For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman and Schreiber and Judges Conford and Carton. For reversal -- None. Pashman, J., concurring. Pashman, J., concurring in the result.
The issue in this case concerns the attempt of the plaintiff, Planned Parenthood of New York City, Inc., to obtain reimbursement from the Division of Medical Assistance and Health Services of the Department of Institutions and Agencies (now Department of Human Services) for costs of abortions performed in New York on 550 residents of New Jersey. The abortions occurred prior to January 22, 1973, the date when the United States Supreme Court declared a woman's right to have an abortion in the first trimester of pregnancy to be of a federal constitutional dimension. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, reh. den. 410 U.S. 959, 93 S. Ct. 1409, 35 L. Ed. 2d 694 (1973); Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201, reh. den. 410 U.S. 959, 93 S. Ct. 1410, 35 L. Ed. 2d 694 (1973).
The Director of the Division of Medical Assistance and Health Services denied the plaintiff's application. On appeal
the Appellate Division affirmed. 138 N.J. Super. 450 (1976). We granted certification. 71 N.J. 329 (1976).
The plaintiff advances a fourfold argument. First, it contends that the principle of Roe v. Wade, supra, and Doe v. Bolton, supra, should be applied retroactively so that the plaintiff should be entitled to reimbursement for the costs of abortions performed before January 22, 1973. Second, the abortions would not have been illegal if performed in New Jersey before the Roe and Doe decisions and are accordingly reimbursable under the terms of the State plan for medicaid even if performed outside New Jersey. Third, federal statutes and regulations require reimbursement. Last, denial of reimbursement violates the equal protection clause of the Fourteenth Amendment to the United States Constitution.
The Appellate Division, after carefully considering all pertinent factors, rejected the claim that Roe v. Wade and Doe v. Bolton were entitled to retroactive application. 138 N.J. Super. at 454-456. We agree with that finding essentially for the reasons stated by the Appellate Division.
We disagree with plaintiff's claim that prior to January 22, 1973 non-therapeutic abortions were lawful in New Jersey. Before that date, as plaintiff concedes in its Appellate Division brief, non-therapeutic abortions "were considered to be illegal." At that time the only abortions held lawful by the New Jersey courts were those performed to preserve a woman's life. State v. Moretti, 52 N.J. 182, 191, cert. den. 393 U.S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 (1968); Gleitman v. Cosgrove, 49 N.J. 22 (1967). The plaintiff's reliance upon Young Women's Christian Ass'n of Princeton v. Kugler, 342 F. Supp. 1048 (D.N.J. 1972), motion for stay denied, 463 F.2d 203 (3d Cir. 1973), vacated and remanded 475 F.2d 1398 (3d Cir. 1973), judgment reinstated, Civil No. 264-70 (D.N.J. July 24, 1973), aff'd 493 F.2d 1402 (3d Cir. 1974), cert. den. 415 U.S. 989, 94 S. Ct. 1587, 39 L. Ed. 2d 885 (1974), is misplaced. In that case, the United States District Court's final effective judgment declaring nine physicians free from criminal
responsibility under the abortion statute, N.J.S.A. 2A:87-1, was not forthcoming until July 24, 1973, some six months after Roe and Doe were decided. In passing we also note that we were not bound by a lower federal court's decision invalidating the New Jersey abortion statute. State v. Norflett, 67 N.J. 268, 286 (1975). Accordingly, under the law then existing, non-therapeutic abortions would have been illegal in New Jersey prior to January 22, 1973.
The plaintiff's third contention that Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 et seq., and regulations promulgated thereunder mandate reimbursement is misguided. Under Title XIX "a State plan for medical assistance must . . . provide for inclusion, to the extent required by regulations prescribed by the Secretary, of provisions (conforming to such regulations) with respect to the furnishing of medical assistance under the plan to individuals who are residents of the State but are absent therefrom." 42 U.S.C. § 1396a(a)(16). The federal regulations promulgated pursuant to the act provide that "[m]edical assistance will be furnished to eligible individuals who are residents of the State but are absent therefrom to the same extent that such assistance is furnished under the plan to meet the cost of medical care and services rendered to eligible individuals in such State. . . ." 45 C.F.R. § 248.40(a)(1). Admittedly, the New Jersey plan did not furnish such abortion services. To sanction payments for abortions rendered outside the State would evade the intent and purpose of the New Jersey plan not to pay for abortions. The plaintiff has directed our attention to another section of the same regulation which requires that medical care and services be included in the plan when it is the "general practice for residents of a particular locality to use medical resources outside the State," 40 C.F.R. § 248.40(a)(2)(i). This provision, however, becomes effective only if the plan provides for such care and services within the State. Any other result would be inconsistent with the Social Security Act, particularly 42 U.S.C. § 1396a(a)(1) which requires
that the medical assistance plan "be in effect in all political subdivisions of the State. . . ." If a state provided certain medical assistance to eligible residents who happened to have access to medical facilities and services outside the state, and not to those who did not have such access, the substance of the plan would be governed by the geographical convenience of the medicaid recipient contrary to the spirit of the statewide criteria of 42 U.S.C. § 1396a(a)(1).*fn1
The plaintiff's last argument is addressed to the equal protection clause of the Fourteenth Amendment. Plaintiff asserts that because New Jersey medicaid recipients in 1972 could go to term in either New York or New Jersey and have their medical expenses reimbursed, equal treatment must be accorded to those medicaid recipients who elected to end their pregnancies. Passing the question of the plaintiff's standing as a creditor to raise the constitutional claim of its patients, we note that the United States Supreme Court has recently rejected the rationale advanced by the plaintiff. Maher v. Roe, U.S. , 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977). The Supreme Court held that financial need alone is not a criterion of a suspect classification and that differentiating between state financial assistance for non-therapeutic abortions and for childbirth is rationally related to the proper purpose of "encouraging normal childbirth." Beal v. Doe, U.S. at , 97 S. Ct. 2366 at 2372,
53 L. Ed. 2d 464 at 473 (1977). The plaintiff's claim based on the equal protection clause of the Fourteenth ...