services be provided. We therefore

hesitate to draw the words ‘‘necessary medical services”’

from their context—an appropriations section—and in ef-

fect transport them into a contents section requirement.

Although we are unable to discover a statutory require-

ment that states provide medically necessary services, we

do find guidance within the statute, albeit less explicit, for

deciding this case. Section 1396a requires that a state plan

for medical assistance provide five general categories of

medical services to the categorically needy, enumerated in

§ 1396d(a): (1) inpatient hospital services, (2) outpatient

hospital services, (3) other laboratory and x-ray services,

(4) skilled nursing facilities, screening and treatment for

persons under the age of 21 and family planning services

OPINION OF THE COURT. 7

and supplies, and (5) physicians’ services.’ In Beal v. Doe,

supra, 432 U.S. 438, the Supreme Court, deciding whether

a state plan which denied funds for abortions unless they

were certified by a physician as ‘‘medically necessary’’

was violative of the Medicaid Act, stated that: ‘‘Title XIX

[Medicaid] does not require states to provide funding for

all medical treatment falling within the five general cate-

gories’’. But, ‘‘it does require that state Medicaid plans

establish ‘reasonable standards ... for determining .. . the

extent of medical assistance under the plan which ... are

consistent with the objectives of [Title XIX].’ 42 U.S.C.

§ 13896a(a)(17) (1970 ed., Supp. V).’’ Id. at 440-41. The

Court further emphasized that the Act ‘‘confers broad dis-

cretion on the States to adopt standards for determining

the extent of medical assistance, requiring only that’ such

standards be ‘reasonable’ and ‘consistent with the objec-

tives of the Act.’ ’’, id. at 444, and concluded that the state’s

‘‘refusal to extend Medicaid coverage to nontherapeutic

abortions is not inconsistent with Title XIX.’’ Id. at 447.

The Court’s opinion contains a dictum relied on by the

district court: ‘‘[a]lthough serious statutory questions

might be presented if a Medicaid plan excluded necessary

medical treatment from its coverage, it is hardly inconsis-

tent with the objectives of the Act for a State to refuse to

fund unnecessary—though perhaps desirable—medical ser-

vices.’’ Id. at 444-45 (emphasis added to introductory

clause). This language is indeed relevant to the issue at

hand—the validity of a state plan which allows payment

for abortion services in other than cases of rape or incest ,

only when ‘‘necessary to prevent the death of the mother’’;

but we do not believe that we should read this dictum as

signalling a flat rule that all services within the five general

3 States are given a greater choice in determining the types of

services that it provides to the ‘‘medically needy’’. 42 U.S.C.

§ 13896a(a) (13) (C).

8 PRETERM, INC. UV. DUKAKIS

categories deemed ‘‘medically necessary’’ by a patient’s

physician must be provided by the state plan.

Such a reading, permitting the most varied content to

the words ‘‘necessary medical services’’, the variations

being theoretically limited only by the diversity of physi-

cians, would seem at war with the goals of consistency and

fairness in the administration of the statute. We see two

levels of judgment as to medical necessity in the statutory

scheme. The first is the macro-decision by the legislature

that only certain kinds of medical assistance are deemed

sufficiently necessary to come under the coverage of its

plan. The second is the micro-decision of the physician,

that the condition of his patient warrants the administer-

ing of a type of medical assistance which that plan makes

available. Our task here is to test the judgment of the

Massachusetts legislature as to medical necessity, i.e., was

its decision to limit state funded abortions, in other than

cases of rape or incest, to those necessary to save the life

of the woman ‘‘reasonable’’ and ‘‘consistent with the ob-

jectives of [Title XIX]’’? 432 U.S. at 441, 444; see 42 U.S.C.

§ 1396a(a) (17).

The regulations promulgated by the Department of

Health, Education and Welfare pursuant to the Medicaid

Act and having the force of law, detail the permissible

and impermissible ways in which a state may exclude or

diminish payment for certain services in its plan. 42 C.F.R.

§ 440.230 (1978) provides that:

‘*(a) The plan must specify the amount and duration of

each service that it provides.

(b) Each service must be sufficient in amount, dura-

tion, and scope to reasonably achieve its purpose.

(c) (1) The medicaid agency may net deny or reduce

the amount, duration, or scope of a required ser-

vice under §§ 440.210 [for the categorically needy ]

and 440.220 [for the medically needy] to an other-

OPINION OF THE COURT. g

wise eligible recipient solely because of the diag-

nosis, type of illness, or condition.

(2) The agency may place appropriate limits on

a service based on medical necessity or on utiliz-

ation control procedures.

The plaintiffs below maintain that the limitations imposed

by Massachusetts on abortion services render those services

insufficient in ‘‘amount, duration and scope’’ to reasonably

achieve their purpose, and that the limitations are based

solely on the type of medical condition involved rather than

on determinations of medical necessity.

In White v. Beal, 555 F.2d 1146 (3d Cir. 1977), the Third

Circuit construed this regulation in determining whether a

state plan, which made eyeglasses available to persons who

needed them because of eye pathology but denied them to

persons suffering from other types of visual impairment,

violated the Medicaid Act. The court held that the plan

was violative of the Act because it distributed the service

in a manner which did not bear a rational relationship to

the ‘‘underlying federal purpose of providing the services

to those in greatest need of it’’, id. at 1151. Citing 45 C.F.R.

§ 249.10(a) (5) (i), the earlier codification of the regulation,

it stated that ‘‘[t]he regulations permit discrimination in

benefits based upon the degree of medical necessity but not

upon the medical disorder from which the person suffers.’’

Td. at 1151-52.

We think that the limitations imposed by Chapter 367

on abortion services similarly violate the purposes of the

Act and discriminate in a proscribed fashion, although per- *

haps less obviously than did the plan in White v. Beal,

supra. It could perhaps be argued that the Massachusetts

plan reserves abo**tion services to those in greatest need

—women who will die without an abortion—and denies it

to those who need it less—women who will suffer damage

to their health, no matter how grievous, but who will sur-

10 PRETERM, INC. UV. DUKAKIS

vive without the abortion. But we do not believe that the

Medicaid Act contemplates or sanctions anything so stark.

When a state singles out one particular medical condition

—here, a medically complicated pregnancy—and restricts

treatment for that condition to life and death situations

it has, we believe, crossed the line between permissible

discrimination based on degree of need and entered into

forbidden discrimination based on medical condition.

The Medicaid system was established for the purpose of

enabling a state, with federal participation, to provide

medical assistance to-eligible individuals in need of treat-

ment and unable to pay for it. See 42 U.S.C. § 1396. We

find it ‘‘unreasonable’’ and wholly ‘‘[in]consistent with

the objectives of the Act’’, 42 U.S.C. § 1396a(a)(17), for

a state to provide abortion services and then, with limited

exceptions for victims of rape and incest, deny it to all

those who will not die without it. We know of no other

instance where a legislative decision to pay for medical

care is based on the distinction between life and death.

If only those suffering at death’s door from sickle cell

anemia or syphilis could receive publicly provided medical

care, but not those condemned to a lifetime of dependency,

one would be hard put to discern any rational social objec-

tive being thereby served. So we think here.* In addition,

Chapter 367 is inconsistent with the Act, which provides

for a central role for the physician in determining proper

treatment, by circumscribing his professional judgment so

drastically. As a physician’s affidavit submitted on behalf

of the plaintiffs below attests ‘‘[a] standard of medical

necessity which considers only the certainty or likelihood

*The limitations in the Massachusetts Act clearly cannot be

justified as a cost-saving mechanism. See White v. Beal, 555 F.2d

1146, 1150 (8d Cir. 1977). It is uncontroverted that the costs of

medical treatment necessary when even healthy pregnancies are

carried to full term exceed the costs of therapeutic—or even elec-

tive—abortions. See Maher v. Roe, 482 U.S. 464, 478-79 (1977).

OPINION OF THE COURT. 11

of a patient’s death is alien and antithetical to medicine in

general. I know of no area of medical practice in which

a physician exercises professional responsibility solely in

terms of life and death assessments.’’

Accordingly, we conclude that Chapter 367 fails to pro-

vide abortion services consistent with the requirements of

the Medicaid Act. We now turn to the question of the

impact of the Hyde Amendment on state plans adopted

pursuant to that Act.

II. The Impact of the Hyde Amendment

The Hyde Amendment, the name given to language in-

serted into the FY 1977 and 1978 Health, Education and

Welfare appropriations bills, in its current form prohibits

use of appropriated federal funds for Medicaid abortions

except in specified situations.> The first two are similar to

those in Chapter 367—instances where ‘‘the life of the

mother would be endangered’’ and when she is the victim

of rape or incest and reports the incident promptly. The

Hyde Amendment differs from the Massachusetts Act,

however, by providing a third exception—‘‘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.’’®

5 Congress, in the final days of the Second Session of the 95th

Congress, reenacted the identical language in its FY 1979 HEW

appropriations bill.

® Several district courts have commented on the impact of earlier

versions of the Hyde Amendment on the Medicaid Act. In McRae °

v. Mathews, 421 F. Supp. 533, 588 (E.D. N.Y. 1976). the court

found that:

‘‘The manifest fact is that [the Hyde Amendment] is caleu-

lated to stop the provision of abortional services from public

funds; it is not calculated to shift the burden of providing

this medica] assistance to the states.’’

Finding probable success on the merits in light of cases which

found plans eliminating elective abortions invalid, the court en-

joined the Secretary of Health, Education and Welfare from deny-

12 PRETERM, INC. UV. DUKAKIS

Plaintiffs contend that the Hyde Amendment must be

construed according to its literal terms as authorizing fed-

eral funds for certain limited categories of abortions and

thus shifting the total cost to the states of providing those

abortion services not funded by the Hyde Amendment but

nonetheless required by the Medicaid Act. They maintain

that the Hyde Amendment has no impact on a state’s obli-

gations to provide services required by the Act.

The state, on the other hand, argues that even if this

court should find, as it has, that Chapter 367 contravenes

the Medicaid Act by providing abortions in cases other

than rape or incest only when necessary to prevent the

woman’s death, the Hyde Amendment constitutes a con-

gressional statement that the states need not fund more

abortions than Congress is willing to fund, although they

could choose to do so if they wished. The Hyde Amend-

ment, according to the state, is to be viewed as a policy

decision concerning a state’s obligations to provide pub-

ing Medicaid reimbursement for elective abortions. The case was

vacated and remanded on appeal for further consideration in light

of Maher v. Roe, 432 U.S. 464 (1977) and Beal v. Doe, 432 U.S. 438

(1977). See Califano v. McRae, 433 U.S. 916 (1977); 4384 US.

1301 (1977).

In contrast, in Doe v. Mathews, 420 F. Supp. 865, 869 (D. N.J.

1976), the court refused to issue a temporary restraining order

preventing the Secretary from enforcing the Hyde Amendment,

in part, because:

‘Title XIX] was not amended or affected by the Hyde

Amendment. Title XIX remains in force as it stood when

Beal and Klein was decided. The Hyde Amendment affects

the federal appropriation to HEW for fiscal 1977, and its

application is limited to the treatment of items of cost in-

curred by a Medicaid State for which federal funds can be

paid to that State. It has no application to the kinds of items

for which a State must pay if it has enacted a Medicaid Law.’’

See Doe v. Mathews, 422 F. Supp. 141 (D. D.C. 1976), cert. dis-

missed, 434 U.S. 801 (1977) (court found that plaintiffs had no

standing to sue the Secretary in a Hyde Amendment challenge,

not having demonstrated that state officials would, or could pursu-

ant to Title XIX or the Constitution, deny reimbursement for

abortions other than those provided for in the Hyde Amendment).

OPINION OF THE COURT. 13

licly funded abortions and not as merely a shifting of the

costs of non-Hyde Amendment abortions to the states.

In support of its position, the state points to the congres-

sional debates which preceded passage of the Amendment

as well as the basic structure of the Act, namely joint fed-

eral and state participation in providing medical assistance

to the needy. Apparently relying on this latter factor, the

district court found that it would be ‘‘anomalous’”’ to re-

quire states to pay for abortions for which the Hyde

Amendment had withdrawn federal funds and enjoined the

state from refusing to provide abortions for which Hyde

Amendment funds were available. By so ruling, the court

implicitly concluded that the Hyde Amendment should be

read as having a substantive effect on the state’s obliga-

tions under the Medicaid Act and not merely as a shifting

of the responsibility to pay for abortions.

Our inquiry begins with the words of the statute itself,

which if clear, ordinarily obviate the need to resort to ex-

trinsic aids of statutory construction. See Tennessee Valley

Authority v. Hill, 98 S.Ct. 2279, 2296 n. 29 (1978) ; Caminetti

v. United States, 242 U.S. 470, 485 (1917); Massachusetts

Financial Services, Inc. v. Securities Investor Protection,

545 F.2d 754, 756 (1st Cir. 1976). The language of the Hyde

Amendment, on its face, supports the plaintiffs’ position.

The Amendment states that ‘‘none of the funds provided for

in this paragraph shall be used’’ to perform abortions, un-

less they fall within specified categories, and thus reads as

a mere withdrawal of federal funds for certain services.

No mention is made in the provision of any impact on the.

state’s obligations. However, when the plain meaning of

a statute produces a result ‘‘plainly at variance with the

policy of the legislation as a whole’’ and ‘‘aid to construc-

tion of the meaning of words, as used in the statute, is

available, there certainly can be no ‘rule of law’ which

forbids its use, however clear the words may appear on

14 PRETERM, INC. V. DUKAKIS

‘superficial examination.’ ’’ Umited States v. American

Trucking Associations, Inc., 310 U.S. 534, 543-44 (1939) ;

Massachusetts Financial Services, Inc. v. Securities In-

vestor Protection, supra, 545 F.2d at 756. The construction

urged by the plaintiffs would result in imposing an obli-

gation on the states to fund the total cost of non-Hyde

Amendment therapeutic abortions, a result not consonant

with the basic policy of the Medicaid system under which

the federal government participates in the funding of medi-

cal services provided by the states. See 42 U.S.C. § 1396;

Doe v. Beal, supra, 432 U.S. at 440; White v. Beal, supra,

555 F.2d at 1149. We therefore think it necessary to con-

sider the legislative history of the Hyde Amendment.

The Legislative History

Congressional consideration of the Hyde Amendment

began in the House of Representatives on June 17, 1977

and ended with a Senate debate and vote on a compromise

measure on December 7, 1977. During this six month period

some ten different versions were passed in one of the cham-

bers, see CCH Medicare-Medicaid Reporter { 28,832, at

9151, and no fewer than 25 roll call votes had been taken

in the House and Senate. Congressional Quarterly, Weekly

Report, Vol. XXXVI No. 5 at 258 (Feb. 4, 1978). There

are neither conference reports nor committee reports; all

we have are the debates and insertions in the Congressional

Record. These, however, if considered as a whole, are illu-

minating. The leaders of both sides in the debate spoke

often and long enough and clearly enough so that there is

no doubt about what the Congress wanted to do and thought

it was doing.

To begin with, there are a few observations to the effect

that all that the Amendment is concerned with is the

expenditure of federal dollars. For example, on the first

day of debate in the House, Congressman Doran said, ‘‘It

OPINION OF THE COURT. 15

simply denies Federal funds for the realization of a per-

sonal... decision... .’’ 123 Cong. Rec. H. 6086 (June 17,

1977). Similarly, Congressman Edwards observed that

‘‘the only thing over which we have any control is what

we do with Federal dollars.’’ Jd. at 6090. Much later, Con-

gressmen Hyde and Flood made statements to the effect

that the issue at hand concerned the use of federal funds

for abortion. 123 Cong. Rec. H. 10826-30 (Oct. 12, 1977).

See 123 Cong. Rec. S. 11039 (June 29, 1977) (Senators

Bellmon and Stennis). Not only are these the only such

comments in the entire debate which the briefs of the

parties and our own research have unearthed, but even

they are consistent with the conclusion that the Congress

utilized the device of withholding federal funds as the

means of making a substantive change in the law.

Moreover, the record is clear that both houses of Con-

gress were acutely conscious that they were engaging in

substantive legislation. The very first event which took

place in the House of Representatives was the making of

two points of order, the sustaining of the same, and an

amendment by sponsor Hyde simply confining his Amend-

ment to a ban on spending federal funds for abortions, any

abortions. Congressman Hyde then expressed his regret

that the points of order forced him to exclude mother’s-life-

saving therapeutic abortions from his Amendment, adding

that he agreed with those who had said it was unfortunate

to burden appropriation bills with complex issues such as

busing and abortion but that ‘‘The problem is that there

is no other vehicle that reaches this floor in which these

complex issues can be involved. Constitutional amendments

which prohibit abortions stay languishing in subcommittee,

much less committee, and so the only vehicle where the

Members may work their will, unfortunately, is an appro-

priation bill.’’ 123 Cong. Ree. H. 6083 (June 17, 1977).

Subsequently, on August 2, after a candid explanation by

L

16 PRETERM, INC. UV. DUKAKIS

Congressman Flood that the only way to enable the Amend-

ment to exclude from its proscriptions abortions in cases

of life endangering pregnancies was to restore the original

language, such language was restored and no further points

of order were made. 123 Cong. Rec. H. 8248-49 (Aug. 2,

1977). |

In the Senate a point of order was made and the Senate,

by voting that a Senate version of the Amendment was

germane to the subject matter of the House bill, thus

satisfying Senate Rule XVI, legitimized its subsequent

legislating. 123 Cong. Rec. S. 11055 (June 29, 1977). Before

the vote was taken, Senator Brooke lodged this protest:

‘‘Mr. President, I urge the Senate to support the

amendment striking all restrictions on the use of

medicaid funds for the performance of abortions.

Such restrictions are a blatant case of legislating on

an appropriations bill, a most unwise practice and

one which I adamantly oppose regardless of the sub-

ject.’’ Id. at S. 11035.’

At the very end of the process Senator Magnuson, a pro-

ponent of fewer restrictions, expressed his unhappiness,

saying pithily, ‘‘I have said many, many times, as sort of

a voice in the wilderness, that this does not belong on the

HEW bill. It is legislation of the rawest nature on an

appropriations—money—bill.’’ 123 Cong. Rec. S. 19440

7 Senator Brooke continued, voicing other objections to the pro-

posed Amendment:

‘*However, I oppose restrictions on medicaid abortions for

other equally valid reasons. First, the Senate should not

through a funding decision in effect deprive our most vulner-

able and helpless citizens, the poor, of an established constitu-

tional right. Second, the Senate should not so thoughtlessly

try to impose simplistic solutions on so complex an issue.

And third, the Senate should not legislate in a medical area

in which we have absolutely no competence and dictate

medical decisions which a physician and a physician alone

is trained and capable to make.’’ 123 Cong. Ree. S. 11035

(June 29, 1977).

OPINION OF THE COURT. 17

Dec. 7, 1977). And Senator Stennis, a supporter of greater

restrictions on abortions, complained about the Senate’s

‘‘obscure rules about amendments on appropriations bills,

that contain legislation on appropriations bills’’, and noted

that a ‘‘lot of this type of proposals [sic] are in this bill,

including the point on abortion.’’ Jd. at S. 19445. Senator

Brooke devoted much of his effort in this part of the debate

to making clear ‘‘the legislative intent of the provisions we

are acting upon.... Since [HEW has] not given us any

interpretation, I think we should clarify for them what the

legislative intent is.’’ Jd. at S. 19441. Senator Javits called

the end result of this six month effort ‘‘a milestone in our

legislation’’. Jd. at S. 19443.

Moreover, the inclusion of very specific and detailed pro-

visions underscored the substantive nature of the legisla-

tion being enacted. See, e.g., the comments of Congressman

Michel in explaining how the House of Representatives had

rejected the inclusion of danger to mental health as a

reason for funding abortions, 123 Cong. Rec. H. 12651,

12656 (Dec. 6, 1977) ; Senator Brooke’s and Senator Javits’

doubts of the constitutionality of the requirement of a

certificate from two physicians that severe and long-lasting

physical health damage would occur, 123 Cong. Ree. S.

19440-19443 (Dec. 7, 1977); and Congressman Michel’s

attempts to define what was meant by the prompt reporting

requirement in cases of rape and incest, 123 Cong. Rec.

H. 12652-12653 (Dec. 6, 1977).

Perhaps the message of the legislation was conveyed

most clearly by those who were opposed to restrictions

on publicly funded abortions. Their litany of opposition

stressed the harshness of depriving the poor of abortions

which the more affluent could afford. The universal assump-

tion in debate was that if the Amendment passed there

would be no requirement that states carry on the service.

Congressnian Stokes referred to the Amendment as ‘‘tanta-

18 PRETERM, INC. UV. DUKAKIS

mount to a constitutional amendment outlawing abortions

for the poor.’’ 123 Cong. Rec. H. 6085 (June 17, 1977).

Congressman Holtzman said that it ‘‘condemns to death

poor women, who, if they give birth, will die... .”’ Id. at

H. 6092. Others spoke to the same point, see, e.g., id. at

H. 6097 (Congressman Meyner), 123 Cong. Rec. at H. 10968

(Congressman Sears), id. at H. 12656 (Congressman

Fraser).

The predictions were no less dismal in the Senate. Sena-

tor Packwood said: ‘‘Let us be very clear about it. If we

do not fund abortions, these 250,000 to 300,000 women

who now receive abortions, paid for by Federal or State

moneys under medicaid, are either guing to have babies

they do not want or are going to go to backroom abor-

tionists. There is no question that the poor are going

to be discriminated against.’’ 123 Cong. Ree. at S. 11031

(June 29, 1977). Similar remarks were made by Senator

McGovern, id. at S. 11040; Senator Bayh, id. at S. 11043;

Senator Brooke, 123 Cong. Rec. at S. 13672 (Aug. 4, 1977) ;

and Senator Javits, 123 Cong. Ree. at S. 19443 (Dec. 7,

1977).

Another variant of the message was that, if the Amend-

ment were passed, the states would have the option to

provide abortion on more liberal terms than those con-

tained in the Amendment, but only if they wished to do so.

Congressman Russo, a supporter of the Amendment, after

expressing satisfaction over the prospect of ‘‘saving’’

240,000 more lives if the source of funds were eliminated,

said, ‘‘of course, eliminating Federal funds would not end

all Government financing of all abortions. States would

retain the option of providing money to poor women for

abortions if they want. But the Federal Government’s

example would encourage States participating in the medi-

caid program to discontinue this aspect of medical care

to the poor—an option States cannot exercise at the present

OPINION OF THE COURT. 19

time.’’ 123 Cong. Rec. H. 6097-6098 (June 17, 1977). Other

spokesmen to the same effect were Senator Helms, 123

Cong. Rec. S. 18584-18585 (Nov. 3, 1977); Congressman

Early, 123 Cong. Rec. at H. 10835 (Oct. 12, 1977); and

Congressman Smith, 123 Cong. Rec. at H. 12653 (Dec. 6,

1977).

Finally, the total absence in the debate of any suggestion

that massive financial burdens were being shifted to the

states further belies plaintiffs’ contention that states were

to continue to fund abortions beyond those qualifying

under the Hyde Amendment. Indeed, were a state to under-

take to pick up the burden dropped by the federal govern-

ment and divert funds from other medical services, the

functioning of its entire plan would be crippled.

From this sampling—which we think is a fair represen-

_tation of the entire Congressional debate—we are per-

suaded that Congress realized that it was using the unusual

and frowned upon device of legislating via an appropri-

ations measure to accomplish a substantive result. That

result was, it believed, far more significant than the

proscription of federal funding of a program mandated

hy Medicaid to continue even if only with state funding.

Repeal by Implication

Plaintiffs contend that this reading of the Hyde Amend-

ment brings it into conflict with the Medicaid Act and thus

violates both the principle that we should endeavor so to

construe two statutes that they may be capable of coexist-

ence, ‘‘absent a clearly expressed congressional intention

to the contrary’’, Morton v. Mancari, 417 U.S. 535, 551

(1974), and the equally prominent principle disfavoring

repeals by implication, especially repeals via appropria-

tions measures, Tennessee Valley Authority v. Hill, 98

S. Ct. 2270, 2299-2300 (1978).

As a preliminary matter, we agree that our construction

of the Amendment, as a substantive enactment of a state’s

20 PRETERM, INC. UV. DUKAKIS

Medicaid obligations, produces a conflict with the Medicaid

Act. We have held that the Medicaid Act requires an

inquiry into whether a state plan which limits reimburse-

ment for certain services, does so in a way that is ‘‘reason-

able’, ‘consistent with the objectives of the Act”, 42

U.S.C. § 1896a(a) (17) and without discriminating solely

on the basis of the particular ‘‘diagnosis, illness or con-

dition’, 42 C.F.R. ¢ 440.230 (1978), and we do not believe

that a state plan, funding only those abortions specified in

the Hyde Amendment, would be consistent with these re-

quirements of the Act.® The Hyde Amendment does not

suffer from the defect of the Massachusetts Act by limiting

the availability of funds, except in cases of rape and incest,

to life and death situations. Such a discrimination, we

determined, could not reasonably be said to be one based

on medical need. See White v. Beal, supra, 555 F.2d at

1151-52. Nor does the Hyde Amendment reduce the role

of the physician to making professional judgments based

solely on prevention of the woman’s death, as does the

Massachusetts Act. We think it important, in terms of its

consistency with the Act, that the Hyde Amendment per-

mits funding for abortions needed to prevent ‘‘serious and

long-lasting physical health damage’’, a standard that

allows a physician’s consideration of health needs, short

of life and death. Tue requirements that the damage be

‘‘severe’’ and “‘long-lasting’’ apparently are designed to

ensure that funds will in fact be reserved to those who

most need the treatment.

Thus far, we might feel that we should conclude that

8 we concluded, as did the district court, that the Medicaid

ant een a state to provide all ‘medically necessary mit

as determined by a physician, the conflict between the Amen =

and Medicaid would be readily apparent and far ranging. - “

narrow categories funded by the Hyde Amendment would oma y

not encompass all situations in which a physician, oe “sa

professional judgment, could certify that an abortion was medically

necessary.

OPINION OF THE COURT. 21

the Hyde Amendment, if intended as a substantive state-

ment on a state’s obligations, was in no way repugnant

with the Medicaid Act’s requirements for state plans. How-

ever, we are troubled by the Amendment’s requirement that

the damage be to physical health, impliedly excluding abor-

tions needed to prevent severe and long-lasting mental

health damage. This distinction, if embodied in a state

plan, would seem to contravene the Medicaid Act’s man-

date that a state may not ‘‘deny ... a required service . . .

solely because of the diagnosis, type of illness or condi-

tion.’’ 42 C.F.R. ¢ 440.230 (1978). Such a discrimination

carried to the point of total denial of abortion services

when serious injury to a person’s mental health if the

pregnancy is carried to term is diagnosed, cannot, we be-

lieve, be considered to be based on medical need. Id. The

discrimination sets up a presumption that physical health

damage is always more serious and hence more important

to prevent than mental health damage, a presumption that

is nothing less than absurd.’ It follows, without further

°In Graves v. Fisher, 361 F. Supp. 1356 (D. Me. 1972), aff’d,

412 U.S. 924 (1973), a three-judge court, including members of

this court, construed requirements imposed on the states by Title

XVI of the Social Security Act analogous to those of Title XIX,

the Medicaid Act. It held that Maine had violated the Social

Security Act and regulations thereunder by excluding a ‘‘category

of applicants for disability assistance on the basis of the source

of the diagnosed impairment’’, id. at 1359, in particular, persons

“suffering solely from psychoneurotic disorders, regardless of

severity or permanence’’. Zd. at 1357. Although the state in that

case had imposed limits on eligibility for medical assistance, and

we are concerned with attempts by a state to restrict the medical

assistance that it provides to eligible recipients, the court’s reason-

ing is equally pertinent here:

‘“‘If an applicant can prove that his disability is the func-

tional equivalent of that of other persons receiving assist-

ance, the source of or medical definition of his disability

should be irrelevant... . [T]he reference in 42 U.S.C. § 1382

(a) (13) to ‘reasonable standards... for determining eligi-

bility, cannot be construed as a license to states to introduce

eligibility conditions which relate neither to the duration nor

to the degree of an applicant’s impairment.’’ Id. at 1359.

See Boisvert v. Zeiller, 334 F. Supp. 403 (D. N.H. 1971).

LS)

bo

PRETERM, INC. VU. DUKAKIS

elaboration, that we could not describe it as ‘‘reasonable’’

or ‘‘consistent with the objectives of the Act’’ to with-

hold treatment in this fashion. 42 U.S.C. § 1396a(a)(17).*°

Contrary to plaintiffs’ assertions, this conclusion does

not compel us to embrace their reading of the Amendment

as a mere withdrawal of federal monies. Although that

reading may permit the Hyde Amendment and the Medi-

eaid Act to co-exist facially by effecting no change in the

Act’s requirements for state plans, it requires us to do

violence to the Medicaid Act on a more pervasive and

fundamental level than would result from reading the

Amendment as a substantive alteration of those require-

ments. The Medicaid program is one of federal and state

cooperation in funding medical assistance ; a complete with-

drawal of the federal prop in the system with the intent

to drop the total cost of providing the service upon the

states, runs directly counter to the basic structure of the

10 Whether the legislators realized that they had come into con-

flict with the Medicaid Act’s requirements by so legislating, or

believed that the Hyde Amendment, although legislative in impact,

was consonant with the Act, we cannot say with certainty. At one

point in the debate, several members appeared to suggest that their

particular versions of the Amendment were consonant with the

Act’s requirements, S¢e 123 Cong. Rec. S. 11048, 11051 (Senators

Schweiker and Brooke). For example, Senator Brooke, arguing

for payment for all abortions deemed medically necessary by a

physician, stated that ‘‘[‘Medically necessary’] are words of art

that are used throughout medical legislation. They are used for

all social security funds and for all medical funds.’’ Jd. at S. 11051.

Perhaps we could infer an intent to repeal portions of the Medi-

eaid Act from the fact that the Congress enacted a far more

restrictive bill than one which, at least according to Senator

Brooke, would be consistent with the Act. We do not believe, how-

ever, that we need find express statements in the debates that the

Amendment would conflict with the Act; it is enough that the

natural result of the clearly expressed intent to legislate was to

ereate a ‘‘positive repugnancy’’ between its restrictions and pro-

visions of the Medicaid Act. Such a repugnancy itself suggests

the intent to repeal. See Morton v. Mancari, 417 U.S. 535, 550

(1974) ; United States v. Borden Co., 308 U.S. 188, 198-99 (1939) ;

Posadas v. National City Bank, 296 U.S. 497, 503 (1936).

OPINIOX OF THE COURT. 23

program? and could seriously crippie a state’s attempts to

provide other necessary medical services embraced by its

plan. |

Moreover, the principle that two statutes should if pos-

sible be found capable of co-existence does not suggest that

we should approach the statute with blinders and reconcile

them at all costs, even when the second enactment is

an appropriations measure. Tennessee Valley Authority

v. Hill,.supra, which plaintiffs have so vigorously invoked

as indicating that either express or implied repeal of

Medicaid is unthinkable, is not authority to the contrary.

Indeed, our analysis of the factors which distinguish that

case from the one at bar indicates that our construction

of Congressional intent is proper. Tennessee Valley Au-

thority v. Hill, supra, involved an unsuccessful argument

that the continued appropriating of funds for the Tellico

Dam repealed br implication the Endangered Species Act

insofar as that Act would otherwise have required con-

struction of the dam to be held up because of the fact

that the snail darter and its habitat. would be placed in

jeopardy. The elements in that case were (1) brief state-

ments of opinion of committee members in a lengthy report,

that (2) monies in a very large appropriation act should

be used to complete a dam, (3) although the act itself did

not identify the approved objects of expenditure, and

(4) the act supposedly repealed pro tanto lay in the juris-

diction of another committee. The Court had no difficulty

11 In McRae v. Mathews, 421 F. Supp. 533, 588 (E.D. N.Y. 1976)

(vacated and remanded on other grounds), see note 6 supra, Judge

Dooling rejected the argument that the Hyde Amendment, for FY

1977, had not altered a state’s obligations to fund abortions required

by the Medicaid Act because:

‘*The argument overlooks the essential] nature of the Medicaid

legislation. The state and federa] governments are linked in

a fiscal partnership to provide for medical assistance to the

needy ; the program is based on the federal initiative. and the

funding is primarily federal (42 U.S.C. §§ 1396, 1896d(b) )."°

24 PRETERM, INC. UV. DUKAKIS

in observing that since legislators are entitled to assume

that appropriated funds are to be ‘‘devoted to purposes

which are lawful’’, 98 S. Ct. at 2300, there was no basis

to suppose that they felt any conflict between funding the

dam and the Endangered Species Act. It also noted that

there was ‘‘no indication that Congress as a whole was

aware of [the committees’] views’’, id., that ‘‘the appro-

priations committees had no jurisdiction over the subject

matter of endangered species’’, id., and that the ‘‘appro-

priations Acts did not themselves identify the projects for

which the sums had been appropriated.’’ Jd. at 2299 n. 35.

Here, in contrast, the objective was a solitary, specific

proscription, not a hidden permitted purpose among a

multitude; and the appropriation related completely to the

subject matter of the affected substantive legislation. In

United States v. Dickerson, 310 U.S. 554 (1940), the Court

faced a situation more apposite to that at bar. Congress

had enacted a proviso, appended to an appropriations bill,

that none of the funds appropriated therein were to be

used for payment ‘‘of any enlistment allowance for ‘re-

enlistments made during the fiscal year ending June 30,

1939, notwithstanding the applicable portions of sections 9

and 10’ of the Act of June 10, 1922.’’ Id. at 555. The Court

concluded that Congress had intended to suspend the

enlistment allowance authorized by § 9 and not merely to

restrict the use of federal funds for that purpose. Id.

at 561. It refused to limit its analysis to the ‘‘plain and

unambiguous’’ language of that statute and turned to the

legislative history which clearly showed Congressional in-

tent to legislate by an appropriations bill. 7d. at 559-62.

Furthermore, the legislative history which we have

turned to in resolving this case does not suffer from the

defects noted by the Tennessee Valley Authority v. Hill

Court. The statement of Congressional intent upon which

we rely is not embodied in appropriations committee re-

OPIXION OF THE COURT. 25

ports, which represent merely the views of its members

and may never have come to the attention of Congress as

a whole. The heated and lengthy debates that led to pas-

sage of the numerous versions of the Hyde Amendment

took place on the fioor of each house, and the views ex-

pressed were those of a wide spectrum of its members.

We recognize the force of our brother’s dissent, that a

court should not infer lightly that Congress has legislated

in an appropriations measure so as to repeal a prior enact-

ment, a legislative process that contravenes its rules, and

that Congress has not, in so many words, stated that the

Hyde Amendment repeals portions of the Medicaid Act.

But we are unable to view this six month intensive debate

—albeit an emotional one—as a mere exercise in cost-shift-

ing. To so conclude ignores statement after statement by

proponents and opponents of the Amendment that its pas-

sage would allow states to choose whether to fund more

abortions than those specified therein and that it would

affect drastically the lives of poor women br closing off

their access to these services. Such a conclusion ignores

as well the unquestionably explicit awareness by the legis-

lators that ther were using the disfavored vehicle of an

appropriations measure to legislate this result and that

they were setting aside their rules to do so. Indeed, were

these expressions of Congressional intent held to be insuffi-

cient in quantity or quality to legislate substantively, we

would in candor be forced to admit that legislation in

appropriations acts was, as a practical matter, out of the

question. Such a determination, regardless of our view of

the wisdom of the course chosen by the legislature, is clearly

beyond the proper scope of this court.

We hold that the legislative history of the Hyde Amend-

ment is consistent with the cooperative federal-state struc-

ture of the Medicaid Act and reveals that the Amendment

constituted a substantive policy decision concerning the

26 PRETERM, INC. UV. DUKAKIS

public funding of abortions which left the states free to

fund more abortions than those for which federal funds

were made available by the Amendment, but did not require

them to do so. The Medicaid Act, to the extent of its

repugnancy with the Hyde Amendment, has therefore been

altered by the Amendment. See United States v. Borden

Co., 308 U.S. 188, 199 (1939).

Our analysis has differed from that of the district court

in this case, most importantly, in our conclusion that the

Medicaid Act does not mandate that a state provide all

medically necessary services as determined by the physi-

cian. The result is the same, however, for we determined

that the Massachusetts Act violates even our less expansive

standard, that theJimitation on services be ‘‘reasonable’’,

‘consistent with the objectives of the Act’’, and not based

‘*solely ... [on] the diagnosis, type of illness or condition’’.

42 U.S.C. § 1396a(a)(17); 42 C.F.R. § 440.230. Further-

more, our decision that the Hyde Amendment was intended

as more than a cost-shifting device is consistent with the

district court’s conclusion on this issue.

The judgment of the district court therefore is affirmed,

enjoining implementation of Stat. i978, ch. 367, 4 2, Item

4402-5000, insofar as it prohibits state reimbursement for

abortions which would qualify for federal reimbursement

under the terms of the Hyde Amendment. This result is

in accord with the state’s request that, should an injunction

issue, it be modified to allow operation of Chapter 367

consistent with the requirements of the Medicaid Act. The

district court properly did not reach the constitutional

arguments raised by the parties, because it had statutory

grounds for decision. Hagans v. Levine, 415 U.S. 528

(1974). We now remand the case for consideration of the

constitutional questions that remain open—namely, whether

the Hyde Amendment, construed as a substantive altera-

tion of the Medicaid Act and thus requiring the states to

DISSENTING OPIXION——BOWNES, J. 27

establish plans that provide abortion services in no more

than those instances which are specified in the Hyde Amend-

ment, is constitutional.

On remand the district court should also afford the plain-

tiffs who were dismissed from the Parent’s Aid Society,

Inc. v. Sharp actions for lack of standing an opportunity

to be heard on the standing issue. Although a court may

dismiss an action at its own instance, as apparently hap-

pened here, it must first afford the parties an opportunity

to oppose the dismissal. See Literature, Inc. v. Quinn, 482

F.2d 372, 374 (1st Cir. 1973).

It is so ordered.

Bowness, Circuit Judge (dissenting). I respectfully dis-

sent. :

While I have no problem with my brethren’s analysis

as to the requirements that the Medicaid Act imposes on a

participating state, I cannot agree that the Hyde Amend-

ment has worked a substantive change in those require-

ments. |

The Hvde Amendment was a rider attached to a general

appropriations bill for the fiscal year 1978. In addition to

making funds available for the Departments of Labor and

Health, Education and Welfare, appropriations were made

for such disparate purposes as continuing projects and

activities as would be available in the District of Columbia

Appropriations Act, the Advisory Neighborhood Commis-

sions and the Disaster Loan Fund of the Small Business

Administration. Section 209 of Pub. L. 95-205; 91 Stat. .

1460 (Dec. 9, 1970).

The language of the paragraph in which the rider was

inserted is important:

Such amounts as may be necessary for projects or

activities provided for in the Departments of Labor,

28 PRETERM, INC. UV. DUKAKIS

and Health, Education, and Welfare, and Related

Agencies Appropriations Act, 1973 (H.R. 7555), at a

rate of operations, and to the extent and in the man-

ner, provided for in such Act, notwithstanding the

provisions of Sec. 106 of this joint resolution: Pro-

vided, 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 except in those instances where severe

and long-lasting physical health damage to the mother

would result if the pregnancy were carried to term

when so determined by two physicians.

Nor are payments prohibited for drugs or devices

to prevent implantation of the fertilized ovum, or for

medical procedures necessary for the termination of

an ectopic pregnancy.

The Secretary shall promptly issue regulations and

establish procedures to ensure that the provisions of

this section are rigorously enforced.

Id. (emphasis added).

There is nothing in the language of the proviso suggest-

ing that Congress intended to repeal the Medicaid Act in

part. The Hyde Amendment specifically addresses itself

to the use of federal funds. The words are clear: ‘‘Pro-

vided, that none of the funds provided for in this paragraph

..’’ The usual rule of statutory construction is to start

with the words of the statute; if they are clear, there is no

need to go further.

When confronted with a statute which is plain and

unambiguous on its face, we ordinarily do not look

to legislative history as a guide to its meaning. Ex

parte Collett, 337 U.S. 55, 61 (1949), and cases cited

DISSENTING OPINION—BOWNES, J. 29

therein. Here it is not necessary to look beyond the

words of the statute. We have undertaken such an

analysis only to meet Mr. Justice Powell’s suggestion

that the ‘‘absurd’’ result reached in this case, post,

at 1, is not in accord with congressional intent.

TVA v. Hill, 46 U.S.L.W. 4673, 4681 1.29 (June 19, 1978).

Although my brethren recognize that the language of

the Hyde Amendment speaks only to the use of federal

funds, they feel that an extensive excursion into legislative

history is necessary because its plain meaning produces a

result at variance with the policy of the legislation as

a whole. This is a bootstrap approach to statutory con-

struction: it allows a court to ignore the plain language of

a statute and rewrite it by drawing upon its legislative

history. While congressional debates and committee re-

ports can be a helpful guide to the intent of an ambigu-

ously worded statute, they should not be used to defeat the

clearly expressed statutory language. The majority opinion

cites United States v. American Trucking Associations,

Inc., 310 U.S. 534, 543-44 (1939), in support of the doctrine

that, when the plain meaning of a statute produces a result

‘‘nlainly at variance with the policy of the legislation as

a whole,’’ it is necessary to delve into legislative history.

But there is no ‘‘legislation as a whole’’ to consider here.

We have an amendment attached to a general appropri-

ations bill. This, of course, is a prime example of why

the courts should be and are extremely reluctant to allow

a rider to an appropriations bill to amend an entirely

separate and distinct statute by implication. See extended

discussion in TVA v. Hill, supra, 46 U.S.L.W. at 4683-85.

Our own observation in Mass. Fin. Serv. v. Securities

Investor Protection, 545 F.2d 754, 757-58 (1st Cir. 1976),

cited in the majority opinion, is pertinent:

It is not our province to decide whether Congress

would have been wiser to draft the SIPC legislation

30 PRETERM, INC. V. DUKAKIS

so as to include firms like MF'S as members, Old Dear-

born Distributing Co. v. Seagram-Distillers Corp., 299

U.S. 183, 195-96, 57 S.Ct. 189, 81 L.Ed. 109 (1936),

and it is no part of our function to extend a statute’s

reach beyond its clearly indicated scope. Guiseppi v.

Walling, 144 F.2d 608, 614-15 (2d Cir. 1944) (Frank,

J.) aff’d sub nom. Gemsco, Inc. v. Walling, 324 U.S.

244, 65 S.Ct. 605, 89 L.Ed. 921 (1945). Rather, ‘‘ [i]t

is our judicial function to apply statutes on the basis

of what Congress has written, not what Congress

might have written.’’ United States v. Great Northern

Ry., 343 U.S. 562, 575, 72 S.Ct. 985, 993, 96 L.Ed. 1142

(1952). Congress remains free to amend SIPA should

it so choose, but as it now stands that act clearly

exempts MFS.

But, even assuming that the legislative history is rele-

vant, I can find nothing in the majority’s excellently re-

searched and documented history of the debate on this

highly emotionally charged subject that clearly indicates

that Congress was doing more than limiting the use of

federal funds. There were, as my brethren point out, two

separate statements, by Congressman Doran and Edwards,

to the effect that only federal funds were involved. The

majority concludes, however, that these observations were

nullified by those portions of the debate in both the House

and Senate that focused on the effect of the amendment

on the poor, t.e., by Congressman Stokes, Meyner, Sears

and Fraser and Senators Packwood, McGovern, Bayh,

Brooke and Javits. But the statements of Congressmen

Doran and Edwards were never expressly refuted.

My brethren state that ‘‘the record is clear that both

houses of Congress were acutely conscious that they were

engaging in substantive legislation.’’ If this is so, it is

hard to understand the absence of any statement during

the course of the lengthy debate that the Hyde Amendment

was making a significant change in the Medicaid Act.

DISSENTING OPINION—BOWNES, J. 31

Surely, someone in the Congress would have been percep-

tive enough and forthright enough to realize the full impli-

cations of the amendment and say so. It is not as clear

to me as it is to my brethren that Congress intended a

pro tanto amendment of the Medicaid Act. The majority

opinion points to the absence from the. debate of any dis-

cussion of the financial effects on the states of being forced

to fund abortions that are determined to be medically

necessary as further evidence of an intended substantive

change in the Medicaid Act. It may also, of course, indicate

that Congress was so emotionally enveloped in this volatile

and disruptive subject that it failed to think through the

implications of what it was doing. In any event, we cannot

construe silence on a subject as a positive expression of

congressional intent.’

We have here a statute whose plain meaning is clear

and whose congressional history can be construed to mean

that a number of congressmen felt that, contrary to what

the statute said, it would effect a substantial change in

the Medicaid Act. If this were merely a matter of balanc-

ing the words of the statute against the words of the debate,

this would be a close case, but the principle disfavoring

repeal by implication and Congress’ own procedural rules

expressly prohibiting changing existing law via an appro-

priations bill, apply with particular pertinence here and

compel a finding that there was no substantive amendment

of the Medicaid Act.

The majority’s attempt to distinguish this case from

TVA v. Hill, supra, rests on the grounds that full-fledged

and lengthy congressional debate is a better gauge of

congressional intent than a committee report. As I noted

1 The suggestion in the majority opinion that funding by a state

alone of medically necessary abortions could cripple a state’s

attempts to provide other necessary medical services in its plar

is not buttressed by any facts or figures in the record or the con

gressional history.

32 PRETERM, INC. V. DUKAKIS

hefore, however, the subject matter of the debate is an

important factor to consider. It would not be inaccurate

to say that the more emotional the subject, the less sure

we can be that the words used reflect considered thought

rather than expressing deeply ingrainec. feelings. I can-

not, as does the majority, ignore the clear teaching of

TVA v. Hill, supra.’

The doctrine disfavoring repeals by implication

‘‘applies with full vigor when ... the subsequent legis-

lation is an appropriations measure.’’ Committee for

Nuclear Responsibility v. Seaborg, 149 U.S. App. D.C.

380, 382, 463 F.2d 783, 785 (1971) (emphasis added) ;

Environmental Defense Fund v. Froehlke, 473 F.2d

346, 355 (CA 8, 1972). This is perhaps an understate-

ment since it would be more accurate to say that the

policy applies with even greater force when the claimed

repeal rests solely on an appropriations act. We rec-

ognize that both substantive enactments and appro-

priations measures are ‘‘acts of Congress,’’ but the

latter have the limited and specific purpose of provid-

ing funds for authorized programs. When voting on

appropriations measures, legislators are entitled to

operate under the assumption that the funds will be

devoted to purposes which are lawful and not for any

purpose forbidden. Without such an assurance, every

appropriations measure would be pregnant with pros-

pects of altering substantive legislation, repealing by

implication any prior statute which might prohibit the

expenditure. Not only would this lead to the absurd

result of requiring Members to review exhaustively

TVA v. Hill, 46 U.'S.L.W. 4673 (June 15, 1978), is merely the

latest in a long line of cases holding that repeals by implication

are not favored. Sce, e.g., United States v. Continental Tuna Corp.,

425 U.S. 164, 168-69 (1976) ; Georgia v. Pennsylvania R. Co., 324

U.S. 489, 456-57 (1945); United States v. Borden Co., 308 U.S.

188, 198-99 (1939) ; Posadas y. National City Bank, 296 U.S. 497,

503 (1936).

DISSENTING OPINION—BOWNES, J. 33

the background of every authorization before voting

on an appropriation, but it would flout the very rules

the Congress carefully adopted to avoid this need.

House Rule XXI(2), for instance, specifically pro-

vides :

‘‘No appropriation shall be reported in any gen-

eral appropriation bill, or be in order as an

amendment thereto, for any expenditure not pre-

viously authorized by law, unless in continuation

of appropriations for such public works as are

already in progress. Nor shall any provision in

any such bill or amendment thereto changing

existing law be im order.’’ (Emphasis added. )

See also Standing Rules of the Senate, Rule 16.4.

Thus, to sustain petitioner’s position, we would be

obliged to assume that Congress meant to pro tanto

repeal §7 of the Act by means of a procedure expressly

prohibited under the rules of Congress.

Id, at 4683,

The majority cites United States v. Dickerson, 310 U.S.

554 (1940), to buttress its position that in rare cases where

congressional intent is clear, an amendment to an appro-

priations bill may effect a change in existing law. In

Dickerson, the Congress did amend a reenlistment allow-

ance statute by a provision tacked on to an appropriation

for the Rural Electrification Administration. But the lan-

guage used in the appropriations rider specifically referred

to the other statute and explicitly suspended its provisions

for the fiscal year in question. Dickerson is, therefore, a

very narrow exception to the established rule. Here, there

is no clear amendment of the Medicaid Act in the appro-

priation proviso and, at the least, some ambiguity in the

congressional history as to what Congress really intended.

I am also troubled by my brethren’s treatment of what

is to me a clear signal in Beal v. Doe, 432 U.S. 438., 444-49

(1977) :

34 PRETERM, INC. UV. DUKAKIS

Although serious statutory questions might be pre-

sented if a state Medicaid plan excluded necessary

medical treatment from its coverage, it is hardly in-

consistent with the objectives of the Act for a State

to refuse to fund wnnecessary—though perhaps desir-

able—medical services.

I read this language as a cautionary instruction to the states

that, while they would still be within the parameters of

the Medicaid Act if they eliminated unnecessary medical

services, they would transgress the statutory scheme by

precluding necessary medical services from coverage.

Which is precisely the situation we confront.

Another factor militating against the result reached by

the majority is Congress’ own rules, As pointed out in

TVA v. Hill, supra, both houses of Congress have a rule

that expressly prohibits changing existing law by an amend-

ment to an appropriation bill. There is scant mention in

the congressional debate of these rules or the fact that both

houses intended to flout them.? Are we to assume that

Congress deliberately evaded and ignored its own pro-

cedural rules, or forgot about them, or was entirely ignor-

ant of them? The only logical conclusion that gives due

deference to Congress’ knowledge and respect for its own

procedural requirements is that the Hyde Amendment was

limited to the use of federal funds only.

The majority opinion focuses on the congressional debate

and finds in it a clear intent to amend the Medicaid Act

by allowing the states to limit necessary medical services

for abortion to those specifically set forth in the Hyde

Amendment.‘ This approach in my opinion distorts the

* Senator Magnuson did state that the amendment should not be

part of an appropriations bill, but did not advert to the Senate

rule. Senator Stennis adverted, somewhat obliquely, to the ‘‘obscure

rules’’ of the Senate. .

* As the majority points out, the requirement that the damage

to the mother be limited to physical health, excluding any mental

health damage, is directly contrary to the specific provisions of

the Medicaid Act that medical services may not be denied ‘solely

DISSENTING OPINION—BOWNES, J. 35

picture. A complete perspective requires a careful look

at all of the factors involved: the words of the statute,

the congressional history, the rules of the Congress pro-

hibiting substantive changes in existing law by an amend-

ment to an appropriations bill, and the well established

principle against repeal by implication, especially by an

amendment to an appropriations bill.

Even if the congressional intent were as clear as the

majority finds, I do not think that it should be allowed to

ride roughshod over firmly established and, at least up

until now, well understood congressional rules and judicial

principles of statutory construction. I would hold that the

Hyde Amendment is limited, as it clearly says, to the

expenditure of federal funds and that the medically neces-

sary requirements of the Medicaid Act still apply to the

states. While the result may be ‘‘anomalous,’’ that is a

matter for Congress, not the courts. To quote again from

TVA v. Hill, supra, at 4684:

We agree with the Court of Appeals that in our

constitutional systein the commitment to the separa-

tion of powers is too fundamental for us to pre-empt

congressional action by judicially decreeing what ac-

cords with ‘‘commonsense and the public weal.’’ Our

Constitution vests such responsibilities in the political

Branches.

because of the diagnosis, type of illness or condition.’’ 42 C.F.R.

§449.10(a)(5)(i) (1977) [recently recodified as 42 C.F.R.

§440.230, 43 Fed. Reg. No. 190 (Sept. 29, 1978)]. Sec also 42

U.S.C. §1896a(a) (10) (A), (C). Rather than reading this language

as a repeal by implication of the Medicaid Act, I would read

‘‘physical’’ as surplusage and strike it, leaving ‘‘health’’ standing

alone. This construction would permit both statutes to be read

in harmony one with the other. ‘‘The courts are not at liberty to

pick and choose among congressional enactments, and when two

statutes are capable of co-existence, it is the duty of the courts,

absent a clearly expressed congressional! intention to the contrary,

to regard each as effective.’’ Morton v. Mancart, 417 U.S. 535, 551

(1974).

Adm. Office, U. 8. Courts — Blanchard Press, Inc., Boston, Mass.