APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 78-2214)
Before Hunter, Weis and Garth, Circuit Judges.
This appeal calls upon us once again to deal with the difficult and controversial subject of abortion.*fn1 We are asked to decide whether two Pennsylvania statutes*fn2 contravene the requirements of Title XIX of the Social Security Act*fn3 the federal Medicaid law inasmuch as the Pennsylvania enactments restrict state funding of "medically necessary" abortions. In addition, we must determine whether Congress, in enacting the so-called "Hyde Amendments" to several recent federal appropriations bills,*fn4 effected substantive changes in the Medicaid law.
We conclude that the Hyde Amendment modifies Title XIX and thereby reduces the states', and hence Pennsylvania's, substantive obligations, but we find the Pennsylvania statutes to be at variance with even this lesser standard. As a reviewing court, we deem it inappropriate to redraft the Pennsylvania statutes so as to make them comply with federal law. Accordingly, having reached the same conclusion as the district court, albeit by a somewhat different approach, we affirm the district court's order which enjoined the operation of Pennsylvania Public Laws 16A and 148 in their entireties.*fn5
In 1978 the Pennsylvania legislature enacted appropriation and substantive legislation which, in substantially identical terms, prohibited the Commonwealth from "pay(ing) for, mak(ing) reimbursement for, or otherwise . . . support(ing) 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."*fn6 (emphasis added). Plaintiffs, who include pregnant women eligible for Medicaid who are in need of therapeutic abortions, doctors who perform abortions, and health care agencies which provide abortion services, filed this class action under 42 U.S.C. § 1983 challenging the Pennsylvania laws on both statutory and constitutional grounds. They sought to enjoin the defendants, the Treasurer of the Commonwealth and the Secretary of the Department of Public Welfare, from refusing to fund medically necessary abortions for women whose pregnancies were not life endangering. In addition, they sought a declaration that the statutes were invalid.
The district court granted class certification and held that the plaintiffs had standing to bring the claims which they asserted.*fn7 With respect to the merits of the plaintiffs' complaint, the district court held that Title XIX:
requires participating states to provide all medically necessary services, including medically necessary abortions, to eligible participants of the program, and that Public Acts 16A and 148, by limiting Medicaid reimbursement to those abortions necessary to save the life of the mother, arbitrarily discriminate against medically necessary abortions on the basis of the diagnosis, type of illness or condition involved, in violation of the objective and requirements of Title XIX and its implementing regulations.
Roe v. Casey, 464 F. Supp. 487, 499-500 (E.D.Pa.1978). The district court did not reach the question of whether the Hyde Amendment modified or amended Title XIX. Rather, it held that because the Pennsylvania statutes were even more restrictive than the Hyde Amendment, they would be invalid even under a modified Title XIX. Therefore, based upon its interpretation of Title XIX, without reference to the Hyde Amendment, the district court entered an order enjoining the operation of the Pennsylvania statutes. Because it disposed of the case entirely on statutory grounds, the district court properly did not address the plaintiffs' constitutional claims.
The district court read Title XIX to require that Pennsylvania must fund all abortions which are "medically necessary." The court relied upon the language of the statute which provides appropriations to enable each state "as far as practicable to furnish . . . medical assistance on behalf of individuals, whose income and resources are insufficient to meet the costs of necessary medical services." 42 U.S.C. § 1396. The district court took note of the fact that standard abortion procedures "involve most, if not all" of the types or classes of services which are to be furnished to the categorically needy.*fn8
The Courts of Appeals for the First and Seventh Circuits, when confronted with similar abortion funding issues, read Title XIX more narrowly than did the district court here. Preterm, Inc. v. Dukakis, 591 F.2d 121, 124-26 (1st Cir.), cert. denied, 441 U.S. 952, 99 S. Ct. 2182, 60 L. Ed. 2d 1057 (1979); Zbaraz v. Quern, 596 F.2d 196, 198-99 (7th Cir. 1979).*fn9 Both of those courts observed that the clause contained in the statute "necessary medical services" is limited to describing the beneficiaries of Title XIX i. e. individuals "whose income and resources are insufficient to meet the costs of necessary medical services." 42 U.S.C. § 1396. Neither the First nor the Seventh Circuit was willing to interpret this language, which imports identification, as language imposing a substantive requirement on the states.
If we were obliged to resolve this difference in interpretation, we would favor the narrower approach taken by the First and Seventh Circuits. But unlike those courts we do not find it essential to resolve this question of statutory meaning in order to decide this case. If indeed the Hyde Amendment constitutes a substantive change to Title XIX, we should focus on the "amended" Title XIX. Any other analysis of the original and unamended Title XIX, as it pertains to abortion, would then become unnecessary.
Thus, before addressing the scope of Title XIX generally, we turn to a consideration of the Hyde Amendment and whether that enactment has substantively amended Title XIX so as to specify and limit the abortions which may be funded under Medicaid.
In each of the past four years, Congress has passed the so-called "Hyde Amendment" as a rider to the federal appropriations legislation.*fn10 The version of the 1979 Hyde Amendment currently in effect for fiscal year 1980 provides as follows:*fn11
Sec. 109. Notwithstanding any other provision of this joint resolution except section 102, none of the funds provided by this joint resolution shall be used to perform abortions except where 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 has been reported promptly to a law enforcement agency or public health service;
Nor are payments prohibited for drugs or devices to prevent implantation of the fertilized ovum, or for medical procedures necessary for the termination of an ectopic pregnancy.
Our task is to determine whether the Hyde Amendment should be construed as an amendment to Title XIX. In that event, the Amendment would implicitly repeal a portion of that Title, thereby reducing the states' obligations to fund abortions to only those specified by the Amendment.
The Appellees, in seeking our affirmance of the district court, and Judge Hunter in his concurring opinion, argue that the Hyde Amendment has no substantive effect on Title XIX. They assert that the plain language of the Hyde Amendment "none of the funds provided by this joint resolution shall be used to perform abortions except . . ." limits the impact of the provision solely to the use of federal funds. Thus, the Amendment, according to Appellees, would have no impact on the states' obligations, to provide abortion services under Medicaid. They contend that we should not look behind this plain language in order to find any change with respect to the states' obligations to make expenditures under the Medicaid Act. In addition, they argue that established canons of statutory construction counsel against finding that a substantive statute has been repealed by an appropriations act. Similar arguments were rejected by the First Circuit in Preterm, Inc. v. Dukakis, supra, by the Seventh Circuit in Zbaraz v. Quern, supra, and by the Eighth Circuit in Hodgson v. Board of County Commissioners, supra.*fn12 We agree with the First, Seventh and Eighth Circuits that the Hyde Amendment does indeed modify Title XIX, and is not to be construed as a mere withholding of federal funds.
The construction urged by Appellees leads to a result which is not consonant with the policies of the Medicaid Act. Title XIX is based upon a scheme of "cooperative federalism." The Medicaid statute envisions that the costs of medical services will be shared between the states and the federal government. See 42 U.S.C. § 1396b. If the Appellees are correct, and the Hyde Amendment only withholds federal funds and does not otherwise affect Title XIX, then the entire cost of funding Medicaid abortions would have to be borne by the states. Appellees do not point to, and we cannot find, any other Medicaid service which is, by design, entirely state funded.*fn13 Therefore, because the literal language of the Hyde Amendment, which is limited to expenditures of ...