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DOE v. MATHEWS

October 1, 1976

Jane DOE, Individually and on behalf of all others similarly situated, et al.
v.
F. David MATHEWS, Secretary, United States Department of Health, Education and Welfare



The opinion of the court was delivered by: BIUNNO

 This case is before the court on an application for an order to show cause, with temporary restraint, why the defendant Mathews (Secretary of the U.S. Department of Health, Education and Welfare, HEW), should not be enjoined pendente lite from enforcing the so-called "Hyde Amendment", a provision of the Appropriations Act for the Department of Labor and HEW. That act, embodying the Hyde Amendment, evidently became law on September 30, 1976 by virtue of the vote, in both Houses of Congress (67 to 15 in the Senate, and 312 to 93 in the House) to override a presidential veto of the bill, see U.S.Const., Art. I, § 7, cl. 2, requiring a two-thirds vote for that purpose.

 The law involved is an appropriations law, for the two departments mentioned, covering the new fiscal year October 1, 1976 through September 30, 1977. The portion of that law which is challenged, the Hyde Amendment, is a single sentence which reads:

 
"None of the funds contained in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term."

 Taken literally, the language may be said to be inapt, and so requires construction. No funds are "contained" in any Act; funds are contained only in the Treasury. None are funds "used" to "perform" abortions; instruments, medications or other means may be used to "perform" abortions and funds are pertinent only to the extent that they are payment for the application of those means. In all that follows, the sense and meaning of the challenged sentence will be taken as the equivalent of saying that:

 
"No appropriation made by this Act is authorized by law to be paid for performing abortions, except where the abortion is medically indicated to avoid endangering the life of the mother if the fetus were carried to term."

 On behalf of these 3 sets of plaintiffs, a total of 7 causes of action are set out in the complaint. These subdivide as follows:

 For the plaintiff Jane Doe, the First, Second, Third, Fourth and Seventh causes of action assert that the restriction of the Hyde Amendment creates an invidious discrimination (as between one who can afford elective abortions without Medicaid and one who cannot); deprives her of the right to control her own person as well as of the rights of privacy and liberty in matters relating to marriage, sex, procreation and the family; coerces her (in future) to be irreversibly sterilized rather than risk a pregnancy that cannot be aborted; and constitutes an establishment of religion. These effects are claimed to violate the First, Fourth, Fifth and Ninth Amendments.

 For the plaintiff physicians, the Fifth Cause of Action asserts that pregnant women consult them, and for many of such women they would, "in the exercise of their best professional judgment, concur in the women's decisions" to have an abortion performed and would so perform. The Hyde Amendment, as to physicians, is said to deprive them of their "right to practice medicine in accordance with their best medical judgment"; would deprive them of their right to give (and their patients to receive) "appropriate and adequate medical treatment and advice" relating to whether to terminate a given pregnancy; and would deprive them of their right to receive substantial income from abortion services rendered to Medicaid patients in violation of their right to receive fees for such services. These effects are said to violate the First, Fourth, Fifth and Ninth Amendments.

 For the plaintiff PPHC, the Sixth Cause of Action says that denial of reimbursement for abortions for Medicaid patients would prevent it from continuing its program for such services and deprive it from receiving fees therefor. This is said to violate the Fifth Amendment.

 OUTLINE OF THE MEDICAID PROGRAM

 The complaint, the moving papers and the brief for plaintiffs focus on the challenges to the Hyde Amendment, with scant discussion of the structure and working of the Medicaid laws. Yet, to provide perspective to the claims made, some basic context of the law within which the particular and detailed conflict occurs is essential. What follows is the court's general understanding of that basic context.

 The Medicaid law was passed in 1965 as a supplement (Title XIX) to the Social Security Act, 42 U.S.C. § 1396a. This enabling legislation contemplates a program under which the States may enact Medicaid statutes and adopt plans to pay for various kinds of health services (i.e., medical, hospital, dental, pharmaceutical, prosthetic, optometric, etc.), part of the cost of which is reimbursable to the States by the federal government.

 No State is obliged to enact a Medicaid law or plan. If it does, it must at least enact a law to pay for Medicaid services to all persons eligible for welfare (categorical aid), the eligible services to meet a specified minimum enumeration. If a State enacts no Medicaid law, or enacts one not meeting the minimum Title XIX requirements, it is potentially not eligible for reimbursement of any of the costs of its own program.

 A State may also elect to enact an expanded Medicaid law to provide payment for health services not only to benefit those eligible for welfare benefits, but also to others, not so eligible, who are medically indigent or needy; i.e., their income is too high to qualify for welfare benefits, but is not high enough to be able to meet some kinds of health expenses. The kinds of services which a State may choose to pay for if it covers the medically needy is more flexible than those to be provided for those eligible for welfare benefits.

 Obviously, the structure of the Medicaid program is one that is more limited than the kinds of publicly financed health programs that have been enacted in England and the Scandanavian countries, for example. Also, it is a program designed to stimulate the States, rather than the federal government, to adopt health care programs. The stimulus is the "carrot" of partial federal refunding. States might hesitate to enact a health services law by themselves in view of the potentially enormous cost, and the difficulty of administering and controlling problems of eligibility, utilization and the like. The receipt of a federal share to help meet the direct and administrative costs has induced some States to enact Medicaid laws. New Jersey is one of them, P.L.1968, c. 413, N.J.S.A. 30:4D-1 et seq.

 Unlike the privately developed and operated health plans, such as the well-known Blue Cross/Blue Shield programs, the Medicaid program makes no general attempt to sign up in advance "providers" of services who agree to accept stipulated amounts or rates for stipulated services. The arrangement, rather, is more akin to indemnity health insurance, where the amount paid by the carrier is stipulated according to some standard or schedule (which is actuarially reflected in the premium), leaving it to the insured to find a provider of the services.

 Such a system necessarily requires that a State which enacts a Medicaid law set up some rather sophisticated administrative machinery. The program involves the expenditure of public funds obtained from taxpayers at both State and national levels. The funds paid out may only be paid for the benefit of those who are eligible, for services that are authorized and in fact rendered, and in amounts that are proper. Some Medicaid programs are administered by the State with public employees. Others have contracted for administration with private carriers who are experienced and equipped to handle the work as an adjunct to their own highly similar work or to other contracted services for related programs such as Medicare.

 In any event, an applicant for benefits is first found eligible by some designated agency of the State, is enrolled, and is issued some kind of identification card. When services are needed, the enrolled person seeks out a provider willing to accept the authorized Medicaid amount as full payment for the service, and receives the service. The provider then bills the State, through some administrator who reviews the claim and if found proper, pays it on behalf of the State. In turn, the State takes the data on paid claims to HEW as a basis for claiming reimbursement of the federal share.

 At this writing, the court has not had furnished to it a copy of the law enacted by Congress, one part of which is challenged. It has been told that the Statute involved is the appropriations law for the new fiscal year October 1, 1976 through September 30, 1977, to which the Hyde Amendment was added as a "rider", it is said. The materials submitted do not reflect the legislative history. One reference indicates that the amendment became § 209 of "H.R. 14232." Another reference is to a Conference Committee Report on "H.R. 14323, attached hereto as Appendix A", but which is not attached at all.

 Whether the Hyde Amendment is a "rider" (a term usually describing a provision of law unrelated or not germane to the bill to which it is attached) or a floor amendment, is by no means clear. In any event, whatever the legislative mechanism was, the challenged provision is claimed to have been passed by both Houses of the Congress, sent to the President who vetoed the entire bill, and enacted into law by a two-thirds vote of both Houses of Congress. The Constitution of the United States does not require the Congress to limit each Bill to one object, or to state that object in its title. It does not extend to the President the authority to veto one or more items in an appropriations law, or to the Congress the authority to override the veto of one or more of such items. It does not authorize the mechanism of the conditional veto. *fn1" A bill either becomes law, as a whole, or it is no law at all.

 What is significant about this analysis is that if it be true that the Hyde Amendment is part of the appropriations act for fiscal 1977, it is not an amendment of any part of Title XIX of the Social ...


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