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
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 ...