[169 NJSuper Page 545] Plaintiffs challenge on statutory and constitutional grounds the guidelines for Medicaid funding for abortions which were promulgated by the State Department
of Human Services to be effective on July 1, 1979. The proposed guidelines adhere to the Hyde Amendment standards enacted by the Federal Congress (P.L. 95-480, 92 Stat. 1586, approved October 18, 1978):
The judgment in this litigation, in accordance with the court's published opinion, 165 N.J. Super. 443 (Ch. Div. 1979), provided: "That defendants * * * shall formulate written guidelines as to what abortions will be a covered service under the State of New Jersey's medicaid plan * * *."
By amended judgment the time for promulgation of new guidelines was extended to July 1, 1979. Meanwhile, guidelines which were promulgated pursuant to a preliminary injunction on July 7, 1978 have remained in effect, providing for State Medicaid funding for abortions "where the medical indications as to the necessity of an abortion for a particular woman are not insignificant and relate to the physical and/or psychological condition of the woman in question, and are not based solely on considerations of family planning, or emotional or social convenience."
The challenge to the proposed guidelines raises issues which were framed in this litigation. It is brought to effectuate a remedy, that is, to fix the terms of a supplemental final judgment. The Attorney General has consented to jurisdiction in this court, waiving any objection that review of a state administrative regulation should be in the Appellate Division (R. 2:2-3(a)(2)).
Plaintiffs advance two arguments, both mooted but not decided in the published opinion at 165 N.J. Super. 451, 458,
pending promulgation of new guidelines for State Medicaid funding for abortions.
The first argument is statutory, that is, that the Hyde Amendment controls Federal appropriations only and is not an implied repealer of the general provisions of the Medicaid Act, 42 U.S.C.A. § 1396 et seq. , which require a participating State to provide Medicaid funding for "necessary medical services," including abortions.
Plaintiffs urge, in the alternative, the constitutional invalidity of the Hyde Amendment standards. Their challenge is not to the Hyde Amendment itself*fn1 but to the state guidelines incorporating the Hyde Amendment standards, as a violation of equal protection of the law under both the Federal and State Constitutions.
Preliminarily, it is found that a substantial proportion of medically necessary abortions fall between the Hyde Amendment standards and the standards defined in the preliminary injunction in this litigation. The danger to the pregnant woman in such cases is short of "severe and long-lasting physical health damage" but greater than "insignificant" if the child is carried to term. Examples include all those with psychological health disorders and many, particularly in the initial stages of pregnancy, whose diagnosis is heart disease, diabetes, kidney disease, chronic lung disease, sickle cell anemia, drug addiction, excessive nausea with dehydration hypertension thrombophlebitis, skin cancer, gastrointestinal ulcers or ulcerative colitis. Conditions which endanger life or severe and long-lasting physical health damage in the second and third trimesters of pregnancy may not be diagnosable as such in the first trimester, when an abortion itself is less dangerous to the pregnant woman.
The statutory issue raised by plaintiffs is resolved against them in view of the holdings by two United States Courts of Appeals, the ...