UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
December 10, 1974
ANN DOE; BETTY DOE, A MINOR, BY HER MOTHER AS REPRESENTATIVE, MOTHER B. DOE, A MINOR, BY HER MOTHER AS REPRESENTATIVE, MOTHER D. DOE; ELAINE DOE, JANE DOE, A MINOR BY HER FATHER AS REPRESENTATIVE FATHER J. DOE; NANCY DOE; PATRICIA DOE; RUTH DOE; SYLVIA DOE; AND TONI DOE, EACH INDIVIDUALLY AND ON BEHALF OF ALL OTHER WOMEN SIMILARLY SITUATED, APPELLEES AND CROSS-APPELLANTS,
HELENE WOHLGEMUTH, INDIVIDUALLY AND AS SECRETARY OF THE DEPARTMENT OF PUBLIC WELFARE, COMMONWEALTH OF PENNSYLVANIA; ROGER CUTT, INDIVIDUALLY AND AS ASSISTANT DEPUTY SECRETARY FOR MEDICAL SERVICES, COMMONWEALTH OF PENNSYLVANIA; GLENN JOHNSON, INDIVIDUALLY AND AS CHIEF OF THE BUREAU OF MEDICAL ASSISTANCE, COMMONWEALTH OF PENNSYLVANIA; EDWARD KALBERER, INDIVIDUALLY AND AS EXECUTIVE DIRECTOR OF THE ALLEGHENY COUNTY BOARD OF ASSISTANCE; AND THE DEPARTMENT OF PUBLIC WELFARE, OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLANTS AND CROSS-APPELLEES.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 73-846
Before KALODNER, VAN DUSEN and GIBBONS, Circuit Judges
Opinion OF THE COURT
KALODNER, Circuit Judge.
These cross-appeals are from the "Supplemental Order" of the three-judge District Court*fn1 which adjudged unconstitutional Regulations and/or Procedures ("Procedures") of the Pennsylvania Medical Assistance Program ("PMAP") insofar as they pertain to reimbursement to welfare recipients for abortions performed within the first trimester of pregnancy, but denied declaratory relief as to abortions performed during the second trimester of pregnancy, and an application for injunctive relief.
The "Supplemental Order" was entered pursuant to the District Court's opinion*fn2 which held that the Procedures violate the equal protection clause of the Fourteenth Amendment in that their limitation of coverage to "medically indicated" abortions "is a limitation which promotes no valid State interest."*fn3 The opinion further held that the Procedures did not conflict with the requirements of Title XIX of the Social Security Act, 42 U.S.C.A. § 1396 et seq.
The defendant-representatives of the Commonwealth of Pennsylvania have appealed the District Court's "Supplemental Order" and the plaintiff-welfare recipients have appealed from the denial of declaratory relief as to abortions performed during the second trimester of pregnancy.
The District Court's dispositions were made in an action filed by the plaintiff-welfare recipients and participants in the PMAP challenging the Procedures which provide that abortions may be performed under the PMAP only in the following situations:
"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." 376 F. Supp. at 175.
The "Supplemental Order" of the District Court was entered May 28, 1974, and these cross-appeals were argued to this Court on October 28, 1974.
It now appears that on September 18, 1974, the Attorney General of Pennsylvania filed a Stipulation in a pending independent action which declares that the Procedures here involved "have not been applied... when litigation is threatened," since July 8, 1974.
The Stipulation was filed in Doe v. Wohlgemuth, Civil Action No. 73-1564, United States District Court for the Eastern District of Pennsylvania,*fn4 where welfare recipients have presented challenges raised in the instant case with respect to the Procedures and applied for declaratory and injunctive relief.
The Stipulation provides in relevant part as follows:
"In response to this Court's Order of July 19, 1974, the parties to this action hereby stipulate as follows:
"(1) The policy and practice challenged in this action is presently being applied on a uniform statewide basis except as appears in paragraph (2) below.
"(2) a) From on or about July 8, 1974, Defendants' Medicaid abortion policies have not been applied in any county in Pennsylvania when litigation is threatened by any eligible person seeking an abortion and it appears to Defendants' counsel that a failure to reimburse for that abortion would result in repetitious litigation that would end in a court order granting preliminary relief against the Commonwealth...." (emphasis supplied).
The inescapable import of the Stipulation of which we take judicial notice,*fn5 is that the Procedures are enforced only against welfare recipients who do not threaten suit.
The sum total of the existing situation with respect to the Procedures is that they are enforced as to some welfare recipients and denied as to others.
Standing alone, and independently so, the stated circumstances constitute violation of the equal protection clause of the Fourteenth Amendment. That being so, we do not reach the holding of the court below that the Procedures per se violate the Fourteenth Amendment. Assuming arguendo, that the Procedures are constitutional and consistent with the Social Security Act, it is long settled that State administrative procedures which are per se valid and constitutional may nevertheless be enjoined when they are unconstitutionally applied. Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886).*fn6
For the reasons stated, the "Supplemental Order" of the District Court will be vacated and the cause remanded to the District Court with directions to enter an order enjoining enforcement of the Pennsylvania abortion Procedures in accordance with this opinion.
VAN DUSEN, Circuit Judge, concurring:
While I join in the judgment of the court and in Judge Kalodner's opinion, I also agree with the district court majority opinion that the Procedures violate the Constitution for the reasons stated in that opinion. See Doe v. Wohlgemuth, 376 F. Supp. 173, 190-92 (W.D. Pa. 1974).