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May 3, 1974

Ann DOE et al., Plaintiffs,
Helene WOHLGEMUTH, Individually and as Secretary of the Department of Public Welfare, Commonwealth of Pennsylvania, et al., Defendants

Snyder, District Judge. Wies, Circuit Judge (dissenting).

The opinion of the court was delivered by: SNYDER

SNYDER, District Judge.

 The Plaintiffs, as welfare recipients and participants in the Pennsylvania Medical Assistance Program (PMAP), have filed their Complaint on behalf of themselves and all others similarly situated against the Pennsylvania Department of Public Welfare (Department) and certain of its Officers and/or Administrative Representatives. They challenge the State of Pennsylvania's refusal to provide reimbursement for the cost of abortions which they sought to have performed at Magee-Womens Hospital, Pittsburgh, Pennsylvania. The Department's Procedures hold that abortions may be performed under the PMAP only in the following situations: *fn1"

"1. There is documented medical evidence that continuance of the pregnancy may threaten the health or life of the mother;
2. There is documented medical evidence that the infant may be born with incapacitating physical deformity or mental deficiency; or
3. There is documented medical evidence that a continuance of a pregnancy resulting from legally established statutory or forcible rape or incest, may constitute a threat to the mental or physical health of a patient;
4. Two other physicians chosen because of their recognized professional competency have examined the patient and have concurred in writing; and
5. The procedure is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals."

 Jurisdiction was claimed under 28 U.S.C. § 1343(3) *fn2" and (4) *fn3" as derived from 42 U.S.C. § 1983. *fn4" The Plaintiffs claim that Title XIX of the Social Security Act requires reimbursement of physicians and hospital services for abortions which they elect; and they further claim the unrestricted right of such reimbursement under the Equal Protection Clause of the Fourteenth Amendment and the right to privacy as recognized in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) rehearing denied 410 U.S. 959, 93 S. Ct. 1409, 35 L. Ed. 2d 694.

 After hearing, the District Court on October 9, 1973, granted a Preliminary Injunction directing the Defendants to pay the reasonable costs of medical services rendered for any abortion performed in Allegheny County, Pennsylvania (as requested by the Plaintiffs) by a licensed physician on a woman otherwise eligible for PMAP benefits without additionally meeting the criterion hereinabove set forth.

 On the same date, the Court filed an Order requesting the convening of a Three Judge Court, as there appeared to be a substantial constitutional question as to whether the Department's Statewide Regulations and Procedures were consistent with the Social Security Act or operated to deny the Plaintiffs equal protection of the law. See: United States Dept. of Agriculture et al. v. Moreno, 413 U.S. 528, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973); Wilwording v. Swenson, 404 U.S. 249, 92 S. Ct. 407, 30 L. Ed. 2d 418 (1971); King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968); Charleston v. Wohlgemuth, 332 F. Supp. 1175 (E.D. Pa. 1971) affirmed 405 U.S. 970, 92 S. Ct. 1204, 31 L. Ed. 2d 246. Determination of the Class was referred to the Three Judge Court. On October 12, 1973, Chief Judge Collins J. Seitz of the Third Circuit duly ordered the empaneling of the Three Judge Court. On October 25, 1973, the Defendants filed an Answer which denied that the Plaintiffs had standing to sue, that the Court had subject matter jurisdiction over the cause of action, and that the Plaintiffs' Complaint stated a cause of action for which relief could be granted.

 A distillation of the PMAP shows that Pennsylvania is a participating State in a cooperative plan for providing reimbursement for medical services to the indigent under the Social Security Act (42 U.S.C. § 1396 et seq.). The Act makes provision for medical services to the "categorically needy" (42 U.S.C. § 1396a(a) (13), 1396(a) (13), 45 CFR 249.10(a) (1)), or to the "medically needy" (42 U.S.C. § 1396a(a) (10) (B), 45 CFR 249.10(a) (2)). Pennsylvania provides services to the "medically needy". 62 P.S. § 441.1 reads as follows:

"The following persons shall be eligible for medical assistance:
(1) Persons who receive or are eligible to receive cash assistance grants under this article;
(2) Persons who meet the eligibility requirements of this article for cash assistance grants except for citizenship durational residence and any eligibility condition or other requirement for cash assistance which is prohibited under Title XIX of the Federal Social Security Act; and
(3) The medically needy."

 It is noted that this last phrase is not otherwise defined, except by 62 P.S. § 442.1:

"A person shall be considered medically needy if he:
(1) Resides in Pennsylvania, regardless of the duration of his residence or his absence therefrom; and

 At the hearing before this Court, the parties stipulated that the allegations of fact contained in the Affidavits of R. Stanton Wettick, Jr., Douglass S. Thompson, C. Robert Youngquist, Henry J. Smith, and each of the named Plaintiffs would be accepted as true. From these, it is readily determined that the Plaintiffs had all been certified by the Department as eligible for participation in the PMAP; their pregnancies ranged from six to seventeen weeks; each of the named Plaintiffs were without assets to pay for an abortion or for any examination by physicians other than those at the Hospital or as would be provided by the Hospital; and, none of them were able to meet all of the requirements of the Department but, nevertheless, desired abortions. Prior to the issuance of the Injunction, each of the Plaintiffs unsuccessfully attempted to obtain an abortion from the Hospital (Magee-Womens Hospital), and the Hospital advised them that it could not provide the abortions unless, the abortions were either paid for in advance or the particular individuals submitted the documented matters required for reimbursement by the PMAP. The Hospital further advised each of the Plaintiffs that it had no procedures whereby doctors could be provided without charge to the Plaintiffs for the examination required by the PMAP. The Hospital then refused to provide abortions to each of the named Plaintiffs. It was further certified that the Hospital would have provided the abortions if the costs had been reimburseable under the PMAP.

 Magee-Womens Hospital is a nonprofit institution located in the City of Pittsburgh and is an approved provider of health services under the PMAP. The prior practice of the physicians associated with the Hospital was to schedule abortions within the first eleven weeks of pregnancy because the medical procedures used for abortion during that time period involved significantly lower risks of morbidity and mortality than such procedures at any later stage of pregnancy. The Hospital did not provide abortions to women more than twenty weeks pregnant without special permission and only in extremely unusual cases. Family Planning Services were provided to Medical Assistance recipients, and pharmacists filled prescriptions written by physicians at the Hospital for contraceptives. The costs for these services were reimbursed by the Department, regardless of whether the recipient was married or unmarried.

 Following the United States Supreme Court decisions in Roe v. Wade, supra, and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973) rehearing denied 410 U.S. 959, 93 S. Ct. 1410, 35 L. Ed. 2d 694, the Hospital began providing abortions to all Medical Assistance recipients without requiring the documented evidence from a performing physician and two other physicians, and had been submitting claims for reimbursement to the Department (about sixty per month). The Department rejected each of the claims for reimbursement because of the Hospital's failure to comply with the Department's Procedures. Effective October 1, 1973, the Hospital provided abortions only if the patient could pay for the abortion or could furnish the documented medical evidence required by the Department.

 At the hearing, the Three Judge Court requested the Attorney General to secure an affidavit relating to the intention of the Department with respect to any change that might be contemplated regarding its requirements for reimbursement for abortions. Subsequently, an Affidavit was filed by an Assistant Attorney General, to the effect that there was no intention on the part of the Department to change its current policies.

 The Three Judge Court also requested the Assistant Attorney General to procure from the United States Department of Health, Education and Welfare, a statement of their position on reimbursement for abortions. He subsequently filed a copy of a Memorandum of the United States as Amicus Curiae in the cases of New York State Department of Social Services, et al. v. Elizabeth Linda Klein, et al., No. 72-770, and Nassau County Medical Center, et al. v. Elizabeth Linda Klein, et al., No. 72-803, October Term 1972, dated May 1973, which took the position, in substance, that the Social Security Act did not require, but would not prevent, a Federally funded State Medicaid Program to pay for abortions that were not medically indicated. New York had limited coverage under its Medicaid Program for "the cost of care, services and supplies, which are necessary to prevent, diagnose, correct or cure conditions in the person that cause acute suffering, endanger life, result in illness or infirmity, interfere with his capacity for normal activity, or threaten some significant handicap." The State, in an "administrative letter", interpreted the provision as covering only "necessary and medically indicated care" and, therefore, denied "elective abortions not medically indicated." City of New York v. Wyman, 30 N.Y. 2d 537, 330 N.Y.S. 2d 385, 281 N.E. 2d 180 (1972). No violation of the Federal program was found in this situation.

 On December 27, 1973, this Court notified the Attorney General that the Amicus Curiae Brief filed in the Klein cases did not satisfy the requirements of the Three Judge Court, and requested that an affidavit be supplied with respect to the position of the Department of H.E.W. on the question of reimbursement of the cost of abortions, whether medically indicated or not. On January 12, 1973, the Assistant Attorney General notified the Court by letter that he was unable to secure the cooperation of the United States with respect to obtaining an affidavit of the type requested by the Court. He stated that the Brief in the Klein cases had been submitted in lieu of an affidavit and accurately reflected the position of the United States in the matter. Apparently, however, the Federal Government would share in the costs of abortions under the terms and provisions of the State Medicaid Program. *fn5"

 The Supreme Court has said ( Roe v. Wade, supra, 93 S. Ct. 727, 728):

"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is . . . . in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
* * *
"Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach."

 Thus, we are here concerned with "fundamental rights" which must be balanced against " compelling state interests" where legislative enactments including State-wide Regulations pursuant thereto must be narrowly drawn to express only state interests. Kramer v. Union Free School District, 395 U.S. 621, 627, 89 S. Ct. 1886, 1890, 23 L. Ed. 2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S. Ct. 1322, 1331, 22 L. Ed. 2d 600 (1969); Griswold v. Connecticut, 381 U.S. 479, 485, 85 S. Ct. 1678, 1682, 14 L. Ed. 2d 510 (1965); Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S. Ct. 1659, 1664, 12 L. Ed. 2d 992 (1964); Sherbert v. Verner, 374 U.S. 398, 406, 83 S. Ct. 1790, 1795, 10 L. Ed. 2d 965 (1963); Cantwell v. Connecticut, 310 U.S. 296, ...

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