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ROE v. CASEY

December 21, 1978

Jane ROE, Mary Moe and Annyce Hawkins, Individually and on behalf of all others similarly situated, John Franklin, M.D., and Louis Gerstley, III, M.D., Individually and on behalf of all others similarly situated, Planned Parenthood of Southeastern Pennsylvania, Elizabeth Blackwell Health Center for Women, Women's Health Services and Philadelphia Welfare Rights Organization, Pennsylvania not-for-profit corporations
v.
Robert E. CASEY, Individually and in his official capacity as Treasurer of the Commonwealth of Pennsylvania, and Aldo Colautti, Individually and in his official capacity as Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania



The opinion of the court was delivered by: BECHTLE

The narrow issue presented by this action for final injunctive and declaratory relief is whether recent enactments of the Pennsylvania legislature, which preclude medical assistance payments for abortions, other than those necessary to save the life of the mother, deprive the plaintiffs of their rights under Title XIX of the Social Security Act, 42 U.S.C. § 1396, Et seq. ("Social Security Act," "Medicaid," or "Title XIX"), or the First, Fourth, Ninth and Fourteenth Amendments to the Constitution of the United States. For the reasons stated below, we hold that Pennsylvania's prohibitions upon Medicaid funding for abortions other than those necessary to save the life of the mother deprive the plaintiffs of their right to receive reimbursement, pursuant to Title XIX of the Social Security Act, for medically necessary procedures, including medically necessary abortions. Because we find the plaintiffs' constitutional claims to be sufficiently substantial to confer jurisdiction upon this Court, See White v. Beal, 555 F.2d 1146, 1149 (3d Cir. 1977), and because our holding with respect to the plaintiffs' federal statutory claim is dispositive of the action before us, we do not reach the constitutional issues raised by the plaintiffs' complaint.

 The plaintiffs brought this action for injunctive and declaratory relief pursuant to Title XIX of the Social Security Act and pursuant to 42 U.S.C. § 1983 to redress the deprivation of the plaintiffs' constitutional rights to personal privacy, due process and equal protection, as guaranteed by the First, Fourth, Ninth and Fourteenth Amendments to the United States Constitution. The complaint seeks relief in the form of an Order of this Court, pursuant to 28 U.S.C. §§ 2201, 2202 and Federal Rules of Civil Procedure 57 and 65, declaring invalid and enjoining the enactment and implementation of Pennsylvania Public Acts 16A and 148, Pa. Act No. 1978-16A, May 31, 1978, P.L. -- , and Pa. Act No. 1978-148, September 26, 1978, P.L. -- , respectively, which prohibit state medical assistance payments for medically necessary abortions, other than those necessary to save the life of the mother, to women otherwise eligible to receive medical assistance pursuant to Title XIX of the Social Security Act. The named plaintiffs are Jane Roe ("Roe"), Mary Moe ("Moe"), Annyce Hawkins ("Hawkins"), John Franklin, M.D. ("Franklin"), Louis Gerstley, III, M.D. ("Gerstley"), Planned Parenthood of Southeastern Pennsylvania ("Planned Parenthood"), Elizabeth Blackwell Health Center for Women ("Elizabeth Blackwell"), Women's Health Services ("Women's Health") and Philadelphia Welfare Rights Organization ("Welfare Rights") (collectively, "health care providers"). *fn1" Plaintiffs Roe, Moe and Hawkins are each eligible for and dependent upon medical assistance and have each been certified by a physician as needing a medically necessary, but not lifesaving, abortion to preserve her health. Roe is a 23-year-old female who intended to carry her pregnancy to term but who suffers from a condition called hyperemesis gravidarum. As a result of this condition, which is complicated by pregnancy, she cannot digest food and suffers constant abdominal pain. Moe is a 13-year-old female who is pregnant and who has been certified by her physician as needing an abortion to preserve her health because her immature pelvis would cause difficult labor and probable internal damage, there would be an increased incidence of pre-eclampsia if she carried the pregnancy to term and her nutritional status would be adversely affected. Hawkins has a history of psychiatric problems and has been hospitalized because of an attempted suicide. Hawkins' psychiatrist has certified that her pregnancy has caused increased depression, that she is capable of carrying out her suicide threat and that an abortion is necessary for her health because an inability to secure an abortion would result in severe psychological damage. Roe, Moe and Hawkins bring this action on behalf of themselves and all others similarly situated. Plaintiffs Franklin and Gerstley, physicians licensed to practice medicine in the Commonwealth of Pennsylvania who specialize in the field of obstetrics and gynecology and who perform abortions for, and desire to continue performing abortions for, patients requiring them after private consultation and appropriate medical review, bring this action on behalf of themselves and all others similarly situated. Plaintiffs Planned Parenthood, Elizabeth Blackwell and Women's Health are Pennsylvania not-for-profit corporations which provide, Inter alia, obstetrical and gynecological health care, including abortions which have been certified by a physician as being medically necessary, for Medicaid-eligible patients. Plaintiff Welfare Rights is an unincorporated association with offices in Philadelphia which consists of, and is directed by, Medicaid and public assistance recipients, including those for whom abortions have been and potentially will be certified as being medically necessary. The named defendants are Robert E. Casey ("Casey"), who is sued individually and in his official capacity as Treasurer of the Commonwealth of Pennsylvania, and who is responsible for the release of Commonwealth funds to reimburse physicians and health care providers for the performance of abortion services, and Aldo Colautti ("Colautti"), who is sued individually and in his official capacity as Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania ("Public Welfare"), and who is responsible for the overall operation and administration of Public Welfare's programs and for the expenditure of sums appropriated for those programs, including medical assistance payments for abortions.

 In Count I of their complaint, the plaintiffs allege that Public Acts 16A and 148, on their face and as applied, deny reimbursement to women patients eligible to receive medical assistance for medically necessary abortions and, as such, violate their rights under 42 U.S.C. §§ 1396a(a)(13), (17), (19) and (22)(D), 42 C.F.R. § 449.10(a)(5)(i) and other implementing federal regulations and have, therefore, violated their rights under the Supremacy Clause of the United States Constitution, Article 6, Clause 2. In Counts II and III, the named women plaintiffs allege that Public Acts 16A and 148, on their face and as applied, deprive them and the class they represent of their rights under the due process and equal protection clauses of the Fourteenth Amendment, and the rights retained by them under the Ninth Amendment, respectively, to the United States Constitution. In Count IV, the plaintiffs allege that Public Acts 16A and 148, on their face and as applied, deny plaintiffs Franklin, Gerstley, the class of physicians, Planned Parenthood, Elizabeth Blackwell and Women's Rights reimbursement for necessary medical services rendered to their indigent women patients eligible for Medicaid, and interferes with their professional medical judgment as to the medically necessary and appropriate treatment of, and treatment in the best interests of, such patients and violates their rights under 42 U.S.C. § 1396, 42 C.F.R. § 449.10(a)(3)(i) and other implementing federal regulations. In Counts V and VI, plaintiffs Franklin, Gerstley and the class of physicians claim that Public Acts 16A and 148, on their face and as applied, deprive them of rights guaranteed by the equal protection and due process clauses of the Fourteenth Amendment of their rights to provide, Inter alia, appropriate and necessary medical treatment under the Ninth Amendment, respectively, to the United States Constitution. Lastly, in Count VII, Welfare Rights, by incorporation, asserts Counts I through VI on behalf of the class of women patients. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1343 and 1331, and the amount in controversy is alleged to exceed $ 10,000, exclusive of interest and costs.

 The procedural history of and facts pertinent to this Opinion are as follows: Public Act 16A, otherwise known as H.B. 2246 or the Appropriations Act of 1978, is a general appropriations act which states, in pertinent part:

 
No money shall be disbursed from this appropriation ($ 395,540,000 to the Department of Welfare for Medical Assistance) to pay for, make reimbursement for, or otherwise to support the performance of any abortion except where the abortion is certified in writing by a physician to be necessary to save the life of the mother.

 Public Act 16A, p. 38, lines 11-16. The Senate and House of Representatives of the Commonwealth of Pennsylvania signed Public Act 16A on May 23, 1978, and it was then transmitted to Milton J. Shapp, Governor of the Commonwealth of Pennsylvania ("Governor"). Pursuant to the Governor's request, the Office of the Attorney General of the Commonwealth of Pennsylvania ("Attorney General") issued an Opinion, dated May 31, 1978, which questioned the constitutionality of several provisions of Public Act 16A, including that language set out above, on the ground that the Pennsylvania Constitution did not permit substantive language to be included in an appropriations bill. On the basis of the Attorney General's Opinion, the Governor signed Public Act 16A on May 31, 1978, but line-vetoed several provisions of the bill, including that provision relating to the funding of abortions. On the same day, the Governor issued a press release stating that his Administration would ignore the substantive language contained in Public Act 16A. On June 13 and 14, 1978, respectively, the House of Representatives and the Senate of the Commonwealth of Pennsylvania overrode the Governor's line-vetoes, and Public Act 16A was slated to become effective July 1, 1978. On June 28, 1978, Casey issued a statement which declared that, beginning July 1, 1978, he would follow the mandate of Public Act 16A.

 The plaintiffs filed their original complaint on June 30, 1978, requesting injunctive and declaratory relief with respect to Public Act 16A and, at the same time, also filed a motion for a temporary restraining order and preliminary injunction, pursuant to Fed.R.Civ.P. 65. By Order dated June 30, 1978, this Court granted plaintiffs' motion for a temporary restraining order and enjoined Casey from refusing to reimburse providers of medically necessary abortions performed upon Pennsylvania Medicaid recipients solely on the basis of Public Act 16A. On July 7, 1978, a hearing was held on plaintiffs' motion for a preliminary injunction. At that hearing, testimony was heard and stipulations were entered on the record concerning, Inter alia, the defendants' positions with respect to the reimbursement from state funds for other than lifesaving abortions. In essence, Casey's position was that he would follow the provisions of Public Act 16A and Colautti's position was that he would follow the Governor's position with respect to the unconstitutionality of the substantive provisions in Public Act 16A. The temporary restraining order was then ordered continued until the submission of briefs by the parties on August 28 and September 5, 1978, respectively, and the Court's decision on plaintiffs' motion for a preliminary injunction. On July 18, 1978, a Stipulation of Facts was filed with the Court and, by Order dated July 31, 1978, we granted plaintiffs' uncontested motion for determination of this suit as a class action and certified two subclasses pursuant to Fed.R.Civ.P. 23(a), (b)(2) and (c)(4) (B). *fn2" And, on September 25, 1978, we approved the agreement of all counsel that Colautti would maintain the Status quo prior to July 1, 1978, with respect to reimbursement for Medicaid abortions, and dismissing the pending action, with prejudice and without costs, as to Colautti.

 While the plaintiffs' motions for a preliminary injunction with respect to Public Act 16A were pending, the Pennsylvania legislature, on September 26, 1978, overrode Governor Shapp's veto and enacted into law Public Act 148, otherwise known as S.B. 1254, slated to become effective immediately, which states, in pertinent part:

 
. . . no public funds shall be used to promote abortions, no abortions shall be subsidized by any State or local government agency . . . unless there is filed with such agency a certificate signed by a physician stating that the abortion is necessary in order to save the life of the mother. . . .

 Public Act 148, Section 7, lines 16-20, 1-2. On September 28, 1978, plaintiffs filed motions for a temporary restraining order with respect to Public Act 148, for leave to file supplemental pleadings and to amend class certification, pursuant to Fed.R.Civ.P. 15(d) and 65, respectively. By Order dated September 28, 1978, after a hearing on the motion, this Court granted plaintiffs' motions for a temporary restraining order against Casey and Colautti with respect to the implementation of Public Act 148, granted plaintiffs' motion for leave to file supplemental pleadings to include in the original pleadings allegations pertaining to Public Act 148 and granted plaintiffs' motion to amend class certification, with the previously certified subclasses redefined to include allegations pertaining to Public Act 148. A hearing was then held, on October 5, 1978, on plaintiffs' motion for a preliminary injunction to enjoin the defendants from enforcing either Public Act 16A or Public Act 148. The motion for preliminary injunction was then taken under advisement and the parties were permitted to file supplemental briefs. After receipt of all supplemental briefs, this Court, by Order dated October 30, 1978, consolidated the plaintiffs' motion for a preliminary injunction with the Court's final determination of the merits of plaintiffs' request for final injunctive and declaratory relief. All parties were given 15 days from the date of the October 30 Order to submit supplemental briefs on the merits to the Court. The case is presently ripe for this Court's final determination on the merits.

 Title XIX of the Social Security Act, commonly referred to as Medicaid, was enacted in 1965 for the purpose of "enabling each State, as far as practicable under the conditions in such State, to furnish," Inter alia, medical assistance on behalf of certain specified persons whose income and resources are insufficient to meet the costs of necessary medical services. 42 U.S.C. § 1396. *fn3" Medicaid is a program of "cooperative federalism" which is jointly funded by the federal government and the participating state. 42 U.S.C. § 1396a(a)(2). But while jointly financed, the Medicaid program is administered solely by the participating state, and the Department of Public Welfare of the Commonwealth of Pennsylvania is the state agency designated pursuant to § 1396a(a)(5) to administer Pennsylvania's Medicaid program. As a requirement of participating in Title XIX's program, Pennsylvania is required to administer its state plan in conformity with certain federal statutory requirements and implementing regulations. 42 U.S.C. §§ 1320c-13, 1396a. 42 U.S.C. § 1396a(a)(10)(A) *fn4" requires that a qualifying state Medicaid program must reimburse persons eligible to receive Medicaid under the federal categorical assistance program for certain medical services (the "categorically needy"). The medical services which must be provided to the categorically needy by the state are at least the first five of the sixteen types of services delineated in § 1396d(a), *fn5" which are: inpatient hospital services, outpatient hospital services, other laboratory and X-ray services, skilled nursing facility services and physicians' services. 42 U.S.C. § 1396a(a)(13)(B). *fn6" In addition to mandatorily providing those five types of services to the categorically needy, a participating state has the option of expanding its program to include reimbursement to those who demonstrate a need for medical assistance and who meet the categorical requirements of Title XIX but whose incomes are too high to allow them to qualify for the categorical assistance programs (the "medically needy"). 42 U.S.C. § 1396a(a)(10)(C). If a state opts to include the medically needy in its Medicaid program, it must provide the medically needy with at least the level of services it provides to the categorically needy, as described in clauses (1) through (5) of § 1396d, or it must provide to the medically needy the types of services listed in any seven of the clauses numbered (1) through (16) of § 1396d. 42 U.S.C. § 1396a(a)(13)(C)(i), (ii). Pennsylvania has chosen to provide medical assistance to both the categorically needy and the medically needy and to provide the medically needy with all of the services that Title XIX requires a state to provide to the categorically needy, I. e., inpatient hospital services, outpatient hospital services, other laboratory and X-ray services, skilled nursing facility services and physicians' services. 62 P.S. § 443.1, Et seq.; Stipulation P 26.

 Title XIX does not specify the exact types of services within the broad categories enumerated in § 1396d which must be made available by a state to the categorically needy or to the medically needy. In fact, nowhere does Title XIX list a specific medical service, treatment or procedure. Title XIX does, however, provide that the medical assistance made available to either a categorically needy or medically needy person shall not be less in amount, duration or scope than the medical assistance made available to any other person in that particular category. 42 U.S.C. §§ 1396a(a)(10)(B)(i), (ii) and (C)(ii). Title XIX also requires that a participating state include reasonable standards in its program for determining eligibility for, and the extent of, the medical services to be provided under the plan which, Inter alia, are consistent with the objectives of the subchapter. 42 U.S.C. § 1396a(a)(17). *fn7"

 Title XIX's implementing regulations basically reiterate this statutory scheme and clarify the obligations which a participating state must meet in providing services to the categorically and medically needy persons found eligible to participate in its Medicaid programs. 42 C.F.R. § 446.151, Et seq. The implementing regulations, like Title XIX, do not specify the type or extent of medical treatment or procedures which a state must provide. The regulations do, however, require that a participating state must specify the amount and/or duration of each item of medical care that will be provided and that such items must be sufficient in amount, duration and scope to reasonably achieve their purpose. 42 C.F.R. § 449.10(a)(5)(i). *fn8" This regulation further states that a state may not arbitrarily deny or reduce the amount, duration or scope of medical assistance solely because of the diagnosis, type of illness or condition. Id. The regulations also reiterate the requirements of § 1396d that ...


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