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decided: March 9, 1984.


Original Jurisdiction in case of Joanne Fischer et al. v. Department of Public Welfare et al.


Kathryn Kolbert, with her, Susan Cary Nicholas, Seth Kreimer and Robert F. Williams, for petitioners.

Andrew S. Gordon, Senior Deputy Attorney General, with him, Daniel R. Schuckers, Deputy Attorney General, Allen C. Warshaw, Senior Deputy Attorney General, Chief, Litigation Section, LeRoy S. Zimmerman, Attorney General, and Stanley Slipakoff, Assistant Counsel, Department of Public Welfare, for respondents.

Nadine Taub, with her, Pamela Pryor Cohen, Swenson and Cohen, for Amici Curiae of The National Women's Health Network et al.

William Bentley Ball, with him, Philip J. Murren and Sandra E. Wise, Ball & Skelly, for Amici Curiae, Dr. Dorothy Czarnecki et al.

Judge MacPhail. Memorandum Opinion by Judge MacPhail.

Author: Macphail

[ 85 Pa. Commw. Page 217]

On December 19, 1980, the Pennsylvania General Assembly amended the Public Welfare Code by adding a section*fn1 (hereinafter Act of 1980) which provided that no funds of the Commonwealth and no federal funds appropriated by the Commonwealth should be used to fund abortions unless (1) a physician certified that the life of the mother would be endangered if the fetus was carried to full term or (2) the pregnancy resulted from rape or incest when such rape or incest is reported promptly*fn2 to a law enforcement agency or public health service. The text of the Act

[ 85 Pa. Commw. Page 218]

    of 1980 followed very closely the language of the "Hyde Amendment"*fn3 which prohibited the use of any federal funds for reimbursement of the cost of abortions under the federal Medicaid program except under certain specified circumstances.

Petitioners, consisting of named individuals suing on behalf of themselves and others similarly situated, a clergy person suing on behalf of himself and all others similarly situated, a physician and several nonprofit organizations who render medical services including medically necessary abortions to the public generally and to persons receiving Medical Assistance from the Pennsylvania Department of Welfare, filed a petition for review in this Court seeking declaratory and injunctive relief which would prohibit the Respondents*fn4 (collectively hereinafter Commonwealth) from implementing the provisions of the Act of 1980. While pre-trial discovery was proceeding, Petitioners filed a petition for preliminary injunction which, after hearing, was granted by this Court. An appeal from that order was filed with our state Supreme Court which affirmed the action of this Court. Fischer v. Department of Public Welfare, 497 Pa. 267, 439 A.2d 1172 (1982).

While the instant case was proceeding through the pleading stage,*fn5 the General Assembly enacted the

[ 85 Pa. Commw. Page 219]

Abortion Control Act*fn6 (Act of 1982). That statute has been challenged and its implementation preliminarily enjoined in the federal courts.*fn7 Petitioners here amended their original petition for review to include the provisions of the Act of 1982, specifically 18 Pa. C.S. ยง 3215(c). Thereafter, a second amended petition for review was filed and, at trial, this Court permitted further amendments to that pleading.*fn8

After the disposition of other pre-trial motions including the withdrawal of Count III relating to Petitioners' alleged right of free exercise of religion and conscience under the Constitutions of the United States and Pennsylvania, the matter came on for trial. At trial, the Court was presented with 393 stipulations of fact and 11 exhibits whose authenticity was stipulated. The Commonwealth objected to the materiality of most of the stipulations, the right to do so having been specifically reserved by the parties. By pre-trial order some of those objections were sustained.*fn9 Petitioners

[ 85 Pa. Commw. Page 220]

    presented four witnesses and 15 exhibits at trial. The Commonwealth presented no evidence other than the stipulated facts, its position being that the issues to be determined were matters of law rather than those of fact. Pre-trial and post-trial briefs were received. Throughout the entire proceedings, the Chancellor has been impressed with the competence, diligence and courteousness of counsel. In a case fraught with so much emotion and deep feelings, it was refreshing to have counsel focus on the legal issues to the complete exclusion of other extraneous matters.

Findings of Fact

We find as facts all of the stipulated uncontested facts except those we refused to admit on grounds of materiality.*fn10 We deem it unnecessary to extend the length of this adjudication by reproducing those stipulations herein seriatim; rather, we will briefly summarize the salient facts required to support our conclusions of law.

Some Petitioners were indigent pregnant women financially dependent upon Medical Assistance from the Commonwealth who were not victims of rape or incest and who had been advised by their individual physicians to have abortions because should they carry the fetus to term, they would risk serious jeopardy to their health; but the physicians could not certify that an abortion was necessary to preserve the Petitioners' lives. If the pending legislation had been implemented, those persons and others similarly situated could not receive abortions funded by Medical Assistance.*fn11 Physicians, including a named Petitioner,

[ 85 Pa. Commw. Page 221]

    who provide clinical and private medical services including abortions to pregnant women, who receive Medical Assistance and who would be financially unable to pay for such abortions if the proposed legislation was implemented, would not perform medically necessary abortions for those persons. Such patients of such physicians may attempt self-induced abortions.

Several of the Petitioners are non-profit corporations who serve and educate the public in matters relating to human sexuality, birth control, population control and related subjects. These organizations also provide for medically necessary abortions to women receiving Medical Assistance, some of whom are victims of rape or incest.

The Commonwealth's Medical Assistance program by statute and regulation is designed to render medically necessary services to those who qualify. Among those medically necessary services rendered prior to the enactment of the subject legislation were necessary abortions which were carefully and specifically delineated as to necessity, timing, description of providers, manner of payment and utilization review. Certain broad categories of medical services and 24 specific medical services are not considered to be eligible for reimbursement under the Commonwealth's Medical Assistance program because such services are deemed to be medically unnecessary, e.g. experimental, cosmetic, and programs subject to fraud or abuse. Although the Department of Public Welfare (DPW) has on occasion waived these specific exemptions in the circumstances of a given case, the Commonwealth will refuse to fund abortions even where medical necessity and special need can be demonstrated. If the

[ 85 Pa. Commw. Page 222]

    proposed legislation were to be implemented, abortions would be the only generally acceptable, medically necessary surgical procedure not reimbursable under the Commonwealth's Medical Assistance program. The Commonwealth has no evidence that abortions funded by Medical Assistance are the subject of widespread fraud or abuse.

All reproductive services for males are covered by Medical Assistance; all female reproductive services except abortions would be covered by Medical Assistance if the proposed legislation were to be implemented.

The Commonwealth furnishes some medical services under its Medical Assistance program which are neither required by the federal government nor reimbursed by the federal government.

In 1981, 1982 and 1983 approximately 12,000 medically necessary abortions were obtained annually by indigent women in Pennsylvania and paid for under the Commonwealth's Medical Assistance program. It is estimated that that figure will remain constant for the year 1984 and the foreseeable future. More than five times that number of abortions were obtained in Pennsylvania by women who did not seek or qualify for Medical Assistance to fund such abortions.

The average cost for a first trimester abortion in a hospital is $322.00 plus the physician's fee, $295.00 in a physician's office and $190.00 in a clinic.

It is extremely unlikely that women eligible for Medical Assistance have purchased health insurance that will cover the cost of abortion or that they will be able to accumulate more than minimal funds for an emergency.

In 1981, 12% of the women receiving abortions in Pennsylvania were 17 years of age or younger and 29% were 19 years of age or younger. Pregnancy

[ 85 Pa. Commw. Page 223]

    among teenagers is a major public health problem with serious medical, health, educational, social, psychological and vocational implications for the mother and child. Children born to mothers age 15 and younger are 2.4 times more likely to be born with neurological defects than those born to women ages 20 to 24.

Women over the age of 35 have significantly more problems in pregnancy than women in their 20's and early 30's. A woman 40 years old is one hundred times more likely to die as a result of a pregnancy than a woman 22 years old.

The normal physical and emotional stress problems attendent in any pregnancy are more pronounced among indigent women and particularly among black indigent women. For example, black women are three times as likely to die during pregnancy as are white women.

If Medical Assistance funds are not available for medically necessary abortions in Pennsylvania, approximately 4,000 of those women who are in need of an abortion, will have no alternative other than to bear their pregnancy to term. Some of these women are likely to be afflicted with debilitating diseases prior to pregnancy and will have complications for that reason resulting from a pregnancy carried to term. In some such cases, stress will be increased to a point where suicide may be attempted.

If the proposed legislation were to be implemented, at least 98% of the abortions funded by the Medical Assistance program before February 15, 1981 and currently so funded will no longer be eligible for such funding.

If the proposed legislation were to be implemented, approximately 8,000 Medical Assistance eligible women in need of abortion services will proceed with the abortion and ...

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