Plaintiffs chose to file an independent suit, to which Commissioner Klein is not a party. Since the basic obligation to pay for Medicaid services is evidently a State obligation, under the pattern of the law, the failure to join Commissioner Klein leaves out an indispensible party. This litigation strategy also has the effect of attempting to compel the court to deal with a constitutional claim when the underlying right of all the plaintiffs might well be decided on statutory grounds, without reaching any constitutional issue, as it is bound by law to do if it can.
For the failure to join an indispensible party, no temporary restraining order can be granted.
THE APPROPRIATIONS LAW ASPECT
In challenging the constitutional validity of the Hyde Amendment, plaintiffs rely on the ruling in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and a group of federal decisions concluding that States that adopt Medicaid laws must pay for the cost of elective abortions, at least for those eligible for categorical aid. Some of these decisions are said to rest on constitutional grounds, while others rest on statutory construction of the Social Security Act.
One of these, Klein v. Nassau County Medical Center, 347 F. Supp. 496 (E.D.N.Y.,1973) was vacated and remanded, 412 U.S. 924-5, 93 S. Ct. 2747, 37 L. Ed. 2d 151, for reconsideration in light of Roe and Doe. The decision after remand is in 409 F. Supp. 731 (E.D.N.Y.,1976), and appeal was docketed May 27, 1976 as No. 75-1749. Another is Roe v. Norton, 408 F. Supp. 660 (D.Conn. 1975), prob. juris. noted July 6, 1976 as Maher v. Roe, 428 U.S. 908, 96 S. Ct. 3219, 49 L. Ed. 2d 1216. The third is Doe v. Beal, in this circuit, 523 F.2d 611 (CA-3, 1975), cert. granted 428 U.S. 909, 96 S. Ct. 3220, 49 L. Ed. 2d 1216 (1976). The fourth is Doe v. Poelker, 515 F.2d 541 (8th Cir. 1975), cert. granted 1976.
All of these cases, and others relied on as well, dealt with State restrictions on payment for elective abortions. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) and its companion, Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), dealt with state statutes forbidding the performance of abortions as such. The statutes of some states, such as New Jersey, were left open to a saving construction to meet the tests of Roe v. Wade. See, e.g., USA ex rel. Norflett v. Hilton, Civ. No. 75-1121 (D.N.J. 6/29/75) (not reported).
In any event, Roe and Doe did not touch the question whether a State legislature which enacts a health services law (whether under Title XIX or not) may choose not to include elective abortions among the eligible kinds of services. Even the cases which dealt with Medicaid statutes seem not to have considered the question whether the exclusion of payment for these services made the State itself ineligible for any federal share for failure to match the minimum standards of Title XIX. Such ineligibility is obviously one possible result, but the question probably was not reached in those cases, as it was not reached in Doe v. Beal, because there was no federal party brought in to raise the issue. Other adversely affected persons, under such an analysis, would also need to be made parties.
Also, none of the cases relied on deal with one obvious question raised by the challenge to the Hyde Amendment, namely, the impact of the provision, in U.S.Const., Art. I, § 9, cl. 7 that:
"No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."