Petition — Freeman v. Reproductive Health Services
Supreme Court brief1980
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Supreme Court, US.
eS ®t
MAY 12 198°
irr cael
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1979
No. 79-1796
DAVID R. FREEMAN,
Director, State of Missouri Department of Social Services,
and,
PHYLLIS J. RESER,
Director, State of Missouri Department of Social Services,
Division of Family Services,
Petitioners,
Vv.
REPRODUCTIVE HEALTH SERVICES,
and,
ROBERT R. DUEMLER, M.D.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
JouHn ASHCROFT
Attorney General
MicuHaE.t L. Botcourt
Assistant Attorney General
Supreme Court Building
P.O. Box 899
Jefferson City, Missouri 65102
(314) 751-3321
Attorneys for Petitioners.
May, 1980
oT TSN EL EE AT LL TTT SST
KELLY PRESS, INC., 201 South Eighth Street, Columbia, Missouri Dial 449-4163
INDEX
Page
Opinions Below ........... ccc recccsccscesneceeccess 3
prea eran rman ree ey yy 2
Questions Presented ............: cece cece cece eee eee 2
Constitutional Provisions, Statutes, and Federal
Regulations Involved ............ eee eeeee eee eeees 3
Biatement of the Case ....66.cccccccsscensswenaewst eas 6
Reasons for Granting the Writ ...............-eee eee 11
I. That Portion of the Decision Below Finding
the Missouri Regulation Incompatiable with
Title XIX is in Conflict with the Applicable
Decision of this Court, and so Misinterprets
the Requirements of Title XIX with Respect
to the Funding of Abortions as to Call for an
Exercise of this Court’s Power of Supervi-
cio n ben can view ccbeaseneene eee 11
II. That Portion of the Decision Below, Finding
Unconstitutional a State Policy of Funding
Those Abortions Eligible for Federal Finan-
cial Participation under the Provisions of the
Hyde Amendment, is in Conflict with the
Principles Announced by the Applicable De-
cisions of this Court, and is Tantamount to a
Finding that the Hyde Amendment itself is
Unconstitutional, an Important Question of
Federal Law which has not been, but should
be, Settled by this Court .............ese0s-: 13
III. The Decision Below, that Attorneys’ Fees
could be Awarded by a District Court in a
Case Decided Under the Supremacy Clause,
Presents an Important Question of Federal
Law which has not been, but should be, Set-
thedl toy Chie Comet. 2.0.5 ince cne seen ecnesaees 17
IV. The Decision Below Conflicts with the De-
cisions of Other Courts of Appeals with Re-
spect to the Proper Interpretation of 42
U.S.C. §1988 as it Applies to the Meaning of
the Term ‘‘Prevailing Party.” ............... 19
V. The Decision Below Awarding Attorneys’
Fees on Appeal Presents an Important Ques-
tion of Federal Law which should be settled
by this Court, i.c., Does 42 U.S.C. ¢1988 Au-
thorize the Federal Courts of Appeals to
Award Attorneys’ Fees ..................... 20
EE ES 20
Appendix 1 (Opinion and Order of Court of Appeals
issued January 9, 1980) ..................00000, A-1l
Appendix 2 (Opinion and Order of Court of Appeals
issued February 11, 1980) ...................../ A-29
Appendix 3 (Opinion and Order of District Court
issued January 26, 1979) ...................... A-30
Appendix 4 (Memorandum and Order of District Court
issued March 7, 1979) ...................00 005. A-48
CITATIONS
Cases
Page
Alyeska Pipeline Service Co. v. Wilderness Society,
421 U.S. 420, 95 S.Ct. 1612, 44 L.Ed.2d 141
| Seep errr ere errr tre eee eT Tee T 17, 2)
Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d
et gs ere rer were error wry rrr reer e 12
Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978) ......... 19
Califano v. McRae, 433 U.S. 916, 97 S.Ct. 2993, 53
Rie TIS AON ks eA ieee sinendaseans 14, 15
D__ R__ v. Mitchell, 456 F.Supp. 609 (D.Utah 1978) ....12
Doe v. Busbee, 471 F.Supp. 1326 (N.D.Ga. 1979) ........ 11
Emma G. v. Edwards, No. 77-1342 (E.D.La. Nov. 27,
rrr rarer renee rere ee rr ee 12
Harris v. McRae, No. 79-1268 (U.S. Supreme Court) ... .16
Hughes v. Repko, 578 F.2d 483 (3rd Cir. 1978) ......... 19
Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d
Ck ee eee Cen er Py ewe are a 13
Marr v. Rife, 545 F.2d 554 (6th Cir. 1976) ............. 20
Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978) ...... 19
Pearson v. Western Electric Company, Western
Electric Installation Organization District Office,
ee BE Be he | rere errr rr eee 20
Planned Parenthood Affiliates of Ohio v. Rhodes, 477
F.Sapp. 529 (S.D.Ohio 1978) ... 20. .ccccesnecces 12
Poelker v. Doe, 432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d
og) gg rerrrre rer re Terre Tr reer rr yy r 13, 14
Preterm Inc. v. Dukakis, 591 F.2d 121 (1st Cir. 1979),
cert, denied, 99 S.Ct. 2182 (1979) .............. 11, 16
Right to Choose v. Byrne, 398 A.2d 587
CePA MEMIEY, BOTOD oc vcvcnccsesiccivvecce 12
Roe v. Casey, 464 F.Supp. 483 (E.D.Pa. 1978) ......... 12
Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d
I I sg eel oie bakes 20
Smith v. Ginsburg, No. 75-0380CH (S.D.W.Va.,
AN kal reg SR Be LG, ee 12
Williams, et al. v. Zbaraz, et al., Nos. 79-4, 79-5, 79-
ee i. | 11
Zbaraz v. Quern, 596 F.2d 196 (7th Cir. 1979), petition
for cert. filed, 48 U.S.L.W. 3013 (U.S. July 24,
ee eu hese Ney Vbaa had we wee ees 11
Miscellaneous
We is PI, RE SE oi vcccn cn ecccccnesesesecss 3
es cn ha x bad h600 se oe's 6 ua'eoe oi 2
RS en ere rae rae 3, 5
42 U.S.C. $1396, et seq., Title XIX ........... ccc eeee. 3
oe GS Ee ee 4
Se Se GES 4
ee 4
ec iciccsensvacscsccecs aR ie 7
RE CTT TTT Teer eee T eee eee 6
re hee pW ceed vehecn seuss 7
I ko criviek ewes tnccsconenss 7
Hyde Amendment Act of Oct. 20, 1978, Pub.L. No.
96-480, §210, 92 Stat. 1666 ..... cc cccccccesccecces 5
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1979
No.
DAVID R. FREEMAN,
Director, State of Missouri Department of Social Services,
and,
PHYLLIS J. RESER,
Director, State of Missouri Department of Social Services,
Division of Family Services,
Petitioners,
Vv.
REPRODUCTIVE HEALTH SERVICES,
and,
ROBERT R. DUEMLER, M.D.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
The petitioners, David R. Freeman and Phyllis J.
Reser, respectfully pray that a writ of certiorari issue to
review the judgment and opinion of the United States
Court of Appeals for the Eighth Circuit entered in this
proceeding on January 9, 1980 and that Court’s order in
response to the petition for rehearing entered on February
11, 1980.
OPINIONS BELOW
The opinion of the Court of Appeals, officially re-
ported at 614 F.2d 585 (8th Cir. 1980), appears in Appendix
1 hereto. The Eighth Circuit’s order in response to the pe-
tition for rehearing, not reported, appears as Appendix 2
hereto. The opinions of the United States District Court for
the Western District of Missouri, both an ‘‘Opinion and
Order’’ entered on January 26, 1979 and a ‘‘Memorandum
and Order’’ entered on March 7, 1979, not yet reported, ap-
pear as Appendices 3 and 4.
JURISDICTION
The opinion of the Court of Appeals for the Eighth
Circuit was entered on January 9, 1980. The Eighth Cir-
cuit ruled upon a timely petition for rehearing on Febru-
ary 11, 1980, and this petition for certiorari was filed
within ninety (90) days of that date. This Court’s juris-
diction is invoked under 28 U.S.C. §1254(1).
QUESTIONS PRESENTED
1. Whether Title XIX forbids a participating state
from instituting a Medicaid policy of subsidizing only life-
saving abortions.
2. Whether the United States Constitution permits a
state, participating in the Medicaid program, to include
within its Medicaid coverage only those abortions quali-
fying for federal financial participation pursuant to the
Hyde Amendment. The resolution of this question will
require, for all practical purposes, a judgment as to the
constitutionality of the Hyde Amendment itself.
a]
vo
3. Whether 42 U.S.C. §1988 authorizes a district court
to award attorneys’ fees in a case where a state regulation
is found to be inconsistent with Title XIX of the Social
Security Act and is thereby invalidated under the Suprem-
acy Clause.
4. Whether attorneys’ fees, awarded by a district
court pursuant to 42 U.S.C. §1988, should be restricted to
an amount fairly reflecting the extent to which the party
receiving the fees has prevailed.
5. Whether 42 U.S.C. §1988 confers upon the federal
courts of appeals the authority to award attorneys’ fees
to prevailing parties.
CONSTITUTIONAL PROVISIONS, STATUTES,
AND FEDERAL REGULATIONS INVOLVED
Section 1 of the Fourteenth Amendment to the Consti-
tution of the United States:
‘All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the priviliges or immunities of
citizens of the United States; nor shall any State de-
prive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.’’
42 U.S.C. §1396:
‘‘For the purpose of enabling each State, as far
as practicable under the conditions in such State, to fur-
nish (1) medical assistance on behalf of families with
dependent children and of aged, blind, or disabled in-
dividuals, whose income and resources are insufficient
4
to meet the costs of necessary medical services, and
(2) rehabilitation and other services to help such
families and individuals attain or retain capability for
independence or self-care, there is hereby authorized
to be appropriated for each fiscal vear a sum suf-
ficient to carry out the purposes of this subchapter.
The sums made available under this section shall be
used for making payments to States which have sub-
mitted, and had approved by the Secretary of Health,
Education, and Welfare, State plans for medical as-
sistance.’’
42 U.S.C. §1396a(a) (17), in pertinent part:
‘‘A State plan for medical assistance must—
(17) include reasonable standards . . . for de-
termining eligibility for and the extent of medical as-
sistance under the plan which . . . are consistent with
the objectives of this subchapter, . . .”’
42 U.S.C. §1396a(a)(10)(B), in pertinent part:
‘‘A State plan for medical assistance must—
(10) provide—
(B) that the medical assistance made available
to any individual described in clause (A)—
(i) shall not be less in amount, duration, or
scope than the medical assistance made available
to any other such individual, and
(ii) shall not be less in amount, duration, or
scope than the medical assistance made available
to individuals not described in clause (A);...”’
42 U.S.C. §1396(a)(f), in pertinent part:
‘‘Notwithstanding any other provision of this
subchapter, ...no State ... shall be required to pro-
vide medical assistance to any aged, blind, or disabled
9]
individual .. . for any month unless such State would
be (or would have been) required to provide medical
assistance to such individual for such month had its
plan for medical assistance approved under this sub-
chapter and in effect on January 1, 1972, been in ef-
fect in such month, ...’’
Hyde Amendment Act of Oct. 20, 1978, Pub.L. No. 99-
480, §210, 92 Stat. 1586:
‘‘None of the funds contained in this Act shall be
used to perform abortions except when the life of the
mother would be endangered if the fetus were carried
to term; or except for such medical procedures neces-
sary for the victims of rape or incest, when such rape
or incest has been reported promptly to a law enforce-
ment agency or public health service, or except in those
instances were severe and long-lasting physical health
damage to the mother would result if the pregnancy
were carried to term when so determined to by two
physicians.”’
42 U.S.C. §1988:
‘‘The jurisdiction in civil and criminal matters con-
ferred on the district courts by the provisions of this
chapter and Title 18, for the protection of all persons
in the United States in their civil rights, and for their
vindication, shall be exercised and enforced in con-
formity with the laws of the United States, so far as
such laws are suitable to carry the same into effect;
but in all cases where they are not adapted to the ob-
ject, or are deficient in the provisions necessary to
furnish suitable remedies and punish offenses against
law, the common law, as modified and changed by the
constitution and statutes of the State wherein the court
having jurisdiction of such civil or criminal cause is
6
held, so far as the same is not inconsistent with the
Constitution and laws of the United States, shall be
extended to and govern the said courts in the trial and
disposition of the cause, and, if it is of a criminal na-
ture, in the infliction of punishment on the party found
guilty. In any action or proceeding to enforce a pro-
vision of sections 1981, 1982, 1983, 1985, and 1986 of
this title, title IX of Public Law 92-318, or in any civil
action or proceeding, by or on behalf of the United
States of America, to enforce, or charging a violation
of, a provision of the United States Internal Revenue
Code, or title VI of the Civil Rights Act of 1964, the
court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s
fee as part of the costs.”’
42 C.F.R. §440.230, in pertinent part:
**(b) Each service must be sufficient in amount,
duration and scope to reasonly achieve its purpose.
(c)(1) The medicaid agency may not [arbitrarily ]
deny or reduce the amount, duration or scope of re-
quired service under §4¢ 440.210 [for the categorically
needy] and 440.220 [for the medically needy] to an
otherwise eligible recipient solely because the diag-
nosis, type of illness or condition.
(2) The ageney may place appropriate limits on
a service based on [such criteria] as [medical neces-
sity or utilization control procedures].”’
STATEMENT OF THE CASE
The respondents initiated this lawsuit by filing a
complaint for declaratory judgment and injunctive relief
in the United States District Court for the Western Dis-
trict of Missouri. The complaint premised federal court
7
jurisdiction on 28 U.S.C. §§1331 and 1343, the Federal
Declaratory Judgment Act, 28 U.S.C. §§2201 and 2202, and
42 U.S.C. §1983. The relief afforded by the District Court
seems most clearly to be founded on the Federal Declara-
tory Judgment Act. Challenged on entirely constitutional
grounds was a regulation promulgated by the Missouri De-
partment of Social Services, which regulation defined the
term ‘‘medically indicated’’ as that term is used in Section
208.152(12), RSMo 1978.
By regulation 13 C.S.R. 440-81.100, Missouri has pro-
vided:
‘*(1) The Division of Family Services shall expend
federal and state funds for physician and hospital
services for abortions only where an abortion is medi-
cally indicated.
(2) ‘*Medically indicated’’ shall mean where the at-
tending physician in the exercise of his best clinical,
medical judgment believes a fullterm pregnancy and
childbirth would cause cessation of the mother’s life.
(3) The attending physician shall certify to the direc-
tor, the Division of Family Services, his medical diag-
nosis that a fullterm pregnancy and childbirth would
cause cessation of the mother’s life.
(4) The attending physician shall submit to the direc-
tor of the Division of Family Services the patient’s
written consent to the abortion; such ecnsent shall
contain an affirmative statement that her consent is
informed and freely given and is not the result of
coercion.’’
The complaint filed in the district court did not allege
that the challenged regulation was in violation of Title
XIX of the Social Security Act or that any other statutory
bases existed ior invalidation of said regulation.
8
The District Court entered a temporary restraining
order which, after amendment, enjoined the enforcement
of the challenged Missouri regulation except in accord-
ance with the abortion funding position taken by the De-
partment of Health, Education and Welfare pursuant to
the Hyde Amendment.
The Secretary of the Department of Health, Education
and Welfare, pursuant to the explicit directions of the Dis-
trict Court, filed an amicus curiae brief stating his position
that the challenged regulation was constitutionally permis-
sible. The Secretary stated:
‘*The State of Missouri has substantial interests in
protecting the potential life of a fetus and in its rate
of population growth. There can be no question that
these interests are rationally related to the Missouri
regulation challenged by the plaintiffs. The state’s in-
terests are no less substantial because the Missouri
regulation prohibits the use of Medicaid funds for
abortions unless ‘a full-term pregnancy and childbirth
would cause cessation of the mother’s life.’ The Su-
preme Court has stated very plainly that a legislative
determination which favors childbirth over abortion is
both a rational and constitutional policy.
In light of the holdings in Maher and Poelker, it
is clear that plaintiffs’ claims in the present case have
been decided by the Supreme Court. [Footnote omit-
ted. ]
~ * *
Thus, the Supreme Court has recognized that a
legislative determination can be rationally made that
no public funds will be used for abortions except where
a full-term pregnancy will cause the cessation of the
mother’s life.’’
9
Pursuant to mutual stipulation, this case was submit-
ted for decision to the District Court on reciprocal motions
for summary judgment.
The District Court filed its ‘‘Opinion and Order’’ on
January 26, 1979. That Court, the Honorable Elmo B.
Hunter presiding, held that the State of Missouri had, in
limiting public funding of abortions to those instances
where ‘‘a full-term pregnancy and childbirth would cause
cessation of the mother’s life’’, acted in violation of the
dictates of the Medicaid Act and the regulations promul-
gated thereunder. The Court enjoined the defendants from
enforcing the challenged regulation except insofar as it
was rendered consistent with the current Hyde Amendment
by the Court’s order. In that regard, the District Court
concluded that applicable statutory and regulatory law
required only that Missouri fund abortions for the needy
to the extent that it was eligible to receive reimbursement
therefor pursuant to the substantive sharing formula set
forth in the Medicaid statute. Finally, the District Court
ruled that the challenged regulation, as modified to be-
come consistent with the Hyde Amendment, was not viola-
tive of the Equal Protection Clause or any other of the
constitutional bases advanced by the plaintiffs.
By a ‘‘Memorandum and Order’’ filed March 7, 1979,
the District Court sustained the respondents’ motion to
amend judgment by awarding four thousand four hundred
and forty-two dollars and fifty cents ($4,442.50) in at-
torneys’ fees.
On appeal, in an opinion filed January 9, 1980, the
United States Court of Appeals for the Eighth Circuit af-
firmed that portion of the District Court’s order finding
the challenged regulation to be inconsistent with Title XIX,
affirmed that portion of the District Court’s opinion find-
ing that the Hyde Amendment constituted a substantive
10
statutory alteration of Missouri’s abortion subsidy obliga-
tions under Title XIX, but reversed the District Court on
the issue of the regulation’s constitutionality as amended
by the District Court to become consistent with the Hvde
Amendment. The effect of the District Court’s opinion
had been to require Missouri to participate in the fund-
ing of those abortions eligible for federal fundings under
the provisions of the Hyde Amendment. In essence, the
Court of Appeals found that a state, funding exactly those
abortions prescribed by the Hyde Amendment, was in
violation of the Equal Protection Clause of the Fourteenth
Amendment. The judgment of the Court of Appeals was
tantamount to a finding that the Hyde Amendment itself
is unconstitutional.
On February 11, 1980, upon respondents’ petition for a
rehearing, the Eighth Circuit awarded four thousand three
hundred and ninety-three and one cent ($4,393.01) in at-
torneys’ fees and costs.
The mandate of the Eighth Circuit was issued to the
District Court on February 21, 1980.
11
saagenrs*
REASONS FOR GRANTING THE WRIT
I
That portion of the decision below finding the Missouri
regulation incompatiable with Title IX is in conflict with
the applicable decision of this court, and so misintreprets
the requirements of Title XIX with respect to the funding
of abortions as to call for an exercise of this court’s power
of supervision.
Both the District Court and the Court of Appeals
judged a Missouri regulation limiting Medicaid funding
to those abortions wherein a fullterm pregnancy and
childbirth would cause cessation of the mother’s life as in-
compatiable with the Federal Medicaid Act (Title XIX).
Very recently, this Court heard oral argument in the case
of Williams, et al. v. Zbaraz, et al., Nos. 79-4, 79-5, and 79-
491. That case was extensively briefed before this Court
and involved a question of whether an Illinois limitation
on abortion funding, similar to the restriction inherent to
the challenged Missouri regulation in this case, was in
violation of Title XIX of the Social Security Act. The ex-
tensive proceedings already conducted before this Court
clearly indicate that the matter of a state’s restriction on
abortion funding and the compatiability of such a restric-
tion with the Social Security Act is a significant and re-
curring issue. That many states have chosen to restric-
tively define categories of abortions eligible for Medicaid
funding, and that the issue presents a recurring problem to
the judiciary, is demonstrated by the numerous cases on
the subject. See, e.g., Zbaraz v. Quern, 596 F.2d 196 (7th
Cir. 1979), petition for cert. filed, 48 U.S.L.W. 3013 (U.S.
July 24, 1979)(No. 79-64); Preterm Inc. v. Dukakis, 591
F.2d 121 (1st Cir. 1979), cert. denied, 99 S.Ct. 2182, 2183
(1979) ; Doe v. Busbee, 471 F.Supp. 1326 (N.D.Ga. 1979) ;
12
Planned Parenthood Affiliates of Ohio v. Rhodes, 477
F.Supp. 529 (S.D.Ohio 1979); Roe v. Casey, 464 F.Supp.
483 (E.D.Pa. 1978); Emma G. v. Edwards, No. 77-1342
(E.D.La. Nov. 27, 1978); Smith v. Ginsburg, No. 75-
0380CH (S.D.W.Va., May 9, 1978); Right to Choose v.
Byrne, 398 A.2d 587 (N.J.Super.Ct.Ch.Div. 1979) ; D__ R__
v. Mitchell, 456 F.Supp. 609 (D.Utah 1978).
It would appear from the judicial activity on the sub-
ject that the question of what abortions Title XIX requires
states to fund is one which should be settled by this Court.
In actuality, however, this Court has already resolved the
issue in Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d
464 (1977), and the decision of the court below was in
conflict with that applicable Supreme Court opinion. At
issue in Beal v. Doe, supra, was the validity of a Pennsyl-
vania statute defining the term ‘‘medically necessary’’ as
when ‘‘[t]here is documented medical evidence that con-
tinuance of the pregnancy may threaten the health of the
mother.’’ 432 U.S. at 441 n.3. That Pennsylvania statute and
the Missouri regulation at issue in this case are indis-
tinguishable for all practical purposes. This Court held
that Title XIX does not require participating states to fund
every medical procedure, but that each state is given broad
discretion to determine how much medical assistance is
reasonable and consistent with Title XIX; that it is not
inconsistent with Title XIX to refuse to. fund unnecessary,
although perhaps desirable, medical services; that the
Court would not presume that Congress intended to condi-
tion state participation in Medicaid upon the state’s will-
ingness to compromise its strong interest in encouraging
normal childbirth; and, given the fact that abortions were
unlawful in most states at the time Congress passed Title
XIX, it is not consistent to suppose that Congress intended
to require, as opposed to permit, participating states to
fund nontherapeutic abortions. In fact, at the time Congress
13
passed Title XIX, in Missouri as well as in most other
states, the only ‘‘therapeutic’’ abortions were those neces-
sary to save the life of the mother or unborn child. In
Beal, this Court also took into account the position of the
Department of Health, Education and Welfare, which
agency administers Title XIX, that the Act allows but
does not mandate funding of nontherapeutie abortions. The
Eighth Circuit refused to abide by the position of HEW
in the present case.
This conflict between the decision below and the an-
nounced position of this Court in Beal v. Doe, supra, justi-
fies a grant of certiorari to review the judgment of the
Eighth Circuit.
The petitioners also believe that the court below simply
misconstrued and misinterpreted the requirements of Title
XIX. Should certiorari issue, the petitioners intend to
address the actual statutory requirements inherent to the
Social Security Act in their brief.
Il.
That portion of the decision below, finding unconsti-
tutional a state policy of funding those abortions eligible for
federal financial participation under the provisions of the
Hyde Amendment, is in conflict with the principles an-
nounced by the applicable decisions of this court, and
is tantamount to a finding that the Hyde Amendment itself
is unconstitutional, an important question of federal law
which has not been, but should be, settled by this court.
Although this Court has not considered the precise
issue of the constitutionality of the Hyde Amendment, the
decision below is in conflict with the action taken by this
Court in the eases of Maher v. Roe, 432 U.S. 464, 97 S.Ct.
2376, 53 L.Ed.2d 484 (1977); Poelker v. Doe, 432 U.S. 519,
14
97 S.Ct. 2391, 53 L.Ed.2d 528 (1977); and Califano v.
McRae, 433 U.S. 916, 97 S.Ct. 2993, 53 L.Ed.2d 1103 (1977).
In this case, the Eighth Circuit found a fundamental con-
stitutional right to exist requiring strict judicial serutiny
and a compelling state interest. At issue below and in
Maher v. Roe, supra, were state restrictions on the types of
abortions that would be funded. But, in Maher, this Court
found that there was no fundamental constitutional right
to a state financed abortion, and that a state need not show
a compelling interest in order to justify a regulation limit-
ing those abortions for which public monies would be made
available.
‘‘We think it abundantly clear that a State is not re-
quired to show a compelling interest for its policy
choice to favor normal childbirth any more than a
State must so justify its election to fund public but
not private education.’’ 432 U.S. at 477.
In that case, the Court applied a lenient ‘‘rational basis”?
standard in judging a state’s welfare abortion funding
policy. The court below, in direct conflict with the ap-
proach taken by this Court in Maher, required Missouri to
show and prove a compelling interest. The application of
a strict judicial scrutiny approach to the equal protection
ramifications of the Missouri regulation at issue puts the
Eighth Circuit in direct conflict with the equal protection
analysis announced by this Court for issues respecting the
funding of abortions.
The court below also ignored the decision of this
Court in Poelker v. Doe, 432 U.S. 019, 97 S.Ct. 2391, 53
L.Ed.2d 528 (1977). At issue in that case was the consti-
tutionality of a policy directive of the Mayor of the City
of St. Louis prohibiting the performance of abortions in
that city’s hospitals ‘‘except when there was a threat of
grave physiological injury or death to the mother.’’ 432
1d
U.S. at 520. In Poelker, this Court was required to reverse
the Eighth Cireuit. Relying on the principles set down in
Maher v. Roe, supra, this Court found no constitutional
violation by the City of St. Louis in electing, as a policy
choice, to provide publically financed hospital services for
childbirth and not providing corresponding services for
nontherapeutic abortions.
There has been a previous attempt to have this Court
declare the Hyde Amendment unconstitutional. In Cali-
fano v. McRae, 433 U.S. 916, 97 S.Ct. 2993, 53 L.Ed.2d 1103
(1977), this Court ordered a judgment granting a pre-
liminary injunction against the original Hyde Amendment
vacated, and required that further hearings be held in light
of the rulings in Beal, Maher and Poelker. The first Hyde
Amendment, which was before the Supreme Court in Cali-
fano v. McRae, limited the expenditure of public funds to
life-endangering pregnancies. The version of the Hyde
Amendment which the District Court imposed upon the
State of Missouri, by its decision modifying the challenged
regulation, also takes into account those instances ‘‘where
severe and long-lasting physical health damage to the
mother would result if the pregnancy were carried to
term. ...’’ The Hyde Amendment at issue in Califano v.
McRae was more restrictive than the Hyde Amendment
position followed by Missouri and found unconstitutional
by the lower court, and more restrictive than the abortion
funding regulations of Pennsylvania and Connecticut in
Beal and Maher.
These conflicts between the position taken by the court
below and the principles announced by this Court in ap-
plicable cases justify the grant of certiorari to review the
opinion of the Eighth Circuit.
This Court has not, in specific terms, announced a
position on the constitutionality of the Hyde Amendment.
16
Very recently, it has heard oral argument on the issue in
the case of Harris v. McRae, No. 79-1268. The issue is of
significant and wide-spread importance. The Hyde Amend-
ment effected federal dollars available to all states for the
purpose of abortion funding. And, in its decision below,
the district court found that the Hyde Amendment subse-
quently altered the statutory requirements of Title XIX
so as to allow Missouri, as a statutory matter, to fund only
those abortions covered by the Amendment. See also, Pre-
term, Inc. v. Dukakis, 591 F.2d 121 (1st Cir. 1979). The
court of appeals found that Missouri could not constitu-
tionally maintain and enforce a Hyde Amendment statutory
scheme for funding abortions. As the Kighth Circuit stated,
‘‘Our own constitutional holding, of course, does
not touch the Hyde Amendment because the plaintiffs
have not attacked it and because the United States is
not a party, see 28 U.S.C. § 2403(a). We do acknowl-
edge, however, that our judgment of the constitution-
ality of a Missouri statutory scheme paralleling the
Hyde Amendment suggests what our judgment of the
Hyde Amendment would be, were it properly before
us.’’ Appendix 1, page A-12 n.13.
If this Court should determine that applicable de-
cisions previously announced do not precisely resolve the
constitutional issue existing in this case, then the petition-
ers submit that the constitutionality of the Missouri policy,
modified by the District Court so as to be completely con-
sistent with the provisions of the Hyde Amendment, is an
important question of federal law which should be settled
by this Court.
ee
17
IIL.
The decision below, that attorneys’ fees could be
awarded by a district court in a case decided under the
supremacy clause, presents an important question of fed-
eral law which has not been, but should be, settled by this
court.
In the District Court, the respondents challenge? the
Missouri abortion funding regulation on multiple consti-
tutional bases. The respondents alleged that the jurisdic-
tion of the District Court was grounded, in part, on 42
U.S.C. §1983.
The Court of Appeals held that:
“The district court awarded plaintiffs attorneys’
fees because they prevailed on their claim that the
Missouri regulation is contrary to Title XIX, although
the scope of relief was restricted under the court’s in-
terpretation of the Hyde Amendment. Citing Lund v.
Affleck, 442 F. Supp. 1109, 1113 (D.R.I. 1977), the dis-
trict court decided that plaintiffs’ lack of success be-
low on their substantial constitutional claim was no
bar to an award of attorneys’ fees. We agree. See gen-
erally Kimbrough v. Arkansas Activities Association,
574 F.2d 423 (8th Cir. 1978).’’ Appendix 1, page A-27.
The Civil Rights Attorneys’ Fees Award Act of 1976
confers discretion on the district courts to allow reasonable
attorneys fees in actions to enforce the provisions of spe-
cific federal statutory law, including §1983.
In Alyeska Pipeline Service Co. v. Wilderness Society,
421 U.S. 420, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), this
Court reaffirmed the American Rule, i.e., that prevailing
litigants are not ordinarily entitled to collect reasonable
attorneys’ fees from the losers. The Court went on to de-
clare that only in such cases were Congress has specifically
18
carved out statutory exceptions to the general rule with re-
spect to attorneys’ fees awards do the federal courts have
authority to award attorneys’ fees. Jd. at 269. Congress
passed the Fees Award Act in reaction to the Supreme
Court decision in Alyeska Pipeline. Congress did not in-
clude the Supremacy Clause, the Federal Declaratory
Judgment Act, or Title XIX.
Contrary to the language of the court below, the re-
spondents did not claim in their pleadings that the Missouri
regulation was contrary to Title XIX. Their legal theories
were solely constitutional. Nevertheless, the District Court
granted them limited relief under the Supremacy Clause,
finding as a matter of law that the Missouri regulation
was contrary to Title XIX, a decision consistent with a dis-
trict court’s declaratory judgment powers.
This Court has not decided that awards of attorneys’
fees are proper in declaratory judgment cases, finding con-
flicts between federal statutory laws and state regulations,
under the Supremacy Clause. Likewise, 42 U.S.C. §1988
does not justify such awards. The respondents may have
cited §1983 in their pleadings, but relief was granted only
a Supremacy Clause basis. Because, as more fully dis-
cussed in reason No. II of this writ, the petitioners believe
that no constitutional cause of action existed, the mere
recitation of §1983 as a jurisdictional basis should not
justify an award of attorneys’ fees. A decision by this
Court on this issue would address a significant and wide-
spread problem. States are increasingly being subjected to
requests for attorneys’ fees. Due to Alyeska Pipeline, 42
U.S.C. $1988 must be interpreted narrowly. The states are
entitled to an pronouncement by this Court respecting the
nature of cases which will qualify for attorneys’ fees
awards.
19
IV
poco
The decision below conflicts with the decisions of other
courts of appeals with respect to the proper interpretation
of 42 U.S.C. §1988 as it applies to the meaning of the term
‘‘prevailing party.’’
Section 1988 of Title 42 grants the district courts dis-
cretion to award attorneys’ fees to prevailing parties.
In the District Court, the respondents sought a judg-
ment that Missouri should be required to fund all abortions
found by attending physicians to be medically necessary.
The relief actually granted by the District Court was
limited to a requirement that Missouri fund Medicaid abor-
tions in a manner consistent with the provisions of the
Hyde Amendment. This was, indeed, limited relief, in that
the Hyde Amendment, as a practical matter, will result in
very few abortions being funded which would not have been
funded under the Missouri regulation as drafted. Neverthe-
less, the District Court awarded attorneys’ fees on the basis
of all hours claimed by counsel for the respondents.
Citing its own decision in Brown v. Bathke, 588 F.2d
634, 638 (8th Cir. 1978), the Eighth Circuit affirmed the
District Court’s exercise of discretion in awarding attor-
neys’ fees based on all the work of the attorneys for re-
spondents. Appendix 1, page A-27.
The decision below and Brown v. Bathke, supra, are in
conflict with the decision of the First Circuit in Nadeau v.
Helgemoe, 581 F.2d 275, 279 (1st Cir. 1978), that the amount
of attorneys’ fees received by a prevailing party should be
based on the work performed on the issues on which the
prevailing party was successful.
The decisions of the Eighth Circuit also conflict with
the Third Circuit opinion in Hughes v. Repko, 578 F.2d
483 (3rd Cir. 1978), in which the court directed a district
20
court to give a prevailing party credit only for hours
which were relatively supportive of successful claims.
The decision below is also in conflict with the posi-
tion of the Tenth Circuit, Pearson v. Western Electric
Company, Western Electric Installation Organization Dis-
trict Office, 542 F.2d 1150 (10th Cir. 1976), the Ninth Cir-
cuit, Schaeffer v. San Diego Yellow Cabs. Inc., 462 F.2d
1002 (9th Cir. 1972), and the Sixth Circuit, Marr v. Rife,
040 F.2d 554 (6th Cir. 1976).
It is important that these conflicts between the circuit
courts of appeals be resolved by this Court. The states are
increasingly becoming involved in requests for attorneys’
fees under (1988. Although the actual monetary amount in
this case is not large, Missouri is presently involved in
the litigation of cases in which massive attorney’s fees have
been or will eventually be sought. The experience of Mis-
souri is that, typically, plaintiffs will institute cases con-
taining multiple factual issues basing the relief sought on
alternative legal theories. If they are at all successful, gen-
eral experience has been that such plaintiffs prevail only
on a limited number of the factual issues litigated and that
the relief given, if any, is based on one of several alterna-
tive legal theories. It is very important that the matter in
which the term ‘‘prevailing party’’ is to be interpreted
should receive attention by this Court. It is totally unfair
that states, as defendants, should be required to compen-
sate counsel for all hours spent on a complex case when
the success of that counsel is severely limited.
V.
The decision below awarding attorneys’ fees on appeal
presents an important question of federal law which should
be settled by this court, i.c., does 42 U.S.C. §1988 authorize
the federal courts of appeals to award attorneys’ fees.
21
On February 11, 1980, in response to the respondents’
petition for rehearing, the Court below awarded three thou-
sand dollars in attorneys’ fees on appeal.
Neither 42 U.S.C. §1988 nor any other federal statu-
tory provision expressly authorizes the federal courts of
appeals to award attorneys’ fees. Without such express
authorization, the authority to award such fees does not
exist. Alyeska Pipeline Service Co. v. Wilderness Society,
421 U.S. 420, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Section
1988, by its specific terms, confers jurisdictional powers
upon the district courts, including the diseretion to award
attorneys’ fees to prevailing parties.
The Eighth Circuit has, as a routine matter, been
awarding attorneys’ fees on appeal claiming jurisdiction
to do so under $1988. Unless this Court addresses, for the
first time, whether 41988 permits the federal courts of ap-
peal to award attorneys’ fees, it must be assumed that the
Righth Circuit will continue to make such awards without
authority or jurisdiction.
CONCLUSION
For these reasons, a writ of certiorari should issue to
review the judgment and opinion of the Eighth Circuit.
Respectfully submitted,
JoHN ASHCROFT
Attorney General
MicuHae. L. Boricourt
Assistant Attorney General
Supreme Court Building
P.O. Box 899
Jefferson City, Missouri 65102
(314) 751-3321
Attorneys for Petitioners.
May, 1980
A-l
APPENDIX 1
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 79-1275
REPRODUCTIVE HEALTH SERVICES,
ROBERT H. DUEMLER, M_D.,
MICHAEL FREIMAN, M.D.
Vv.
DAVID R. FREEMAN, Director, State of
Missouri Department of Social Services, and
PHYLLIS J. RESER, Director, Department of
Social Services, Division of Family Services,
State of Missouri,
Appellants,
Appellees.
No. 79-1346
REPRODUCTIVE HEALTH SERVICES,
ROBERT H. DUEMLER, M_D.,
MICHAEL FREIMAN, M_D.,
Vv.
DAVID R. FREEMAN, Director, State of
Missouri Department of Social Services, and
PHYLLIS J. RESER, Director, De ent of
Social Services, Division of Family Services,
State of Missouri,
Appellees,
Appellants. ;
A-2
Submitted: October 8, 1979
Filed: January 9, 1980
Before ROSS and STEPHENSON, Circuit Judges, and
McMANUS, *District Court Judge.
STEPHENSON, Circuit Judge.
At issue is the validity of a Missouri medical assist-
ance regulation that makes public subsidy of abortions
available only where a full-term pregnancy and childbirth
would cause the death of the mother. The district court’
held the regulation invalid on the basis that it conflicted
with the Federal Medicaid Act (Title XIX). The court
further held, however, that Missouri could legally refuse
to subsidize abortion expenses for which it would receive
no federal reimbursement under the Hyde Amendment.’
The court then determined that Missouri’s abortion subsidy
scheme, when made consistent with Title XIX as affected
by the Hyde Amendment, was constitutionally permissible.
The court awarded attorneys’ fees to plaintiffs. We affirm
the result of the court’s statutory holdings and its award
of attorneys’ fees, but reverse its holding that Missouri
can constitutionally withhold subsides for all non-Hyde
Amendment abortions.
iThe Honorable Elmo B. Hunter, United States District Judge for the
Western District of Missouri.
2The Hyde Amendment then in effect forbade the use of federal funds
for abortions except to save the woman’s life, prevent severe and long-
lasting physical health damage, or provide medical procedures necessary
for the victims of rape or incest.
*The Honorable Edward J. McManus, Chief Judge, United States Dis-
trict Court for the Northern District of Iowa, sitting by designation.
I. Background
Missouri received federal aid under the Federal Medi-
caid Act, Title XIX of the Social Security Act of 1965.
Missouri uses this federal aid, supplemented by its own
funds, to help its needy meet the expenses of several medi-
cal services. Through its Division of Family Services,’ Mis-
souri subsidizes hospital care, out-patient care, physicians’
services, and family planning. Mo. Ann. Stat. § 208.152
(Vernon Supp. 1979). By regulation 13 C.S.R. § 40-81.100,
however, Missouri has provided:
(1) The Division of Family Services shall expend
federal and state funds for physicians and hospital
services for abortions only where an abortion is medi-
cally indicated.
(2) ‘‘Medically indicated’’ shall mean where the at-
tending physician in the exercise of his best clinical,
medical judgment believes a fullterm pregnancy and
childbirth would cause cessation of the mother’s life.
(3) The attending physician shall certify to the direc-
tor, the Division of Family Services, his medical diag-
nosis that a fullterm pregnancy and childbirth would
cause cessation of the mother’s life.
(4) The attending physician shall submit to the direc-
tor of the Division of Family Services the patient’s
written consent to the abortion; such consent shall con-
tain an affirmative statement that her consent is in-
formed and freely given and is not the result of co-
ercion.
Plaintiffs (physicians and a medical clinic financially
injured by the regulation) sought declaratory and in-
3See Mo. Ann. Stat. § 208.152 (Vernon Supp. 1979); affidavit of Thomas
E. Singleton, Deputy Director of Medical Services, Division of Family Serv-
ices, (“I am directly responsible for the administration of Title XIX * * *
for the State of Missouri.”).
A-4
junctive relief on the ground that 13 C.S.R. § 40-81.100
was unconstitutional under the fourteenth amendment.‘
Plaintiff Duemler is a physician who performs abortions
for patients who qualify for Missouri Medicaid assistance.
Duemler is a part-time employee of plaintiff Reproductive
Health Services (Reproductive), an organization that
operates an out-patient, first-trimester abortion facility.
During 1976, Missouri Medicaid subsidized 2400 abortions.
1824 of which were performed at facilities provided by Re-
productive, 166 of which were personally performed by
Duemler. Most of these abortions were, in Duemler’s medi-
cal judgment, medically necessary in light of all the fac-
tors that he considers relevant to the patient’s well-being:
the patient’s physical, emotional, psychological, and fa-
milial circumstances, and the patient’s age. Duemler be-
lieves that virtually none of the abortions he performs could
be justified as necessary to save the patient’s life.
With the promulgation of 13 O.S.R. 4 40-80.100, the
number of Medicaid recipients seeking abortions at Repro-
ductive declined from 177 to 67 per month. In the last vear,
counsel inform us, the number of Medicaid abortions in
Missouri has fallen to zero.
Both parties below moved for summary judgment,
with physicians submitting supporting affidavits. Although
the affidavits reflect philosophical differences as to the de-
sirability of abortion,® we perceive no genuine medical dis-
‘Defendants do not dispute that plaintiffs have standing to assert the
third party rights of women seeking subsidized abortions. The Supreme
Court settled this point in Singleton v. Wulff, 428 U.S. 106, 108, 112-18 (1976).
‘The affidavit of Dr. Ann E. Bannon, with which several physicians
concur, states that “abortion is * * * bad medical practice. It is, in fact, an
admission of the failure of medical practice. The deliberate killing of any
patient born or unborn can never constitute good medical practice.” While
we respect the moral viewpoint that the assumptions in this statement re-
flect, we think it established beyond cavil that abortion is, in some in-
stances, an appropriate medical procedure. See, e.g., Colautti v. Franklin,
439 U.S. 379, 398-400 (1979) (physicians employ a variety of abortion
methods); Planned Parenthood oj Missouri v. Danforth, 428 U.S. 52, 77 (1976)
(Continued on next page)
A-d
pute as to the following. There are situations in which a
physician considers an abortion medically indicated or
medically necessary even though a full-term pregnancy will
not cause death. Abortion may be medically necessary
where the patient has genital cancers, proliferative re-
tinopathy (retina disease), or nephropathy (kidney dis-
ease). In any of these cases, an abortion might be necessary
to preserve the patient’s health, yet only in an extremely
rare situation could a physician accurately state that the
life of the pregnant patient would be endangered if the
pregnancy were to continue to term."
II. Statutory Questions
A. The Effect of Title XIX
The district court, relying on Preterm, Inc. v. Dukakis,
591 F.2d 121 (1st Cir.), cert. denied, 99 S. Ct. 2182, 2183
Footnote continued
(use of saline amniocentesis as a method of abortion is an “accepted medi-
cal procedure” during and after first trimester of pregnancy); see generally
Roe v. Wade, 410 U.S. 113, 164 (1973) (abortion decision and effectuation
in first trimester of pregnancy to be “left to the medical judgment of the
pregnant woman’s attending physician”).
6We understand that a procedure is “medically necessary” if, in a phy-
sician’s professional judgment, that procedure is in his patient’s best medi-
cal interest. See generally Doe v. Bolton, 410 U.S. 179, 192 (1973). We further
understand that “medically necessary abortion” and “therapeutic abortion”
mean the same thing. Although one dictionary defines “therapeutic abortion”
as “abortion induced when pregnancy constitutes a threat to the mother’s
life,” Webster’s New International Dictionary 2372 (3d ed. 1971), the legal
definition, as developed by the Supreme Court, is broader, and makes
“therapeutic” synonymous with “medically indicated,” “medically neces-
sary,” and “non-elective.” See, e.g., Poelker v. Doe, 432 U.S. 519, 519-20
can v. Roe, 432 U.S. 464, 480 (1977). Beal v. Doe, 432 U.S. 438,
TThese assertions are made in the affidavit of Dr. Michael Freiman, with
which several physicians concur. The opposing affidavit of Dr. Ann E, Ban-
non flatly rejects the assertion that abortion is medically necessary to treat
drug addiction or to respond to a diagnosis of fetal deformity. The Bannon
affidavit also disputes that abortion is medically appropriate where cardio-
vascular problems or diabetes are involved. The Bannon affidavit acknowl-
edges, however, that ——- complicates these conditions, and thus in-
ferentially concedes t pregnancy termination might, in some instances,
be in the pregnant patient’s best medical interest. The Bannon affidavit also
states that it is “almost always” improper medical practice to use abortion
in connection with other treatment for genital cancer. For related medical
opinion, see Zbaraz v. Quern, 469 F. Supp. 1212, 1220 (N.D. IL 1979), review
; i juris. postponed, 48 U.S.L.W. 3356 (U.S. Nov. 26, 1979) (Nos. 79-4,5,
A-6
(1979), held that Missouri’s policy of subsidizing only
life-saving abortions was superseded by Title XIX, spe-
cifically 42 U.S.C. ¢§ 1396a(a)(17) and 42 C.F.R. § 440.230
(1978). This conclusion is consistent with our decision to-
day in Hodgson v. Board of County Commissioners, No.
79-1665 (8th Cir. ), and we reject the bulk of defend-
ants’ arguments for the reasons expressed there.
Defendants raise three points, however, that were not
raised in Hodgson.® First, defendants argue that we must
reverse the district court because the issue of Title XIX’s
requirements was not raised by plaintiffs below. The com-
plaint brought exclusively constitutional challenges to 13
C.R.S. § 40-80.100, and the only statutory issue the court
requested the parties to brief concerned the effect of the
Hyde Amendment, which proscribes federal spending for
most abortions.
Nevertheless, we do not believe defendants were justi-
fied in believing that the constitutionality of 13 C.S.R.
* 40-80.100 was the only issue before the court. In respond-
ing to the court’s request to discuss the Hyde Amendment,
the plaintiffs asserted the inconsistency of 13 O.S.R. § 40-
80.100 with Title XIX. This occurred several months be-
fore the court’s decision and defendants offer nothing to
upset our presumption that they had adequate opportunity
to respond. C7. Fed. R. Civ. P. 15(b) (issues not pleaded
but tried by implied consent are treated as if pleaded).
Moreover, the constitutional challenge necessarily brought
the interpretation of Title XIX into question. Interpreting
8Defendants also argue that, because Title XIX endeavors to enable
each state to provide medical assistance only “as far as racticable under
the conditions of such State,” 42 U.S.C. § 1396, Missouri has no obligation
to subsidize abortions because conditions in Missouri made abortion subsidy
politically impracticable. The contention that “political conditions” justify
what is otherwise a violation of Title XIX is frivolous. Any violation of
Title XIX could be so justified. The statutory language evidently recognizes
a state’s interest in fiscal integrity and administrative efficiency. It does
not, in any event, excuse 13 C.S.R. § 40-80.100.
A-7
Title XIX to require subsidy of medically necessary abor-
tions—a possibility explicitly raised by the Supreme Court
one month before plaintiffs’ complaint, Beal v. Does, 432
U.S. 438, 444 (1977)—would have made a constitutional
argument unnecessary to consider. See Ashwander v. TV A,
297 U.S. 288, 346-48 (1936)(Brandeis, J., concurring)
(courts traditionally prefer statutory to constitutional
grounds). We therefore think the defendants were placed
on notice that Title XIX’s scope was being drawn into ques-
tion.
A more substantial contention is that the Congress
which enacted Title XIX could not have intended to re-
quire states to subsidize abortions because at the time of
Title XIX’s enactment, in 1965, most states criminally pro-
scribed all but life-saving abortions.® Defendants rely on
dictum in Beal v. Doe, supra, which considered it ‘‘rele-
vant’’ that:
[Wjhen Congress passed Title XIX in 1965, non-
therapeutic abortions were unlawful in most States.
In view of the then-prevailing state law, the contention
that Congress intended to require—rather than permit
—participating States to fund nontherapeutie abor-
tions requires far more convincing proof than [plain-
tiffs] have offered.
Id. at 447 (footnote omitted).
®Parallel to this argument is defendants’ curious reliance on 42 U.S.C.
§ 1396a(f), an obscure provision which states that, with some exceptions,
no state is required to aid the “aged, blind, or disabled” who would not
have been eligible for medical assistance on January 1, 1972, but that some
of these individuals may be deemed eligible. Because most abortions in
Missouri were illegal in 1972, defendants conclude that sub-section 1396a(f)
excuses the restriction on abortion financing imposed by 13 C.S.R. § 40-
81.100. This imaginative interpretation notwithstanding, both the express
language of the subsection and its legislative history—see H.R. Rep. No.
92-231, 92d Cong., 2d Sess., reprinted in [1972] U.S. Code Cong. & Ad. News
4989, 4992-93, 5014—reveal that the subsection is designed to encourage, but
not require, the participating state to broaden its class of aged, blind, and
disabled medical assistance recipients by providing that the federal govern-
ment will make the supplemental payments. The subsection does not gen-
erally freeze a state’s medicaid obligations at those extant in the period
before January 1, 1972.
A-8
Although one federal district court has cited this
language in Beal in support of defendants’ proposition—
that Title XIX also permits a state to withhold subsidies
for therapeutic abortions, D.R. v. Mitchell, 456 F. Supp.
609, 622 (D. Utah 1978)—we de not find defendants’ argu-
ment persuasive. First, Beal expressly did not contemplate
Title XIX’s requirements concerning therapeutic services.
432 U.S. at 444-45. Second, Beal’s language, when applied
to therapeutic services, leads to the absurd result that Title
XIX permits a participating state to withhold subsidies
for any service, no matter how medically necessary, that
was not legally available in 1965. We doubt that the Su-
preme Court would tolerate, for example, a Title XIX
state’s refusal to subsidize a medically essential prescrip-
tion drug on the ground that it was not approved until after
1965. Excluding a form of medical service not because of the
recipient’s medical need, but solely because it was once not
legally available, would contravene Title XIX’s express
directive that standards governing the extent of medical
assistance be reasonable. 42 U.S.C. 1396a(a)(17). We
therefore believe that the Congress which enacted Title
XIX intended to require that persons otherwise eilgible
under a state plan receive all medical services legally avail-
able at the time they are needed.
Finally, defendants emphasize the formal approval by
the Department of Health, Education and Welfare (HEW)
of a previous Missouri Medicaid regulation, which stated
that ‘‘[p]ayment is not made fer abortions unless a li-
censed physician certifies to the Division of Family Serv-
ices that continuation of the pregnancy will endanger the
mother’s life.’’
Defendants urge that 13 C.S.R. § 40-81.100, which hes
not yet been approved by HEW, is sufficiently similar to
the prior regulation to invoke in its favor that the rule
A-9
that ‘‘[t]he construction put on a statute by the agency
charged with administering it is entitled to deference by
the courts, and ordinarily that construction will be affirmed
if it has a ‘reasonable basis in law.’ NURB v. Hearst Pub-
lications, 322 U.S. 111, 131 [(1944)].’? Volkswagenwerk v.
FMC, 390 U.S. 261, 272 (1968).
Assuming that HEW would approve 13 C.S.R. § 40-
81.100, which appears significantly more restrictive than
its predecessor, we cannot give the HEW interpretation
much weight here. As the Supreme Court also stated in
Volkswagenwerk, ‘‘the courts are the final authorities on
issues of statutory construction, and ‘are not obliged to
stand aside and rubberstamp their affirmance of admin-
istrative decisions that they deem inconsistent with a statu-
tory mandate or that frustrate the congressional policy
underlying a statute.’ ’’ 7d. (citation omitted). In light of
Title XIX’s mandate that medical assistance be disbursed
in accordance with reasonable standards of medical need,
HEW’s approval of a statutory scheme that alters its gen-
eral standard of medical need with respect to a particular
medically necessary procedure deserves little deference.
For the reasons stated here and in Hodgson v. Board
of County Commissioners, supra, we again hold that Title
XTX, as originally enacted, forbids a participating state
to single out abortion subsidies for a more restrictive
standard of medical need.
B. The Effect of the Hyde Amendment
The district court, after ruling that 13 C.S.R. § 40-
80.100 was inconsistent with Title XIX, next considered
whether Title XLX was substantively amended by the Hyde
Amendment, Act of Oct. 18, 1978, Pub. L. No. 95-480, § 210,
92 Stat. 1586, which read:
None of the funds [appropriated for the use of HEW]
shall be used to perform abortions except where the
A-10
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 reported prompt-
ly * * *; 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.'!°)
The district court held that this language altered Missouri’s
abortion subsidy obligation under Title XIX.
This holding comports with the interpretation given
the Hyde Amendment by the First Circuit in Preterm, Inc.
v. Dukakis, supra, and the Seventh Circuit in Zbaraz v.
Quern, 596 F.2d 196 (7th Cir. 1979), petition for cert. filed,
48 U.S.L.W. 3013 (U.S. July 24, 1979)(No. 79-64), which
we followed in Hodgson v. Board of Cownty Commission-
ers, supra.’* We have examined plaintiffs’ criticisms of the
Preterm-Zbaraz rationale and find them unpersuasive for
the reasons expressed in Hodgson.'* We therefore affirm
the district court on its Hyde Amendment holding.
10The Hyde Amendment appeared in appropriations acts for fiscal years
1977-79; corresponding language in the appropriations act for fiscal year
1980 maintains the general proscription of abortion financing and differs
from the language quoted in text only in that it contains no exception for
abortions to prevent severe and long-lasting physical health damage. Act
of Nov. 20, 1979, Pub. L. No. 96-123, § 109.
11The district court did not rely on the rationale used in Preterm and
Zbaraz. Rather, the court relied on 42 U.S.C. §§ 1396(a) and 1396d(b) to
hold that Title XIX—absent, we suppose, some express indication to the
contrary—binds a pet gga state to subsidize only those medical pro-
cedures for which it will be reimbursed in accordance with the cost-sharing
formula of Title XIX. The court thus held that the Hyde Amendment, by
preventing reimbursement for non-Hyde Amendment abortions, automati-
cally a any state obligation to subsidize these abortions. The par-
ties’ briefs did not discuss this novel interpretation, and we find it unneces-
sary to consider inasmuch as we affirm the district court’s judgment on the
basis of Hodgson.
12We also reject the suggestion that the substantive impact of the Hyde
Amendment was determined in Beal v. Doe, 432 U.S. 438 (1977). True, the
Beal Court did acknowledge the existence of a version of the Hyde Amend-
ment while upholding, on other grounds, a Pennsylvania medicaid program
(Continued on next page)
A-11
III. The Constitutional Issue
The district court’s final holding was that Missouri’s
policy of excluding medically necessary non-Hyde Amend-
ment abortions from its medicaid coverage was constitu-
tional. The court first observed that:
The Constitution imposes no obligation on the States
to pay the pregnancy-related medical expenses of in-
digent women, or indeed to pay any of the medical ex-
penses of indigents. But when a State decides to alle-
viate some of the hardships of poverty by providing
medical care, the manner in which it dispenses benefits
is subject to constitutional limitations.
Maher v. Roe, 432 U.S. 464, 469-70 (1977). The court then
analyzed the Missouri exclusion under the traditional equal
protection analysis described in San Antonio School Dis-
trict v. Rodriguez, 411 U.S. 1, 17 (1973) :
[A court] must decide, first, whether [the policy]
operates to the disadvantage of some suspect class or
impinges upon a fundamental right explicitly or im-
plicitly protected by the Constitution, thereby requir-
ing strict judicial scrutiny. * * * If not, the [policy]
must still be examined to determine whether it ration-
ally furthers some legitimate, articulated state purpose
and therefore does not constitute an invidious dis-
crimination * * *.
Footnote continued
that subsidized only medically necessary abortions. Id. at 447 n.14. Plain-
tiffs argue that this disposition of the case demonstrates that the Hyde
Amendment is not a substantive enactment. If it were, plaintiffs contend,
the Court would have relied on it to uphold the Pennsylvania program.
The Court’s failure to do so, plaintiffs continue, means that the Hyde
Amendment does not relieve states of their Title XIX obligations. One
answer to this argument is that any holding that is not explained explicitly
but is only arguably implicit in a decision can have but little precedential
value. Further, and more fundamental, we do not think the Court’s dis-
position in Beal necessarily implies that the Hyde Amendment has no sub-
stantive effect. The Courit’s decision not to rely on the Hyde Amendment
as a ground for its decision does not mean that the Hyde Amendment
would not have been an appropriate ground. In choosing the ground that
it did, the Court chose but one of the available alternatives.
A-12
The court decided that strict scrutiny was inappropriate
because the exclusion neither disadvantaged a suspect class
nor impinged upon a fundamental right, and determined
that the exclusion was valid because it rationally furthered
Missouri’s ‘‘strong and legitimate interest in encouraging
normal childbirth’’ and in ‘‘ protecting the life of the fetus”’
(citing Maher v. Roe, supra, 432 U.S. at 478).
The district court’s is one of at least six recent federal
decisions to have considered whether a state violates the
Equal Protection Clause when it excludes medically neces
sary non-Hyde Amendment abortions from its medicaid
program. In Doe v. Percy, No. 79-C-367 (W.D. Wis. Sept.
13, 1979), the court granted preliminary injunctive relief
to the exclusion’s challengers. The court held there was
a strong likelihood that Wisconsin’s payment of pregnancy
expenses combined with its nonpayment of medically neces-
sary abortion expenses would trigger strict scrutiny and
that the state’s classification could not be justified by a
compelling state interest. In Zbharaz v. Quern, 469 F. Supp.
1212 (N.D. Ill. 1979), review granted, juris. postponed, 48
U.S.L.W. 3356 (U.S. Nov. 26, 1979) (Nos. 79-4, 5, 491), the
court concluded that strict serutiny did not apply but none-
theless struck down Illinois’ medicaid exelusion (snd the
Hyde Amendment)'* for failure to further a legitimate
18The Supreme Court has agreed to hear, some months hence, appeals
from Zbaraz that will raise the question whether the Hyde Amendment's
restrictions on abortion financing are constitutional. We nonetheless pro-
ceed with this case because it is not certain that the Court will reach that
issue, for it is not clear that the constitutionality of the Hyde Amendment
was properly before the court in Zbaraz. Although the Zbaraz court per-
mitted the United States to intervene and defend the Hyde Amendment's
constitutionality, the court was not persuaded that the issue was squarely
before it, and addressed the issue only because it was under the Seventh
Circuit’s mandate to do so. Zbaraz v. Quern, supra, 469 F. Supp. at 1215 n.3.
Our own constitutional holding, of course, does not touch the Hyde
Amendment because the plaintiffs have not attacked it and because the
United States is not a party, see 28 U.S.C. § 2403(a). We do acknowledge,
however, that our judgment of the constitutionality of a Missouri statutorv
scheme paralleling the Hyde Amendment suggests what our judgment of
the Hyde Amendment would be, were it properly before us.
A-13
governmental interest. In D.R. v. Mitchell, 456 F. Supp.
609 (D. Utah 1978), however, the court upheld Utah’s
medicaid exclusion on the basis that it reasonably advanced
the state’s legitimate interest in promoting childbirth. .Jc-
cord, Doe v. Mundy, 441 F. Supp. 447 (E.D. Wis. 1977)
(upholding constitutionality of county hospital rule per.
mitting use of hospital facilities for abortion only where
continuation of pregnancy threatens life of mother). And
an early version of the Hyde Amendment withstood a con-
stitutional attack in Woe v. Califano, 460 F. Supp. 234 (S.D.
Ohio 1978).
As these decisions indicate, an equal protection chal-
lenge to Missouri’s policy can be characterized in at least
two ways. The favored class can be characterized as (1)
those pregnant indigents who seek either childbirth or a
Hyde Amendment abortion or (2) those indigents who seek
medically necessary procedures other than abortions. In
both cases the disfavored class would comprise those preg-
nant indigents who seek medically necessary non-Hyde
Amendment abortions.’* We conclude that, under either
characterization, Missouri’s legislative classification must
fall as violative of the fourteenth amendment.'®
14Of course, still other classifications are possible. See, e.g., Butler, The
Right to Medicaid Payment for Abortion, 28 Hast. L.J. 931, 946-51 (1977)
—— among women seeking abortion, classification based on
wealth).
15Plaintiffs’ challenge, arising under the Equal Protection Clause of
the fourteenth amendment, might also be put in terms of the Due Process
Clause of that amendment. Due process and equal protection analyses are
sometimes interchangeable. Compare Zablocki v. Redhail, 434 U.S. 374,
388-91 (1978) (invalidating restriction on freedom to marry of certain in-
digent fathers on equal protection rationale) with id. at 392-96 (Stewart, J.,
concurring) (due process is preferred mode of analysis where, as here,
problem concerns not discriminatory classifications but unwarranted en-
croachment on constitutionally protected freedom); compare Cleveland Bd.
of Educ. v. LaFleur, 414 U.S. 632, 639-48 (1974) (invalidating mandatory
maternity leave policy on due process rationale) with id. at 651-57 (Powell,
J., concurring) (equal protection is the appropriate frame of reference
where, as here, problem is one of irrational classification). We will follow
the lead of the Supreme Court in Maher v. Roe, supra, and examine this
problem of abortion financing in terms of equal protection. We believe the
equal protection analysis is flexible enough to accommodate plaintiffs’ due
(Continued on next page)
A-14
We consider first the classification made among the
pregnant poor. We agree with the district court that Mis-
souri’s medicaid policy disfavoring certain pregnant indi-
gents does not disadvantage a suspect class. Maher v. Roe,
supra, 432 U.S. at 471 (indigency alone does not make a
class suspect) ; cf. Geduldig v. Aiello, 417 U.S. 484 (1974)
(pregnancy-based classifications are not tantamount to
suspect sex-based classifications).
Whether the Missouri medicaid exclusion impinges
upon a fundamental right is, as the district court acknow]l-
edged, a ‘‘closer question,’’ and requires some understand-
ing of the Supreme Court’s decisions in Roe v. Wade, 410
U.S. 113 (1973), and Maher v. Roe, supra.
In Roe v. Wade, the Supreme Court recognized that a
pregnant woman’s interest in deciding to terminate her
pregnancy through an abortion instead of through child-
birth has the status of a ‘‘fundamental right’’ under the
Constitution, and that any state impairment of that in-
erest through criminal sanctions must be justified by -a
compelling state interest.’® Although acknowledging that
the state had potentially compelling interests at stake—
such as protecting the pregnant woman’s health after the
first trimester of pregnancy and protecting fetal life after
the point of fetal viability—the Court in Wade invalidated
the state criminal statute before it on the basis that it
broadly proscribed abortions (except for life-saving abor-
Footnote continued
process concerns. Accord, Zbaraz v. Quern, 469 F. Supp. at 1216 n.5. On
appeal, plaintiffs do not press their arguments that the Missouri policy
imposes cruel and unusual punishment on indigent women under the eighth
amendment, deprives the physician-plaintiffs of their right to practice
medicine under the first, fourth, fifth, ninth and fourteenth amendments.
and is unconstitutionally vague and thus violative of due process. The dis-
trict court summarily ruled that these and related constitutional claims
were without merit. We have no occasion to address them here.
16Wade, of course, is a due process rather than an equal protection
case, but provides a framework for deciding whether a state policy impinges
upon a woman’s fundamental interest in choosing abortion. Maher v. Roe,
supra, 432 U.S. at 471-74.
A-15
tions) without regard for the woman’s fundamental inter-
est in the abortion choice.
In Maher v. Roe, the Court applied a more lenient
‘‘rational basis’’ standard in upholding a state’s policy of
subsidizing childbirth while refusing to subsidize non-
therapeutic abortions. The Court explained that ‘‘the right
in Roe v. Wade can be understood only by considering
both the woman’s interest and the nature of the State’s
interference with it.’’ 432 U.S. at 473. The woman’s inter-
est in Maher was not as substantial as the woman’s interest
in Wade. Wade catalogued the detriments suffered by a
woman denied her choice of abortion:
Specific and direct harm medically diagnosable even in
early pregnancy may be involved. Maternity, or addi-
tional offspring, may force upon the woman a <listress-
ful life and future. Psychological harm may be immi-
nent. Mental and physical health may be taxed by child
care. There is also the distress, for all concerned, as-
sociated with the unwanted child, and there is the prob-
lem of bringing a child into a family already unable,
psychologically and otherwise, to care fgr it. In other
eases, as in this one, the additional difficulties and
continuing stigma of unwed motherhood may be in-
volved.
410 U.S. at 153. Only a portion of these detriments was
suffered by the Maher plaintiffs, who were unable to ob-
tain a physician’s certificate that for them abortion was
a medical necessity. Moreover, the form of the state inter-
ference in Maher was not as substantial as the criminal
proscription involved in Wade. The Maher Court found
‘a basic difference between direct state interference with
a protected activity [as in Wade] and state encouragement
of an alternative activity consonant with legislative policy
[as in Maher).’’ 432 U.S. at 475. Under this analysis, the
A-16
Maher Court concluded that even though the state policy
of subsidizing childbirth while refusing to subsidize
nontherapeutic abortions may influence the woman’s con.
stitutionally protected independent decision to seek an
abortion, id. at 474, its classification triggered only a ‘‘rea-
sonable basis’’ scrutiny. Applying this test, the Court rea-
soned that the state’s classification reasonably furthered
its legitimate interest in ‘encouraging normal childbirth.’
Id. at 479.
The case here differs from both Wade and Maher.
Here, like Wade and unlike Maher, the woman’s funda-
mental interest in seeking an abortion is magnified by her
interest in preserving her own health, an interest which
may itself be fudamental.’7 The potential effect of the
state’s policy is therefore to subject to the full spectrum of
detriments catalogued in Wade, supra, 410 U.S. at 153,
those pregnant poor who are denied medically necessary
abortion benefits. To be sure, withholding medicaid bene-
fits is not a direct interference. Still, the differential dis-
bursement of government benefits deemed medically neces-
sary is apt to have a strong influence on those who, by
hypothesis, are unable to procure them through their own
means.
[I]t is at least clear that medical care is as much ‘‘a
basic necessity of life’’ to an indigent as welfare as-
sistance. And, governmental privileges or benefits nec-
essary to basic sustenance have often been viewed as
being of greater constitutional significance than less
essential forms of governmental entitlements.
Memorial Hospital v. Maricopa County, 415 U.S. 250, 259
(1974) (footnote omitted). Cr. Singleton v. Wulff, 428 U.S.
17See, e.g., Roe v. Wade, supra, 410 U.S. at 213 (Douglas, J., concur-
ring) (among fundamental rights protected by the Constitution is “the
om to care for one’s health and person”); see generally Whalen v. Roe,
429 U.S. 589, 599-600 (1977) (Constitution implicitly protects “interest and
independence in making certain kinds of important decisions”).
A-17
106, 118-19 n.7 (1976) (‘* For a doctor who cannot afford to
work for nothing, and a woman who cannot afford to pay
him, the State’s refusal to fund an abortion is as effective
an ‘interdiction’ of it as would ever be necessary.’’)**
In declaring that there is a ‘‘ basic difference’’ between
direct interference with an activity, on the one hand, and
discouragement of that activity through the subsidy of an
alternative activity, on the other, the Maher Court laid
down no per se rule. While the Court emphasized that the
form of the state interference was significant in determin-
ing whether it impinged upon a fundamental right, the
Court did not make the form of interference determina-
tive.’® Rather, in focusing on not only the form of state
interference but also the woman’s interest, 432 U.S. at 473,
the Court recognized that the ultimate test of whether
constitutionally protected interests are being impinged
upon is not simply the form that the staie interference takes
but the effect that the interference exerts. The effect here,
because significantly more substantial than that present in
Maher, calls for judicial serutiny that demands more than
‘‘minimal rationality.’’
Though the latitude given state economic and social
regulation is necessarily broad, when state statutory
classifications approach sensitive and fundamental
personal rights, this Court exercises a stricter scrutiny.
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172
(1972).
18In examining the impact of Missouri’s medicaid exclusion, we are not
relying simply on the denial of benefits for medically necessary abortions:
there is no constitutional right to a state-financed abortion. Rather, we are
relying on that denial coupled with Missouri’s subsidy of the alternative ac-
tivity of continuing the pregnancy to term; there is a constitutional right
to seek a medically necessary abortion—and also, we presume, to seek to
preserve one’s health—without undue governmental influence.
19The Maher Court acknowledged that “a state-created obstacle need
not be absolute to be impermissible,” 432 U.S. at 473, and that the con-
stitutionality of an abortion-non-abortion distinction “will depend [in part]
upon its degree,” id. (quoting Bellotti v. Baird, 428 U.S. 132, 147 (1976))
(emphasis added).
A-18
To justify Missouri’s medicaid exclusion for medically
necessary non-Hyde Amendment abortions, defendants as-
sert the state’s interest in protecting fetal life.2° Yet the
Missouri subsidy scheme does not pursue that interest at
all costs. The initial scheme authorized expenditure for
life-saving abortions. And we have affirmed the district
court’s holding that Missouri’s policy of excluding all non-
life-saving abortions from its medicaid program is super-
seded by Title XIX as modified by the Hyde Amendment,
meaning that Missouri must now also subsidize medically
necessary abortions to terminate pregnancies that result
from rape or incest.?1 Missouri presumably will continue
20Defendants do not assert Missouri’s interests in shepherding limited
funds, see Dandridge v. Williams, 397 US. 471, 485 (1970), or in increasing
its population growth, see Maher v. Roe, supra, 432 U.S. at 478 nll. We
think it apparent that neither interest is implicated here. Missouri’s fiscal
interest is not implicated because the state’s choice of financing childbirth
and refusing to finance abortion is, by nearly every indication, more ex-
pensive than the alternative of financing both. See Hodgson v. Board of
County Commissioners, No. 79-1665, slip op. at 13 n.16 (8th Cir. ,
but see D.R. v. Mitchell, supra, 456 F. Supp. at 618-19. Nor can ‘Missouri
persuasively claim that it has an interest in promoting its population growth
in light of its provision of family planning services and supplies. Mo. Ann.
Stat. § 208.152(13) (Veron Supp. 1979).
21The most recent version of the Hyde Amendment relieves Missouri
of any obligation to subsidize abortions to prevent severe and long-lasting
physical health damage. See note 10 supra.
Although defendants do not raise the point on appeal, we note there
is some controversy whether the Hyde Amendment permits funding of
medically necessary abortions in cases of rape or incest. The Amendment
permits funding for “such medical procedures necessary for the victims of
rape or incest” but does not specify “abortion” funding for these victims,
as it does in the case of women whose lives would be endangered by a
continued pregnancy. In an amicus brief filed before the district court,
HEW cited an opinion letter of the United States Attorney General, dated
July 27, 1977, which interpreted an earlier version of the Hyde Amendment
to authorize only those procedures that occur immediately after the inci-
dent, and not to encompass abortions in the conventional sense.
Courts that have spoken to the question, however, have concluded that
“such medical procedures necessary” includes abortions. E.g., Zbaraz v.
Quern, supra, 596 F.2d at 199 n.7; Preterm, Inc. v. Dukakis, supra, 591 F.2d
at 127. The words of the Amendment support this interpretation. The
Amendment first proscribes abortion funding generally and then excepts,
inter alia, “medical procedures necessary” to treat victims of rape or incest.
This phrase would include contemporaneous medical treatment that would
prevent or terminate pregnancy, as the Attorney General suggests. This
phrase would also include, if it is used in the commonly accepted sense, an
abortion when an abortion is a medically necessary procedure, as it some-
times is. See notes 5 and 6 supra. Our interpretation is strengthened by
(Continued on next page)
A-19
to withhold subsidies for medically necessary abortions
generally, which the Hyde Amendment permits it to do.
The resulting subsidy scheme seems to represent an
attempt to harmonize the state’s interest in protecting fetal
life with the state’s interest in the health of its pregnant
poor. Assuming that protecting fetal life is a constitu-
tionally permissible interest where a medically necessary
abortion is concerned—a point we address later, infra at 20-
30—we hold that the Missouri subsidy scheme fails ra-
tionally to promote that interest.
The Missouri scheme is irrationally underinclusive in
that it generally denies subsidies to indigent women seek-
ing medically necessary abortions but extends subsidies for
medically necessary abortions to those indigent women
whose pregnancies have resulted from rape or incest. In
terms of either protecting fetal life or preserving the pa-
tient’s health, there is no rational distinction between the
woman who wants a medically necessary abortion because
of rape or incest and the woman who wants such an abor-
tion simply because she needs it to preserve her health. The
Equal Protection Clause denies
to States the power to legislate that different treat-
ment be accorded to persons placed by a statute into
different classes on the basis of criteria wholly un-
related to the objective of that statute. A classification
‘‘must be reasonable, not arbitrary, and must rest
upon some ground of difference having a fair and sub-
stantial relation to the object of the legislation, so that
all persons similarly cireumstanced shall be treated
Footnote continued
other language in the Amendment, which provides that federal funds may
be expended in the case of rape or incest only if the incident is “reported
—- to a law enforcement agency or public health service.” This
anguage contemplates that some medically necessary procedures would
occur some time after the rape or incest and not be virtually contempo-
raneous with it. Otherwise there would seem no need for a prompt re-
porting requirement to ensure that claims of rape or incest are genuine.
A-20
alike.’ Royster Guano Co. v. Virginia, 253 U.S. 412,
415 (1920).
Reed v. Reed, 404 U.S. 71, 75-76 (1971). If Missouri is to
subsidize medically necessary abortions for indigent
women who are pregnant due to rape or ineest, as it must
under Title XIX, it must also subsidize medically necessary
abortions generally in order to avoid invidious diserimina-
tion against those indigent women who are not victims of
rape or incest. Cf. Police Department of Chicago v. Mosley,
408 U.S. 92, 99 (1972) (anti-picketing law’s exception for
peaceful labor picketing invalid under Equal Protection
Clause because exception not rational in terms of state
interest in regulating picketing’s time, place and manner).
It is unnecessary to decide the rationality of adopting
a former Hyde Amendment exception, in effect at the time
this action was brought and decided in the district court,
which permits abortion subsidy only if there will be severe
and long-lasting health damage that is ‘‘physieal’’ and
that is prognosticated by two physicians. We do note, how-
ever, that the presumption that physical health detriments
are deserving of attention but that menal health detriments
uniformly are not is, in one court’s opinion, ‘‘nothing less
than absurd.’’ Preterm, Inc. v. Dukakis, supra, 591 F.2d at
132. Moreover, no Supreme Court decision has counte-
nanced a distinction drawn between abortions performed
for physical health reasons only and abortions performed
for mental health reasons.2*? We also observe that any
22We reject defendants’ contention that the Missouri subsidy scheme
is squarely supported by the Supreme Court’s per curiam decision in
Poelker v. Doe, 432 U.S. 519 (1977). True, the plaintiff in Poelker did suf-
fer from fibroid tumors and polyps, an extremely retroverted uterus, and
trichomycosis. Doe v. Poelker, 515 F.2d 541, 543 (8th Cir, 1975). And the
defendant, the mayor of St. Louis, did declare that abortion was contrary
to the public policy of Missouri and St. Louis except where necessary “to
save the mother from grave physiological injury or death.” Id. at 547 n.8.
Nevertheless, the Supreme Court did not consider the case as pre-
senting a challenge to a government benefit scheme that excludes thera-
(Continued on next page)
A-21
two-physician-determination requirement would be suspect
in hight of Doe v. Bolton, 410 U.S. 179, 199-200 (1973). The
factual setting of Doe was different, of course, but its
language suggests that the instant two-physician require-
ment could survive under only the barest of minimal ra-
tionality standards,
We conclude, on the basis of the rape and incest ex-
ception, that Missouri’s subsidy scheme, made to conform
with Title XIX as altered by the Hyde Amendment, fails
to promote, along rationally drawn lines, the state inter-
ests in protecting fetal life and preserving maternal health.
Regardless of the appropriate level of scrutinv—and we
have indicated our belief that some standard more stringent
than rational basis test is appropriate here—the Missouri
subsidy scheme does not survive an equal protection attack.
This is not the only analysis under which the Missouri
scheme is unconstitutional. In Zbaraz v. Quern, 469 F.
Supp. 1212 (N.D. Ill. 1979), review granted, juris. post-
poned, 48 U.S.L.W. 3356 (U.S. Nov. 26, 1979) (Nos. 79-4,
d, 491), the district court characterized an L[llinois medicaid
classification as one between indigents seeking medically
necessary non-Hyde Amendment abortions and indigents
Footnote continued
peutic abortions. Despite plaintiff’s condition, the physicians who examined
her found no medical reason to justify an abortion. Jd. at 543. Plaintiff’s
desired abortion was therefore termed as “non-therapeutic” by both this
court, id. at 545, and the Supreme Court, 432 U.S. at 521. The Supreme
Court’s decision did not mention St. Louis’ “grave physiological injury or
death” standard, presumably because the plaintiff would have been denied
access to the hospital facilities even under the more relaxed standard em-
ployed by the Connecticut medicaid scheme under review in Maher v. Roe,
supra. The limited purpose of the Court’s three page opinion in Poelker
was to demonstrate that Maher’s approval of withholding medicaid subsi-
dies for non-therapeutic abortions also applies to a city’s denial of hospital
facilities. The Court explained, “[fJor the reasons set forth in our opinion
in [Maher], we find no constitutional violation by the City of St. Louis in
electing, as a policy choice, to provide publicly financed hospital services
for childbirth without providing corresponding services for non-therapeutic
abortions.” 432 U.S. at 521. The Court thereby gave no approval to a scheme
that would discriminate against “therapeutic abortions,” as the Court has
defined them, see note 6 supra.
A-22
seeking medically necessary procedures generally. The
classification did not impinge upon a fundamental interest
and was therefore subject only to the requirement that it
rationally further a legitimate, articulated state purpose.
The court assumed, as we have not, that the classification’s
relationship to the goal of protecting fetal life was suf-
ficiently rational. But the court held that the classifica-
tion’s goal of protecting fetal life was not legitimate, at
least where the fetus was not viable: ‘‘a State has [no]
legitimate interest in promoting the life of a non-viable
fetus in a woman for whom an abortion is medically neces-
sary.’’ Id. at 1219.
We substantially concur with this analysis, but per-
ceive no support for a viable/non-viable distinction in the
context of funding medically necessary procedures under
Title XIX. We conclude that, regardless of the stage of
pregnancy, a state has no constitutionally permissible in-
terest in promoting the life of the fetus in a woman for
whom an abortion is medically necessary to preserve health
or life.
This conclusion follows the teachings of all relevant
abortion decisions of the Supreme Court. The first case to
intimate the relative weights of the state’s interests in pro-
tecting fetal life and preserving the woman’s health was
Roe v. Wade, supra. Roe recognized the interest in fetal life
as constitutionally permissible but concluded that it did
not become ‘‘compelling,’’ and thus sufficient to justify re-
strictions on abortions, until the point of viability—when
the fetus would be able to survive outside the mother’s
womb. 410 U.S. at 163. Even at this point, however, the
state may not go so far as to proscribe abortion ‘‘when
[abortion] is necessary to preserve the life or health of the
mother.’’ 7d. at 164 (emphasis added).?*
23Ajthough the logical relevance of the viable/non-viable distinction
to the weight of the state’s interest in protecting fetal life is not clear, see,
(Continued on next page)
A-23
The Court thus strongly implied that the state’s inter-
est in preserving the pregnant woman’s health—presum-
ably derived from the woman’s own interest in preserving
her health—was necessarily stronger than the state’s inter-
est in protecting fetal life. Although Roe arose in the con-
text of abortion regulation, and not abortion funding, the
lesson remains the same: whatever steps the state takes
to promote its interest in protecting fetal life cannot be
taken at the expense of the woman’s health. The interest
in protecting fetal life is thereby qualified, and might be
better termed as an interest in encouraging ‘‘normal child-
birth.’’ Childbirth is ‘‘abnormal,’’ under this term of art,
when it poses, relative to abortion, a significant threat
to the health or life of the mother. See Roe v. Wade, supra,
410 U.S. at 149.
This interpretation is consonant with the Court’s care-
fully drafted opinions in Beal v. Doe, 432 U.S. 488 (1977),
Maher v. Roe, supra, and Poelker v. Doe, 432 U.S. 519
(1977). In each case the Court upheld government policies
that withheld aid for abortions that the Court consistently
defined as non-therapeutic.** In each case the withholding
was justified by the state’s interest in ‘‘encouraging
normal childbirth.’’ Poelker v. Doe, supra, 482 U.S. at 521;
Maher v. Roe, supra, 432 U.S. at 478; Beal v. Doe, supra,
432 U.S. at 446.
Footnote continued
e.g., L. Tribe, American Constitutional Law 927 (1978); Ely, The Wages of
Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920, 924-25 (1973),
it is obviously authoritative for the purpose of determining when the state’s
interests in protecting fetal life outweighs the woman’s interest in choosing
abortion. We find no support for the Zbaraz court’s conclusion that this
distinction also determines the point at which a state’s interests in protect-
ing fetal life surpasses its interest in maternal health and thus becomes le-
gitimate for purposes of promoting fetal life at the expense of maternal
health. That the interest in fetal life somehow becomes stronger at viability
does not necessarily mean that it thus surpasses in importance a competing
interest in maternal health, which is also growing in substantiality as the
pregnancy approaches term. Roe v. Wade, supra, 410 U.S. at 162-63.
24For indications of the Court’s understanding of that term, see note 6
supra and cases cited.
A-24
The view that there is no legitimate state interest in
promoting fetal life at the expense of maternal health is
also supported by the Court’s disposition in Planned Par-
enthood v. Danforth, 428 U.S. 52 (1976). The Court in Dan-
forth invalidated Missouri’s statutory requirement that
saline amniocentesis could not be used as an abortion tech-
nique after the first trimester of pregnancy. This require-
ment did not preclude abortions altogether, but available
alternative abortion techniques were ‘‘significantly more
dangerous and critical for the woman than the saline tech-
nique.’’ 7d. at 76. The requirement was therefore not rea-
sonably related to the state’s interest in promoting ma-
ternal health; rather, it was ‘designed to inhibit, and
[had] the effect of inhibiting, the vast majority of abor-
tions after the first 12 weeks.’’ Jd. at 79. It thus promoted
fetal life, although the Court did not cast the matter in
those terms. In invalidating the requirement, the Court
strongly indicated that a state cannot elevate its interest
in encouraging childbirth above its interest in maternal
health.
That implication was made once more in Colautti +.
Franklin, 439 U.S. 379 (1979); decided last Term. The
Court in Colautti invalidated for vagueness a Pennsyl-
vania criminal statute that required anv physician who
performed an abortion to exercise due care to preserve
fetal health and life ‘‘so long as a different [abortion]
technique would not be necessary in order to preserve the
life or health of the mother.’’ 7d. at 397. The statute as a
whole failed to make clear whether it permitted the phy-
sician to prefer the woman’s life and health to the fetus’
life and health when they conflicted or whether it required
the physician to accept greater risks to maternal health
in order to increase the likelihood of fetal survival. Id. at
400. The Court declared that the latter requirement would
create ‘‘[s]Jerious ethical and constitutional difficulties.’
A-25
Jd. We think this statement is a pointed, if not wholly un-
ambiguous, reaffirmation of the principle that a state may
not promote fetal life at the expense of maternal health.
We therefore rule that Missouri’s medicaid exclusion
for therapeutic non-Hyde Amendment abortions is invalid
under the Equal Protection Clause not only because it in-
vidiously discriminates against the pregnant and medically
needy who are not victims of rape or incest, but also be-
cause it singles out for exclusion one procedure medically
necessary to preserve health without furthering a legitimate
state interest in doing so. The interest promoted by the ex-
clusion—protecting fetal life—is not a constitutionally per-
missible objective when the pregnant woman’s life or health
is at stake.
Although we are naturally reluctant to overturn legis-
lation on the basis that it furthers no legitimate state inter-
ests, the signals from the Supreme Court’s abortion
decisions are strong. Here, as elsewhere, there are govern-
mental goals which, while salutary in themselves, simply
cannot be promoted, no matter how rational the means,
at the expense of weightier interests. Cf., e.eg., Zablocki v.
Redhail, 434 U.S. 374, 395 (Stewart, J., concurring in the
judgment) (state’s legitimate concern with financial sound-
ness of prospective marriage ‘‘must stop short’’ of denving
marriage licenses to individuals because they are too poor).
Moreover, even were we writing on a clean slate, we would
be constrained to find that this is an area in which sensi-
tive judicial review is particularly appropriate. The mi-
nority disadvantaged by Missouri’s medicaid exclusion is
sex-specific and financially destitute; and legislative argu-
ments disfavoring abortion tend to draw heavily on re-
ligious assumptions, see Roe v. Wade, supra, 410 U.S. at
150, 160-62; Tribe, The Supreme Court—1972 Term—Fore-
word: Toward a Model of Roles in the Due Process of Life
A-26
!
and Law, 87 Harv. L. Rev. 1, 20-25 (1973); cf. United
States v. Vuitch, 402 U.S. 62, 78-80 & nn.1,2 (White, J.,
concurring). These factors suggest ‘‘a special condition
which tends seriously to curtail the operation of those po-
litical processes ordinarily to be relied upon to protect
minorities, and which may call for a correspondingly more
searching judicial inquiry.’’ United States v. Carolene
Products, 304 U.S. 144, 152-53 n.4; see L. Tribe, American
Constitutional Law 929-30, 1071 n.6 (1978). Any strong
deference to the legislative process seems especially inapt
where the minority asserts not only the fundamental inter-
est in deciding whether to bear a child, which was the
case in Maher, but the additional interest in preserving
one’s own health. Thus, although the Maher Court coun-
seled deference to the legislative process where the funding
of non-therapeutic abortions is concerned, 432 U.S. at 479-
80, there obviously is a point at which judicial intervention
in the abortion controversy is appropriate. See generally
Roe v. Wade, supra. We believe that point is reached when
a state singles out therapeutic abortions for exclusion from
its medicaid program for the poor.
Defendants and amici contend that requiring subsidy
for therapeutic abortions will subvert the Supreme Court’s
holdings in Maher v. Roe, supra, and Poelker v. Doe, supra,
by permitting physicians to certify as therapeutic abortions
that are in fact purely elective. Whether our holding will
be subject to this abuse we cannot portend. Remedies for
abuse lie both within the medical profession and in Title
XIX, 42 U.S.C. § 1396h. See generally Roe v. Wade, supra,
410 U.S. at 166; Zbaraz v. Quern, supra, 469 F. Supp. at
1221.
IV. Attorneys’ Fees
Plaintiffs brought this action under 42 U.S.C. § 1983.
The district court awarded plaintiffs $4,442.50 in attorneys’
A-27
fees. Under the Civil Rights Attorney’s Fees Awards Act
of 1976, 42 U.S.C. § 1988, a district court has discretion to
award ‘‘a reasonable attorney’s fee’’ to ‘‘the prevailing
party’’ in actions brought under certain civil rights stat-
utes, one of which is section 1983, Simpson v. Weeks, 570
F.2d 240, 244 n.4 (8th Cir. 1978).
The district court awarded plaintiffs attorneys’ fees
because they prevailed on their claim that the Missouri
regulation is contrary to Title XIX, although the scope of
relief was restricted under the court’s interpretation of the
Hyde Amendment. Citing Lund v. Affleck, 442 F. Supp.
1109, 1113 (D.R.I. 1977), the district court decided that
plaintiffs’ lack of success below on their substantial con-
stitutional claim was no bar to an award of attorneys’ fees.
We agree. See generally Kimbrough v. Arkansas Activities
Association, 574 F.2d 423 (8th Cir. 1978).
The reasonableness of the district court’s computation
of the attorneys’ fee is not disputed. Nor have defendants
shown ‘‘special circumstances [that] would render such
an award unjust.’? Wharton v. Knefel, 562 F.2d 550, 557
(8th Cir. 1977). Finally, we do not believe the district court
abused its discretion in awarding attorneys’ fees based
on all of the plaintiffs’ attorneys’ work and not just on the
substantial claim on which they were successful. See Brown
v. Bathke, 588 F.2d 634, 638 (8th Cir. 1978).
Affirmed in part, reversed in part, remanded for in-
junctive relief in accord with this opinion.
MceMANUS, District Judge, concurring in the result.
I concur in the majority’s opinion affirming the trial
court’s award of attorney’s fees. With respect to that por-
tion of the opinion reversing the trial court on the merits
of the abortion funding claim, I concur in the result but
for different reasons.
A-28
First, I am in agreement with the majority and the
trial court that the Missouri regulation as written in in-
consistent with Title XIX (Medicaid) as enacted. I do not
agree that the Hyde Amendment (Hyde) is a substantive
amendment of Medicaid, as the majority holds and that
the trial court apparently held. In short, I view Hyde as
having no effect on Medicaid. My reasons for so viewing
Hyde have been stated in my dissent in our accompanying
ease of Hodgsor v. Board of County Commissioners,
F.2d (Sth Cir. ) (No. 79-1665) and need not
be reiterated heve. See also Preterm, Inc. v. Dukakis, 591
F.2d 121, 134-38 (1st Cir. 1979) (Bownes, J., dissenting) ;
Planned Parenthood Affiliates v. Rhodes, 477 F. Supp. 529,
537-39 (S.D. Ohio 1979) (Kinneary, J., presiding); Doe v.
Busbee; 471 F. Supp. 1326, 1332-34 (N.D. Ga. 1979) (Mur-
phy, J., presiding).
Furthermore, I am of the opinion that the ruling be-
low should have been limited to holding that the Missouri
regulation is void and unenforceable because inconsistent
with Medicaid as enacted. I am of the view that the trial
court exceeded its equitable discretion by judicially amend-
ing the state regulation to conform to Medicaid as sup-
posedly affected by Hyde. Thus, in light of my view of
the case and what should have been the limited holding
below, I would reverse on that basis alone and see no need
to reach the constitutionality of the state regulation.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS,
EIGHTH CIRCUIT.
A-29
APPENDIX 2
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Nos. 79-1275 and 79-1346
SEPTEMBER TERM, 1979
REPRODUCTIVE HEALTH SERVICES,
et al.,
Appellants,
= llees,
a Appeals from the United
States District Court for
v. > the Western District of
Missouri
DAVID R. FREEMAN, Director, etc., et al.,
Appellees,
Cross-Appellants.
4
Upon petition for rehearing of appellants and cross-
appellees, Reproductive Health Services and Robert H.
Duemler, M.D., for an allowance of attorney’s fees and costs,
and the response thereto, it is ordered that attorney’s fees
be allowed in the amount of $3,000 and that costs be allowed
in the amount of $1,393.01, for a total allowance of $4,393.01.
February 11, 1980.
A-30
APPENDIX 3
IN THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
+
MICHAEL FRIEMAN, M.D. et al.,
Plaintiffs,
VS. - No. 77-4171-CV-C
JAMES F. WALSH, et al.,
Defendants.
4
OPINION AND ORDER
The State of Missouri, by statutory and regulatory
law’, has taken the position that no public funds are to be
spent on abortions unless ‘‘the attending physician in the
exercise of his best clinical, medical judgment believes a
full-term pregnancy and childbirth would cause cessation of
the mother’s life.’”?
Plaintiffs Freiman and Duemler (medical doctors
actively engaged in the medical practice of obstetrics and
gynecology in the St. Louis area) and plaintiff Reproduc-
tive Health Services (a Missouri not-for-profit corporation
which operates and maintains an out-patient, first-tri-
mester abortion facility) state that they presently provide
A-31
and perform pregnancy termination procedures to numer-
ous patients who are eligible for Missouri medicaid as-
sistance. Plaintiffs contend that the vast majority of these
abortions were medically necessary and medically indi-
eated in light of all factors which plaintiffs feel, in their
professional, medical judgment, are relevant to the pa-
tients’ well-being: physical, emotional, psychological, fa-
milial, and the woman’s age. Plaintiffs further assert that
‘‘the performance of an abortion as necessary to prevent
cessation of the patient’s life is not today a medical re-
ality.’’
Based on these and other facts alleged in their Com-
plaint, plaintiffs state that the above-quoted regulation
should be declared violative of the United States Consti-
tution and ask that this Court issue appropriate Orders
restraining defendants from enforcing it.
Specifically, plaintiffs contend that the regulation:
(a) denies to plaintiffs and their patients due proc-
ess and equal protection of the laws;
(b) is unconstitutionally vague and uncertain on its
face, in violation of the Fourteenth Amendment;
(c) deprives plaintiffs and their patients of the right
to privacy in the physician-patient relationship,
‘fas protected by the First, Fourth, Fifth, Ninth,
and Fourteenth Amendments to the United States
Constitution’’;
(d) deprives plaintiffs of the right to practice medicine
according to the highest standards of medical
practice, ‘‘as guaranteed by the First, Fourth,
Fifth, Ninth, and Fourteenth Amendments to the
United States Constitution’’;
(e) deprives plaintiffs’ patients of their fundamental
right to determine whether to bear children;
A-32
(f) deprives plaintiffs’ patients of their right to re-
ceive safe and adequate medical advice and treat-
ment pertaining to whether to carry a given preg-
nancy to term and the method of termination;
(g) imposes a cruel and unusual punishment upon
indigent Missouri medicaid eligible women by fore-
ing and coercing them to bear each pregnancy they
conceive; and
(h) bears no rational relationship to any legitimate
state interest.
Also at issue is whether the Missouri laws here at
issue are violative of Title XIX of the Social Security Act,
42 U.S.C. §§ 1396 et seq., (the Medicaid Act).
Whether and to what extent the various levels of gov-
ernment should fund abortions is a hotly debated issue,
rife with social and religious implications. A resolution of
that issue, is, however, beyond the competence of this
Court. Those who would insist upon a judicial resolution
of such an issue simply ‘‘misconceive . . . the role of the
Judiciary.’’ Beal v. Doe, 432 U.S. 438, 447, 97 S. Ct. 2366,
03 L. Ed. 2d 464, 474, fn. 15 (1978).9
Accordingly, the issues before this Court are legal in
nature and narrow in scope; the policy decisions have been
and will be made elsewhere.
With this in mind, a resolution of the issues presented
to the Court by this cause will now be made.
I
DOES MISSOURI LAW CONTRAVENE TITLE XIX
OF THE SOCIAL SECURITY ACT?
Title XIX of the Social Security Act,‘ which estab-
lishes the Medicaid Program, creates a framework whereby
participating states,” with the aid of federal funds, pro-
A-33
vide medical services to certain needy persons. A state
need not participate in the Medicaid program, but once it
chooses to do so, it must comply with applicable federal
law.
While the Medicaid program gives states broad dis-
cretion in adopting standards for determining the extent of
medical assistance to be provided, this discretion is not un-
fettered: the standards must be ‘‘reasonable’’ and ‘‘con-
sistent with the objectives’’ of the Act. 42 U.S.C. §1396a
(a)(17). Futher, the regulations promulgated by the Sec-
retary of Health, Education and Welfare pursuant to Title
XIX provide that a state which participates in the Medicaid
program ‘‘may not arbitrarily deny or reduce the amount,
duration, or scope of, such services to an otherwise eligible
individual solely because of the diagnosis, type of illness or
condition.’’ 42 C.F.R. § 449.10(a) (5) (i).
The State of Missouri has drawn to this Court’s atten-
tion no other illness or condition where the attending
physician must certify, as a prerequisite to his patient’s
qualifying for Medicaid assistance, that nontreatment of
the illness or condition would ‘‘cause cessation of the [pa-
tient’s] life.’’ As the Court stated in Preterm, Ine. v.
Dukakis, No. 78-1324, slip op. at 10 (1st Cir. Jan. 15, 1979) :
‘*When a state singles out one particular medical con-
dition—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.
* ” *
‘*We find it ‘unreasonable’ and wholly ‘[in]consistent
with the objectives of the Act’, 42 U.S.C. Section 1396a
(a)(17), tor a state to provide abortion services and
A-34
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 de-
cision to pay for medical care is based on the distine-
tion between life and death.’’
-—_—
Plaintiffs, therefore, must prevail on their claim that
the State of Missouri has, in limiting public funding of
abortions to those instances where ‘‘a full-term pregnancy
and childbirth would cause cessation of the mother’s life,’’
transgressed the dictates of Title XIX and the regulations
promulgated thereunder.
II
RELIEF
As plaintiffs request the issuance of a declaratory
judgment and a permanent injunction restraining the en-
forcement of the state laws in question, this Court must be
guided by and apply equitable principles in formulating the
appropriate remedy.”
To order the State of Missouri to fund all abortions
of needy persons where the attending physician certifies
that the abortion is ‘‘medically necessary’’ would be, in
view of the Hyde Amendment, highly inequitable—or, as
Judge Caffrey put the matter—‘‘it would be anomalous.”
Jaffe v. Sharp, No. 78-1637-C, slip op. at 14 (D. Mass.
July 28, 1978), affirmed in part, remanded in part, sub
nom. Preterm, Inc. v. Dukakis, supra.
The Hyde Amendment, Section 101 of Pub. L. 95-205,
91 Stat. 1460 (the appropriations act for the Department
of Health, Education and Welfare for fiscal vear 1978),8
provides:
‘‘None of the funds contained in this Act shall he
used to perform abortions except when the life of the
mother would be endangered if the fetus were carried
A-35
to term; or except for such medical procedures neces-
sary for the victims of rape or incest, when such rape
or incest have been reported promptly to a law enforce-
ment 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 preg-
nancy were carried to term when so determined by two
physicians.’’
Plaintiffs argue that ‘‘the impact of the Hyde Amend-
ment has been merely to withdraw federal funding contri-
butions from the costs of those abortions still required to
be performed under state Medicaid programs (i.e., medi-
cally necessary abortions). The costs of such abortions
must be met 100% by the state itself, as a condition of
state participation in and federal funding by Medicaid
generally.’’
Plaintiffs’ view of the Hyde Amendment and its ef-
fect on state obligations under Medicaid has received sup-
port in some of the cases. For instance, in Doe v. Mathews,
422 F. Supp. 141 (D.D.C. 1976), the Court, at 143, 146,
stated :
‘‘The Hyde Amendment appears to be simply a limi-
tation on the Federal government’s undertaking under
Title XIX to reimburse the jurisdictions participating
in the Medicaid program.
* * %:
‘* .. Title XIX only binds the federal government to
reimburse the states ‘[f]rom the sums appropriated
therefor.’ 42 U.S.C. § 1396b(a) (1970). A state, then,
may have assumed the risk, in setting up its medical
assistance program, of in fact paying for a somewhat
greater share of the cost of the program than it might
have originally anticipated.’’
A-36
The District Court in Zbaraz v. Quern, No. 77-C-4522,
slip op. at 12 (May 15, 1978) (appeal pending before
Seventh Circuit), quickly dismissed the argument that the
Hyde Amendment affects obligations imposed by Title XIX
with the observation: ‘‘Limitations on the use of funds in
an appropriations bill will not suspend statutory obliga-
tions.’’
Plaintiffs position was rejected, however, by the First
Circuit in Preterm, Inc. v. Dukakis, supra, where the ma-
jority, after an extensive review of the Congressional de-
bates, concluded that ‘‘the Hyde Amendment was intended
as more than a cost-shifting device.’’ Id., slip op. at 26.
At 25-26, the majority held:
‘‘that the legislative history of the Hyde Amendment
is consistent with the cooperative federal-state struc-
ture of the Medicaid Act and reveals that the Amend-
ment constituted a substantive policy decision con-
cerning the public funding of abortions which left the
states free to fund more abortions than those for
which federal funds were made available by the Amend-
ment, but did not require them to do so. The Medicaid
Act, to the extent of its repugnanecy with the Hyde
Amendment, has therefore heen altered by the Amend-
ment.”’
After a careful review of the applicable law, this Court
is of the opinion that the Hyde Amendment, even when
viewed purely as an appropriations act, does not cause
there to be imposed upon participating states the burden
of providing 100% of the funding for all medically neces-
sary abortions for which federal reimbursement is pre-
cluded by the Amendment. In arriving at this conclusion,
this Court necessarily disagrees with the proposition that
a state ‘‘[a]ssumes the risk, in setting up its medical as-
sistance program, of in fact paying for a somewhat greater
A-37
share of the cost of the program than it might have origi-
nally anticipated.’’ Doe v. Mathews, supra, at 146. Just
as Title XIX only binds the federal government to reim-
burse the states ‘[f]rom the sums appropriated therefor.’
42 U.S.C. §1396b(a) (1970),’’ Id., at 146, Title XIX, in
this Court’s judgment, only binds the states to fund those
medical procedures for which it will be reimbursed in ac-
cordance with the sharing formula set out in Title XIX. See
42 U.S.C. §1396b(a) and §1396d(b).'°
Viewed purely as an appropriations act (as plaintiffs
argue it should be viewed), the Hyde Amendment can have
no effect whatsoever on the rights conferred upon the par-
ticipating states by the substantive sharing provisions of
Title XIX. Just as Title XIX imposes upon the States a
great many obligations, so does it confer upon them certain
rights and protections.
While addressing the matter from a dramatielly dif-
ferent approach than does this Court, the First Circuit
emphasized, as does this Court, that the Federal-State
fiscal partnership is the most fundamental aspect of the
Medicaid program. In Preterm, Ine. vy. Dukakis, supra,
slip op. at 22, the Court stated:
‘*‘[We do not embrace plaintiffs’] reading of the
[Hyde] Amendment as a mere withdrawal of federal
monies. Although that reading may permit the Hyde
Amendment and the Medicaid 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 Medi-
caid Act on a more pervasive and fundamental level
than would result from reading the Amendment as a
substantive alteration of those requirements. The Medi-
caid program is one of federal and state cooperation
in funding medical assistance; a complete withdrawal
of the federal prop in the system with the intent to
A-38
drop the total cost of providing the service upon the
states, runs directly counter to the basic structure of
the program and could seriously cripple a state’s at-
temps to provide other necessary medical services em-
braced by its plan.’’ [emphasis added; footnote omit-
ted]
The First Circuit also cites that portion of McRae v.
Mathews, 421 F. Supp. 433, 538 (E.D.N.Y. 1976), vacated
and remanded on other grounds, sub nom. Califano v. Me-
Rae, 433 U.S. 916, 97 S. Ct. 2993, 53 L. Ed. 2d 1103 (1977),
wherein Judge Dooling repected the argument that the
Hyde Amendment for Fiscal Year 1977 had not altered a
state’s obligation to fund abortions otherwise required to
be funded under the Medicaid Act because:
‘*The argument overlooks the essential nature of the
Medicaid legislation. The state and federal govern-
ments 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, 1396d(b)).’?2?
While Congress might choose to amend the substantive
sharing formula set forth in §1396d(b) and while a state
which chose to participate in the Medicaid program would
be bound by that new sharing formula, no argument has
been made—nor could such an argument be made—that
Congress, through the Hyde Amendment, intended to ef-
fect an alteration of the substantive sharing formula set
forth in §1396d(b).
Thus, while plaintiffs prevail on the merits of this
cause, the relief afforded will be limited in nature; that
is, while the Missouri statutory and regulatory laws limit-
ing public funding of abortions are violative of Title XIX,
this Court views the applicable federal law as requiring
A-39
that Missouri fund abortions for the needy only insofar as
it will receive reimbursement therefur puysuant to the sub-
stantive sharing formula set forth in the Medicaid statute.
To the extent that the Hyde Amendment withdraws federal
funding of Medicaid abortions, Missouri is thereby re-
lieved of its burden to contribute its share to fund such
abortions.
Nor does this Court believe that the Missouri laws here
in question, when thus made consistent with the Hyde
Amendment, run afoul of the Constitution.
In applying Equal Protection analysis to the facts of
this case, it should be initially observed that
‘‘The Constitution imposes no obligation on the States
to pay the pregnancy-related medical expenses of in-
digent women, or indeed to pay any of the medical
expenses of indigents. But when a State decides to al-
leviate some of the hardships of poverty by providing
medical care, the manner in which it dispenses bene-
fits is subject to constitutional limitations.”’
Maher v. Roe, 432 U.S. 464, 469—470, 97 S. Ct. 2376, 53 L.
Ed. 2d 484, 492 (1977). Further, strict judicial scrutiny
will be applied to governmental classifications where the
classification ‘‘operates to the disadvantage of some sus-
pect class or impinges upon a fundamental right explicitly
or implicitly protected by the Constitution.’’ San Antonio
School District v. Rodriguez, 411 U.S. 17, 93 S. Ct. 1278, 36
L. Ed. 2d 16, 33 (1973). If no suspect class or fundamental
Constitutional right is involved, the classification in ques-
tion ‘‘must still be examined to determine whether it ra-
tioually furthers some legitimate, articulated state purpose
and therefore does not constitute an invidious discrimina-
tion in violation of the Equal Protection Clause of the
Fourteenth Amendment.’’ San Antonio School District v.
Rodriguez, supra, at 17, 36 L. Ed. 2d at 33.
A-40
Clearly, the Missouri scheme, is made consistent with
the Hyde Amendment, does not operate to the disadvantage
of some suspect class, for the Supreme Court ‘‘has never
held that financial need alone identifies a suspect class for
purposes of equal protection analysis.’’ Maher v. Roe,
supra, at 471, 53 L. Ed. 2d at 492—93. Whether that scheme
‘‘impinges on a fundamental right explicitly or implicitly
protected by the Constitution’’ is a closer question.
Plaintiffs rely on, inter alia, Shapiro v. Thompson, 394
U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969) and Me-
morial Hospital v. Maricopa County, 415 U.S. 250, 94 S.
Ct. 1076, 39 L. Ed. 2d 306 (1974) to support their position
that a state which will fund the childbirth expenses of an
indigent but not the expenses of certain therapeutic abor-
tions impinges on a fundamental right explicitly or im-
plicitly protected by the Constitution. These cases are not
applicable to the one now before this Court, however. As
the Court in Maher v. Roe, supra, observed at 474, fn. 8,
53 L. Ed. 2d at 495:
‘‘But the claim here is that the State ‘penalizes’ the
woman’s decision to have an abortion by refusing to
pay for it. Shapiro and Maricopa County did not hold
that States would penalize the right to travel inter-
state by refusing to pay the bus fares of the indigent
travelers. We find no support in the right-to-travel
cases for the view that Connecticut must show a com-
pelling interest for its decision not to fund elective
abortions.’’
At 475—76, 53 L. Ed. 2d at 495—96, the Court in Maher
v. Roe, supra, emphasized :
‘*There is a basic difference between direct state inter-
ference with a protected activity and state encourage-
ment of an alternative activity consonant with legisla-
A-41
tive policy. Constitutional concerns are greatest when
the State attempts to impose its will by force of law;
the State’s power to encourage actions deemed to be
in the public interest is necessarily far broader.’’
Plaintiffs also place reliance upon the Supreme
Court’s 1973 decisions Roe v. Wade, 410 U.S. 113, 93 S. Ct.
705, 35 L. Ed. 2d 147 and Doe v. Bolton, 410 U.S. 179, 93
S. Ct. 739, 35 L. Ed. 2d 201. It is, of course, true that the
Supreme Court ‘‘has recognized that a right of personal
privacy, or a guarantee of certain areas or zones of privacy,
does exist under the Constitution,’’ and that ‘‘[t]his right
of privacy ... is broad enough to encompass a woman’s
decision whether or not to terminate her pregnancy.’’ Roe
v. Wade, supra, at 152, 153, 35 L. Ed. 2d at 176, 177. But
again, the Court in Roe v. Wade was concerned with ‘ [t]he
detriment that the State would impose upon the pregnant
woman by denying this choice altogether,’’ a matter wholly
distinct from the issue now facing this Court. As the Court
explained in Maher v. Roe, supra, at 473—474, 53 L. Ed. 2d
at 494:
‘TT ]he right in Roe v. Wade can be understood only
by considering both the woman’s interest and the na-
ture of the State’s interference with it. Roe did not
declare an unqualified ‘‘constitutional right to an
abortion,’’ as the District Court seemed to think.
Rather, the right protects the woman from unduly
burdensome interference with her freedom to decide
whether to terminate her pregnancy. It implies no limi-
tation on the authority of a State to make a value
judgment favoring childbirth over abortion, and to
implement that judgment by the allocation of public
funds.”’
Just as the Supreme Court in Maher v. Roe concluded
that ‘‘the Connecticut regulation does not impinge upon
A-42
the fundamental right recognized in Roe [v. Wade],’’ Id.
at 474, 53 L. Ed. 2d at 495, so too must this Court conclude
that the Missouri scheme here at issue (as construed con-
sistently with the dictates of the Hyde Amendment) fails to
impinge on the fundamental privacy right recognized in
Roe v. Wade.
Accordingly, for plaintiffs to prevail on their Equal
Protection claim, they must demonstrate that the Missouri
scheme (as construed to be consistent with the Hyde
Amendment) fails to rationally further some legitimate
state objective. San Antonio School District v. Rodriguez,
supra, at 17, 36 L. Ed. 2d at 33. This plaintiffs have failed
to do.
As the Supreme Court has noted, a state may have a
‘“‘strong and legitimate interest in encouraging normal
childbirth.’’ Beal v. Dee, supra, at 446, 53 L. Ed. 2d at 473,
Maher v. Roe, supra, at 478, 53 L. Ed. 2d at 497. The State
has a ‘‘strong interest in protecting the life of the fetus,’’
and ‘‘[t]hat interest exists throughout the pregnancy,
‘grow[ing] in substantiality as the woman approaches
term.’’’ Maher v. Roe, supra, at 478, 53 L. Ed. 2d at 497
(quoting from Roe v. Wade, supra). The Court further
observed in Maher v. Roe, supra, at 478, fn. 11, 53 L. Ed.
2d at 497:
‘In addition to the direct interest in protesting the
fetus, a State may have legitimate demographic con-
cerns about its rate of population growth. Such con-
cerns are basic to the future of the State and in some
circumstances could constitute a substantial reason
for departure from a position of neutrality between
abortion and childbirth.’’
That Missouri has a long history of favoring child-
birth over abortion is clear. That this is a legitimate, con-
stitutionally permissible stance is beyond dispute. That the
A-43
Missouri scheme here at issue (as made consistent with the
Hyde Amendment) rationally furthers this legitimate goal
is likewise clear. Consequently, the conclusion is compelled
that the Missouri scheme, as modified, does not transgress
the Equal Protection Clause of the Fourteenth Amendment.
That this result is the proper one receives further sup-
port from Poelker v. Doe, 432 U.S. 519, 97 S. Ct. 2391, 53
L. Ed. 2d 528 (1977), reversing Doe v. Poelker, 515 F.2d
041 (8th Cir. 1975). In that case, plaintiff had been denied
an abortion at a city-owned hospital in St. Louis, Missouri
as the result of a policy directive by the Mayor and a long-
standing staffing practice at the hospital involved. ‘‘The
directive, communicated to the Director of Health and
Hospitals by the Mayor, prohibited the performance of
abortions in the city hospitals except when there was a
threat of grave physiological injury or death to the moth-
er.’’ Poelker v. Doe, supra, at 520, 53 L. Ed. 2d at 530
[emphasis added]. The plaintiff in that case ‘‘was suf-
fering from cervical fibroid tumors and polyps, an ex-
tremely retroverted uterus and trichomycosis,’’ Doe v.
Poelker, supra, at 543, but ‘‘none of [the students and doc-
tors who saw her at the clinic] found any ‘medical rea-
sons’ to justify an abortion, defining such reasons as
severe sickness of the patient such as ‘severe diabetes,’
‘severe heart condition’ or ‘something of that type.’ ’’ Id.,
at 543.
The Supreme Court labeled those abortions which the
policy directive of the Mayor prohibited (i.e., those abor-
tions which were not necessary to save the life of the
mother or to prevent grave physiological injury) as ‘‘elec-
tive,’’ see 432 U.S. at 520, 53 L. Ed. 2d at 530, or ‘‘non-
therapeutic,’’ Id., at 521, 53 L. Ed. 2d at 531, and con-
eluded, at 521, 53 L. Ed. 2d at 531:
‘*For the reasons set forth in [Maher v. Roe, supra],
A-44
we find no constitutional violation by the city of St.
Louis in electing, as a policy choice, to provide pub-
licly financed hospital services for childbirth without
providing corresponding services for nontherapeutic
abortions.
* * *
‘‘[The Mayor’s] policy of denying city funds for abor-
tions such as that desired by Doe is subject to public
debate and approval or disapproval at the polls. We
merely hold, for the reasons stated in Maher, that the
Constitution does not forbid a State or city, pursuant
to democratic processes, from expressing a preference
for normal childbirth as St. Louis has done.’’ [empha-
sis added]
The same result on the Constitutional issue was
reached by Judge Gordon in Doe v. Mundy, 441 F. Supp.
447 (K.D. Wis. 1977), appeal dismissed, PE ok
(7th Cir. 1978). In that case, the Court was faced with a
County Hospital’s rule that provided, in part, that ‘‘ [p]reg-
nancy may be terminated therapeutically if it is compli-
cated by medical conditions of such nature and advanced to
such degree that continuation of pregnancy threatens the
life of the mother.’’ Judge Gordon, after carefully examin-
ing the recent Supreme Court cases on abortion, concluded,
at 452:
‘*. . . Beal, Maher, and Poelker declared no constitu-
tional violation in the failure to provide funding for
medically necessary abortions.
‘It follows that the county may choose to fund the
medical aspects of childbirth and decline to fund the
performance of any abortion which is not required be-
cause of a threat to a woman’s life imposed by con-
tinuation of her pregnancy. Accordingly, I find that
the plaintiffs cannot prevail on the merits of their
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claims that rule 26(b) and resolutions A and B violate
the due process or equal protection clauses. The de-
cisions in Maher and Poelker appear to me inescapably
to foreclose these claims.’’
The District Court in D. R. v. Mitchell, 456 F. Supp.
609 (D. Utah 1978) reached the same result. It was the
opinion of that Court that there was a fundamental dis-
tinction drawn by the Supreme Court in its 1977 abortion
decisions between a State’s prohibiting the performance of
certain abortions and a State’s refusal to provide funding
for certain abortions while simultaneously funding child-
birth expenses. As the District Court concluded, at 615:
‘*Persons in this country have many rights which they
may exercise freely in the sense that a government can-
not prohibit the exercise of the respective rights. This
does not mean, however, that the government has a
corresponding duty to fund the exercise of that right.
Likewise, the state’s refusal to pay for the exercise of
the right does not limit, penalize or prohibit the exer-
cise of that right in the constitutional sense... . It is
the opinion of this court that the failure to distinguish
these concepts would make the Constitution ‘a man-
date for governmental interference, rather than a
bulwark against it.’’’ [first emphasis in the original,
second emphasis supplied by this Court; citations
omitted]
In summary, this Court holds that it is not violative
of the Equal Protection Clause for a state to pay for an
indigent’s childbirth expenses while refusing to fund the
expenses incurred by an indigent to obtain an abortion
‘‘except when the life of the mother would be endangered
if the fetus were carried to term; or except for such medical
procedures necessary for the victims of rape or incest,
when such rape or incest have been reported promptly to
A-46
a law enforcement agency or public health service, or ex-
cept in those instances where severe and long-lasting physi-
cal health damage to the mother would result if the preg-
nancy were carried to term when so determined by two
physicians. ’’
The Court has considered plaintiffs’ remaining Consti-
tutional arguments and is firmly convinced that they, too,
should be denied.
II
ORDER
For the reasons above-stated, this Court must declare
the Missouri regulation here at issue to be contrary to the
federal Medicaid Act (Title XIX of the Social Security
Act), 42 U.S.C. §§1396, et seq. Further, the Court must,
and it hereby does, enjoin defendants from enforcing the
aforesaid regulation except insofar as it is consistent with
the language of the current Hyde Amendment. Defendants
are further ordered to provide funding for all abortions
for which the federal government contributes its share
pursuant to the Medicaid Act and to continue to provide
such funding for so long as it is a participant in the federal
Medicaid Program.
IT IS SO ORDERED.
Elmo B. Hunter
JUDGE
A-47
FOOTNOTES
(as amended by Nunc Pro Tunc of January 29, 1979)
1By statute, Missouri has provided that no Medicaid funds are to be
— ed for abortions “unless such abortions are medically indicated.”
R.S. Mo. §208.153(12). By regulation, the State has declared that “ ‘ [m]ed-
ically indicated’ shall mean where the attending physician in the exercise
of his best clinical, medical judgment believes a full-term pregnancy and
childbirth would cause cessation of the mother’s life.” 13 C.S.R. §40-81.100.2.
213 C.S.R. §40-81.100.2.
3After ruling that neither Title XIX nor the Equal Protection Clause re-
quires that states fund elective abortions, the Supreme Court, in Beal v.
Doe, supra, at 448, fn. 15, 53 L. Ed. 2d at 474, concluded:
“But we leave entirely free both the Federal Government and the States,
through the normal processes of dmocracy, to provide the desired fund-
ing. The issues present ge decisions of the widest concern, They
should be resolved by the representatives of the people, not by this
Court.” [emphasis added]
442 U.S.C. §§1396 et seq.
5Missouri is a participating state. See R.S. Mo. §208.151 et seq.
6Missouri does not even allow for these exceptions.
TIn Abbott Laboratories v. Gardner, 387 U.S. 136, 155, 87 S. Ct. 1507, 18
L. Ed. 2d 681, 695 (1967), the Supreme Court noted that “the declaratory
judgment and injunctive remedies are equitable in nature .. .” As the
Second Circuit stated in Holup v. Gates, 544 F.2d 82, 85, fn. 3 (1976): “The
granting of declaratory relief is governed by equitable principles, .. . and
within the sound discretion of the reviewing court.”
8Congress, in the final days of the Second Session of the 95th Congress,
reenacted the identical language in its FY 1979 HEW appropriations bill.
See Preterm, Inc. v. Dukakis, supra, slip op. at 11, fn. 5.
9It should be noted that the “Hyde Amendment” at issue in Doe v.
Mathews was Section 209 of Pub. L. No. 94-439, 90 Stat. 1418, the prede-
cessor to the current Hyde Amendment. The former Hyde Amendment
differs from the current one in that the former permitted the use of federal
funds to perform abortions only “where the life of the mother would be
endangered if the fetus were carried to term.”
1042 U.S.C. §1396d(b) provides, in part:
“The term ‘Federal medical assistance percentage’ for any State shall
be 100 per centum less the State percentage; and the State percentage
shall be that percentage which bears the same ratio to 45 per centum
as the square of the per capita income of such State bears to the square
of the per capita income of the continental United States . . . except that
(1) the Federal medical assistance percentage shall in no case be less
than 50 per centum or more than 83 per centum,.. .”
11The parties have gs neory that prior to the enactment of the various
Hyde Amendments, “the federal government’s contribution to the State of
Missouri for medicaid reimbursement for abortions was in some instances
on a federal to state ratio of 90:10 percent when the same were considered
as part of the family planning program and in some instances on a federal
to state ratio of approximately 60:40 percent when the same were considered
as part of the regular medical assistance program.
“Tt is the belief of all parties that the federal government no longer
considers any abortions, even those qualifying under the ‘Hyde Amend-
ment’ provisions, to be reimbursable under the family planning program
ratio and that all abortions, if any, are reimburseable only under the regu-
lar medical assistance program in its present ratio for Missouri of 60:66: 39.34
percent.”
A-48
APPENDIX 4
IN THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
eS
REPRODUCTIVE HEALTH
SERVICES, a Missouri Corpora-
tion, et al.,
Plaintiffs, : No. 77-4171-CV-C
VS,
JAMES F. WALSH, et al.,
Defendants. :
a
MEMORANDUM AND ORDER
Plaintiffs brought this action on J uly 29, 1977, challeng-
ing the validity of a Missouri regulation which prohibited
public funding of abortions except in those cases where
the attending physician, in the exercise of his best clinical,
medical judgment ‘‘believes a full-term pregnancy and
childbirth would cause cessation of the mother’s life.’’ In
stating their claims in the Complaint, plaintiffs make
reference to, inter alia, the Fourteenth Amendment to the
United States Constitution and 42 U.S.C. §1983. Jurisdic-
tion is founded upon 28 U.S.C. §1331 and §1343.
In this Court’s opinion, plaintiffs have properly raised
and argued two very substantial claims with regard to the
A-49
validity of the challenged Missouri regulation: (1) that
the Missouri regulation contravened the dictates of the
Medicaid Act and the regulations promulgated thereunder
(see Part I of ‘‘Plaintiffs’ Response and Suggestions to
Court Order of February 17, 1978,’’ received by this Court
on March 1, 1978), and (2) that the Missouri regulation
transgressed the equal protection clause of the Fourteenth
Amendment.
Plaintiffs prevailed on their first substantial claim,
although the relief granted by the Court was not as ex-
tensive as plaintiffs desired. As made clear in this Court’s
Opinion and Order on the merits of this case, the reason
plaintiffs were not granted all the relief they sought with
regard to their Medicaid Act claim is that this Court dis-
agreed with plaintiffs’ view of the Hyde Amendment’s im-
pact. At p. 11 of their March 1, 1978 Response and Sugges-
tions, plaintiffs argued:
‘‘Thus, the impact of the Hyde Amendments has been
merely to withdraw federal funding contributions from
the costs of those abortions still required to be per-
formed under state Medicaid programs (i.e., medically
necessary abortions). The costs of such abortions must
be met 100% by the state itself, as a condition of state
participation in and federal funding by Medicaid gen-
erally.’’
This Court, however, in its January 26, 1979 Opinion
and Order, rejected plaintiffs’ argument, stating, for the
reasons set forth therein (and which will not be restated
here): ‘‘After a careful review of the applicable law, this
Court is of the opinion that the Hyde Amendment .. . does
not cause there to be imposed upon participating states the
burden of providing 100% of the funding for all medically
necessary abortions for which federal reimbursement is
precluded by the Amendment.’’ Consequently, plaintiffs
A-50
did not wholly prevail on their Title XIX (Medicaid Act)
claim. As this Court stated on January 26, 1979:
‘‘Thus, while plaintiffs prevail on the merits of this
cause, the relief afforded will be limited in nature; that
is, while the Missouri statutory and regulatory laws
limiting public funding of abortions are violative of
Title XIX, this Court views the applicable federal law
as requiring that Missouri fund abortions for the needy
only insofar as it will receive reimbursement therefor
pursuant to the substantive sharing formula set forth
in the Medicaid statute. To the extent that the Hyde
Amendment withdraws federal funding of Medicaid
abortions, Missouri is thereby relieved of its burden
to contribute its share to fund such abortions.”
Having thus partially invalidated the challenged Mis-
souri regulation on the basis of plaintiffs’ Title XIX claim.
it was not necessary to rule on plaintiffs’ claims that that
regulation, as promulgated by the State of Missouri, vio-
lated the Fourteenth Amendment: rather, what was done
by the Court was to test the Constitutionality of the regula-
tion as it was modified by this Court to bring it into com-
pliance with the dictates of the federal Medicaid Act. Thus,
defendants’ argu aent, set forth at pp. 4-5 of their Febru-
ary 20, 1979 Suggestions in Opposition, that this Court
should deny plaintiffs’ Motion for Attorney Fees because
this Court ‘‘den[ied] relief with respect to all constitu-
tional arguments advanced by the plaintiffs in this ease’’
must fail. As has just been noted, because plaintiffs par-
tially prevailed on their Title XIX claim, it became un-
necessary to rule on the Constitutionality of the Missouri
regulation in its original form. Whether that regulation,
without the benefit of the modification imposed by this
Court pursuant to Title XIX, would have sustained an
Equal Protection attack, is an issue which was not ad-
dressed by the Court.
A-d1
Plaintiffs, because of their Title XIX argument, forced
the modification that may have been the sine qua non of the
denial of plaintiffs’ equal protection argument." Conse-
quently, the Court cannot accept defendants’ argument that
plaintiffs should be denied attorney fees under 42 U.S.C.
§1988 because of their failure to prevail on the ultimate
equal protection issue, that issue being: does the Missouri
regulation, as made consistent with the Hyde Amendment,
transgress the Equal Protection clause?
Clearly, plaintiffs are entitled to recover attorney
fees pursuant to 42 U.S.C. §1988 by virtue of their pre-
vailing on their argument that the Missouri regulation is
contrary to Title XIX of the Social Security Act. The
reason that state laws which conflict with federal laws
must be stricken is, of course, the Supremacy Clause, U.S.
CONST. ART. VI, cl. 2. 42 U.S.C. §1983 creates the cause
of action which serves to vindicate svch rights.* Federal
jurisdiction over this claim is invoked either independently
under 28 U.S.C. §1343 or pendent to plaintiffs’ equal pro-
tection claim.** Plaintiffs raised their (1983 claim in their
*The Court expresses no opinion on whether the Missouri regulation,
as written by the State, would have survived an equal protection attack.
*As the Court stated in Lund v. Affleck, 442 F. Supp. 1109, 1113 (D.R.1.
1977): “[T]here is substantial authority that suggests that §1983 actions lie
to redress federal statutory as well as constitutional claims. [citing cases]”
**There can be no doubt in this case that plaintiffs’ equal protection
claim passes the substantiality test imposed by Hagans v. Lavine, 415 US.
528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974). In Hagans, the Court was faced
with a suit by certain AFDC recipients roe og provision of the New
York Code of Rules and Regulations permitting the State to recoup prior
unscheduled payments for rent from subsequent grants under the AFDC
program. The plaintiffs alleged that the recoupment regulation violated the
Equal Protection Clause and contravened the pertinent provisions of the
Social Security Act governing AFDC and the regulations promulgated
thereunder by HEW. The action sought injunctive and declaratory relief
pursuant to 42 U.S.C. §1983 and 28 U.S.C. §2201 and jurisdiction was invoked
under 28 U.S.C. §1343(3) and (4). Speaking to the jurisdictional question,
the Supreme Court, at 537, 39 L. Ed. 2d at 587, stated:
“Section 1343(3) therefore conferred jurisdiction upon the District
Court to entertain the constitutional claim if it was of sufficient sub-
stance to support federal jurisdiction. If it was, it is also clear that the
District Court could hear as a matter of pendent jurisdiction the claim
(Continued on next page)
A-52
Complaint and fully developed it, in subsequent briefing,
in terms of a conflict between Title XIX (and HEW) regu-
lations) and the Missonri regulation. As such, plaintiffs’
argument that the state regulation conflicted with the fed-
eral Medicaid Act was properly brought pursuant to their
claim for relief under $1983. Accordingly, a fee award
pursuant to 42 U.S.C. §1988 is appropriate. See Lund v.
Affleck, swpra, at 1112-1114.
42 U.S.C. §1988 provides, in part:
‘‘In any action or proceeding to enforce a provision
of sections 1981, 1982, 1983, 1985, and 1986 of this title,
title IX of Public Law 92-318, or in any civil action or
proceeding, by or on behalf of the United States of
America, to enforce, or charging a violation of, a pro-
vision of the United States Internal Revenue Code,
or title VI of the Civil Rights Act of 1964, the court,
in its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney’s fee
as part of the costs.’
Further, the Senate Report on the bill ultimately enacted
as the Civil Rights Attorney’s Fees Award Act of 1976
stated:
‘It is intended that the standards for awarding fees
be generally the same as under the fee provisions of the
1964 Civil Rights Act. A party seeking to enforce the
rights protected by the statutes covered by [the Civil
Rights Attorney’s Fees Award Act of 1976], if suecess-
ful, ‘should ordinary recover an attorney’s fee unless
special circumstances would render such an award un-
Footnote continued
of conflict between federal and state law, without determining that the
pod claim in its own right was encompassed within §1343.” {emphasis
ed]
Clearly, therefore, given the substantiality of plaintiffs’ equal protection
claim, this Court’s pendent jurisdiction over plaintiffs’ claim of conflict
between federal and state law has been properly invoked.
A-d53
just.’ Newman v. Piggie Park Enterprises, Inc., 390
U.S. 400, 402 (1968).’’
S. Rep. No. 94-1011, 94th Cong., 2d Sess. 4 (1976), reprinted
wm [1976] U.S. Code Cong. & Admin. News, pp. 5908, 5912.
In his affidavit in support of his motion for an award
of attorney fees, plaintiffs’ counsel, Mr. Frank Susman,
states:
(1) He has been practicing law since 1966.
(2) During the year and one-half that this litigation
has been pending, he has expended 64.5 hours in
the prosecution of this cause.
(3) The customary and reasonable hourly rates for
matters of this type during the time period in-
volved is $75.00 per hour.
(4) The customary and reasonable value of affiant’s
services is $4,837.50.
(5) Attorney Shurin, who has served plaintiffs as
local counsel, has been paid $250.00 for his serv-
ices in that capacity.
(6) The total amount due plaintiffs as their reason-
able attorney fees is $5,087.50.
The Court has considered Mr. Susman’s affidavit,
plaintiffs’ motion and suggestions, and defendants’ sugges-
tions in opposition thereto. Neither side has requested a
hearing on the matter.
The Court has further given careful consideration to
the factors set forth in Johnson v. Georgia Highway Ex-
press, Inc., 488 F.2d 714 (5th Cir. 1974). With regard to
those factors, the Court finds that the 64.5 hours expended
by Mr. Susman in the prosecution of this cause is a fair
and reasonable reflection of the time and labor required
by this case; the questions presented by this case are novel
A-54
and are difficult of resolution; accordingly, the skill re-
quired to perform the legal services necessary to properly
represent plaintiffs is high; plaintiffs interests have, in
this Court’s view, been well-represented by Mr. Susman
throughout this litigation; while no monetary relief has
been sought, the impact of a case such as this on the lives
of many individuals is very high; while plaintiffs did not
receive from this Court all the relief which they sought,
this lawsuit did result in an order requiring the State of
Missouri to significantly alter its policy with regard to
the public funding of abortions. This Court would set the
reasonable hourly rate in litigation of this type at $65.00
per hour, however, not the $75.00 per hour set forth in Mr.
Susman’s affidavit.
Having considered all the factors set forth in Johnson,
supra, and having been fully advised of the positions of
the parties, it is the opinion of this Court that plaintiffs
should be, and they are hereby, awarded attorney fees in
the sum of Four Thousand Four Hundred Forty-Two and
50/100 Dollars ($4,442.50) pursuant to the provisions of
42 U.S.C. $1988.
IT IS SO ORDERED.
Elmo B. Hunter
JUDGE
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