New Jersey and United States Constitutions.
In June 1983, plaintiffs filed an Amended and Supplemental Class Action Complaint following the consolidation by this court of various pro se civil actions by the inmates at MCCI. Plaintiffs challenged the overcrowding and various other conditions at the institution. Thereafter, this court issued an order granting constitutionally-mandated relief from the overcrowding and directed that other corrective measures be implemented.
In January 1985, plaintiffs applied for an Order to Show Cause, seeking preliminary injunctive relief from systemic deficiencies in meeting the general health care needs of pregnant inmates. The parties subsequently entered into a consent judgment which provided for whatever immediate relief was "necessary to protect the health of the female inmates." Unable to obtain any services through MCCI which were related to the termination of inmate pregnancies, plaintiffs, in April of this year, applied again for an Order to Show Cause with temporary restraints and requested that county defendants be required to provide all necessary medical care, including counseling, access to, and funding for abortions to Jane Doe, a pregnant inmate and member of the class, and all other class members. Following the release of Jane Doe, the class representative,
this court denied plaintiffs' application for temporary restraints and set a date for the preliminary injunctive hearing.
III. Findings of Fact
The facts are undisputed. At the time plaintiffs filed the instant petition, Jane Doe was approximately nine weeks pregnant. See Affidavit of Jane Doe, Apr. 15, 1986. Prior to the hearing on plaintiff's application it was learned that another inmate, Mary Smith, was seeking counselling and an abortion. See Affidavit of Mary Smith, May 19, 1986. Both inmates had been denied access to and funding for an abortion by the MCCI officials pursuant to the institution's policy of providing an abortion only in a medical emergency which constitutes a life-threatening situation for the mother. The institution's policy also requires that pregnant inmates in non-life-threatening situations apply to the court for an order releasing them on their own recognizance in order to arrange personally for their abortions. For those inmates incarcerated on extremely serious charges and for whom no release is possible, there is no alternative but to carry to term. By contrast, all pregnant inmates who elect to carry to term are provided with complete prenatal care, including testing, treatment and delivery at an outside clinic.
Plaintiffs challenge MCCI's policy of requiring pregnant inmates who desire an abortion to apply for a court-ordered release as an unconstitutional infringement upon their right to privacy, as set forth in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and its progeny. They contend that defendants' refusal to provide pregnant inmates with all necessary medical care related to their pregnancies constitutes deliberate indifference to plaintiffs' medical needs and, thus, deprives them of equal protection of the laws in violation of both the Eighth and Fourteenth Amendments to the federal Constitution, respectively. Plaintiffs also allege that defendants' discriminatory policies unconstitutionally infringe upon their rights and privileges under the New Jersey Constitution.
In support of its policies, the county asserts its statutory obligation under N.J.Admin.Code tit. 10A § 31-3.15(a) (1979), which merely requires the county to provide "essential" medical care to the inmates.
The county contends that the provision of abortions, and other "purely elective medical procedures", would pose an insurmountable administrative and financial burden on the county. They also attempt to justify and attribute the limitations placed upon the inmates' rights and privileges to the very fact of their lawful incarceration, which allegedly necessitates such limitations.
IV. Legal Findings
A. Jurisdiction and the Applicable Law
Plaintiffs allege violations of their rights and privileges under both the New Jersey and United States Constitutions. Their claims, therefore, are of both a state and federal nature. This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (1982), which gives district courts jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Since the federal and state constitutional claims derive from a common nucleus of operative fact, and since the court has jurisdiction over the parties, and the federal claims asserted by plaintiffs are substantial, the pendent state law claims are properly before the court. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966).
State law is applied by federal courts in three situations: (1) when they are so required by Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), (2) when they are so directed by a federal statute, or (3) as a matter of discretion in their exercise of power to so choose. 19 Wright, Miller & Cooper, Jurisdiction § 4515 (1976). The Erie doctrine applies in federal question as well as diversity cases. As the Second Circuit explained in Maternally Yours v. Your Maternity Shop, 234 F.2d 538, 540 n. 1 (2d Cir.1956):
It is the source of the right sued upon, and not the ground on which federal jurisdiction over the case is founded, which determines the governing law. . . . Thus, the Erie doctrine applies, whatever the ground for federal jurisdiction, to any issue or claim which has its source in state law. . . . Likewise, the Erie doctrine is inapplicable to claims or issues created and governed by federal law, even if the jurisdiction of the federal court rests on diversity of citizenship.
Thus, this court will apply state and federal law, respectively, to the state and federal claims herein. As stated in the Rules of Decision Act, 28 U.S.C.A. § 1652 (1982): "The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States. . . ."
Unfortunately, my research discloses no New Jersey or federal caselaw which addresses the right of pregnant inmates in a county jail to public funds for abortions. In deciding the state law claims, this court must make an informed prediction as to the probable ruling by the New Jersey Supreme Court if it were confronted with the same case. W. A. Wright v. KDI Sylvan Pools, 746 F.2d 215 (3d Cir.1984) (citing Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir.1981)); see also Becker v. Interstate Properties, 569 F.2d 1203, 1205 (3d Cir.1977) and cases cited therein. In so doing, this court will take account of the doctrinal trends of the law of New Jersey as well as the underlying policies of the State and rule accordingly, as mandated by the Third Circuit in Becker. Id. at 1206.
B. Preliminary Injunction
It is well settled that in analyzing a plaintiff's application for preliminary injunctive relief, a court must consider four factors. In Pilgrim Medical Group v. N.J. State Board of Medical Examiners, 613 F. Supp. 837, 845 (D.N.J.1985), the district court of New Jersey enumerated them as follows:
"(1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of such relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party and (4) whether granting preliminary relief will be in the public interest."
See also SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244, 1254 (3d Cir.1985), (citing Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955, 958-59 (3d Cir.1984)); Continental Group v. Amoco Chemicals Corp., 614 F.2d 351, 356-57 (3d Cir.1980). Considering the parties' respective positions in light of the above-mentioned guidelines, and for the reasons set forth below, this court finds that plaintiffs are entitled to the injunctive relief sought.
1. Likelihood of success on the merits
As stated above, plaintiffs must demonstrate the likelihood, not the certainty, of success on the merits in order to prevail. See Bergen Drug Co. v. Parke, Davis and Co., 307 F.2d 725, 727 (3d Cir.1962); see also Fitzgerald v. Mountain Laurel Racing, Inc., 464 F. Supp. 263, 269 (W.D.Pa.1979). With respect to the challenged court-ordered release requirement imposed upon pregnant inmates by MCCI, plaintiffs have clearly established the probability of ultimately prevailing on the merits. In Roe v. Wade, the United States Supreme Court set forth guidelines delineating the extent to which government may interfere with a woman's right to terminate her pregnancy. During the first trimester, the state has no role in the abortion decision, which is completely in the hands of the woman and her attending physician. 410 U.S. at 164, 93 S. Ct. at 732. During the second trimester, the state may "regulate the abortion procedure in ways that are reasonably related to maternal health." Id. In the third trimester, the state may "regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Id. at 164-65, 93 S. Ct. at 732-33. Pertinent here is the Court's reference to the well-established rule that where certain fundamental rights are involved, regulations limiting these rights may be justified only by a "compelling state interest." Id. at 155, 93 S. Ct. at 727. In City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983), the Court, applying the same test of constitutionality to invalidate a second trimester hospitalization and twenty-four hour waiting period requirement, held that any statute, other than a governmental spending statute, which adds cost and delay to the abortion procedure will not be upheld if it imposes any significant impact on the right to abortion, unless justified by a compelling state interest.
Plaintiffs argue that the court order requirement will significantly delay an inmate's ability to exercise her right to terminate her pregnancy. They point to the substantial amount of time required to contact the public defender or private attorney and the inevitable additional delays involved thereafter. They contend that those women who are unable to secure a court-ordered release because of the gravity of the offense of which they are convicted are effectively totally deprived of their right to choose an abortion.
Defendants offer no justification for this infringement on the inmates' fundamental right, let alone a compelling state interest. Following Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1973), the Third Circuit in O'Malley v. Brierley, 477 F.2d 785 (3d Cir.1973), mandated that the means employed to achieve the state goal must be "the least possible regulation of the constitutional right consistent with the maintenance of prison discipline." 477 F.2d at 796. Even presuming, the compelling state interest supporting the county policy is internal security and the public safety, the county's requirement is not the least restrictive means consistent with the maintenance of prison discipline. The county policy does not require inmates who choose to carry to term or those who need outside medical care to obtain a court-ordered release. All other things being equal, inmates who wish to have an abortion pose no greater security risk than any other inmate who requires outside medical attention. As the Third Circuit recently held in Shabazz v. O'Lone, 782 F.2d 416, 420 (3d Cir.1986), "the state must show that the challenged regulations were intended to serve, and do serve, the important penological goal of security, and that no reasonable method exists by which appellants' . . . [constitutional] rights can be accommodated without creating bona fide security problems."
Applying these constitutional precepts, I find that the county regulation requiring pregnant inmates to obtain a court-ordered release unquestionably has a "significant impact" upon and impermissibly burdens a woman's right to choose abortion. It is, therefore, unconstitutional under the United States Constitution.
In so holding, it should be noted that the same result would obtain if the state law of New Jersey were to be applied. In Farhi v. Deal Borough Commissioners, 204 N.J.Super. 575, 499 A.2d 559 (Law Div.1985), a municipal zoning ordinance was held to unconstitutionally violate the state constitutional protection of freedom of worship. As in the instant case, the ordinance failed to use the least restrictive means to enable the citizens to exercise their constitutional right, and the borough failed to establish any governmental interest which could be deemed overriding. See also Comras v. Lewin, 183 N.J.Super. 42, 45, 443 A.2d 229 (App.Div.1982) (holding that the increased risks associated with abortions delayed to the second trimester are of such magnitude that, while the abortion option remains technically and lawfully available, the mother is effectively denied a meaningful opportunity to choose).
Turning to the constitutionality of the county's refusal to appropriate funds for non-life-threatening inmate abortions, this court finds that such a policy, while valid under the federal Constitution, does violate the Constitution of New Jersey. Plaintiffs contend that the county's policy of refusing to fund both medically necessary and elective abortions, while assuming full financial responsibility for those abortions which pose a serious threat to the mother's life, violates their rights and privileges under both the Eighth and Fourteenth Amendments as well as under the New Jersey Constitution. Leaving aside plaintiffs' Eighth Amendment claim for the moment, this court must consider separately plaintiffs' federal and state claims.
Defendants rely on two United States Supreme Court cases in support of their position that they are not required under the federal Constitution to fund nontherapeutic abortions. In Maher v. Roe, 432 U.S. 464, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977), and Beal v. Doe, 432 U.S. 438, 97 S. Ct. 2366, 53 L. Ed. 2d 464 (1977), a companion case, the Supreme Court made it clear that there is no constitutional right to funding for nontherapeutic abortions. In Maher, the Court specifically sustained Connecticut's use of Medicaid funds to reimburse women for the costs of childbirth and "medically necessary" first trimester abortions (including psychological necessity), and its denial of funds for the costs of elective or non-therapeutic first trimester abortions. The Maher Court, in analyzing the equal protection claim, found neither a suspect classification nor an infringement of a fundamental right. In so concluding, the Court construed Roe to mean that a woman does not have a fundamental right to an abortion, but merely a right to choose whether or not to terminate her pregnancy. Applying the more liberal rational relationship test of constitutionality, the Court found that encouraging normal childbirth was a legitimate state objective to which the statute was "rationally related." 432 U.S. at 478-80, 97 S. Ct. at 2384-85. In Beal, the Court held that Title XIX of the Social Security Act, which established a Medicaid program, does not require state funding of nontherapeutic first trimester abortions as a condition precedent to participation in the joint federal-state program. These two cases clearly support defendants' position that the county is not constitutionally required to fund nontherapeutic or "elective" abortions.
In 1980, the Court went a step further in Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980), when it sustained a more restrictive version of the Hyde Amendment, which placed various restrictions on the use of federal Medicaid funds for abortions. The version of this statute in effect at the time of Harris, prohibited use of Medicaid funds for abortions except where the mother's life was endangered and in instances of rape or incest. See Pub.L. No. 96-123, § 109, 93 Stat. 926 (1979). Again the Court found that the existence of a constitutionally protected right did not obligate the government to grant the funds necessary to exercise the right. Using the same "minimum rationality" test of constitutionality, the Court found, as in Maher, no violation of the equal protection clause of the Fourteenth Amendment. Another case, decided the same day as Harris, Williams v. Zbaraz, 448 U.S. 358, 100 S. Ct. 2694, 65 L. Ed. 2d 831 (1980), upheld an Illinois statute which prohibited Medicaid funds for all abortions except those necessary to preserve the life of the mother. These two later cases establish that the prohibition of funds for abortions which are medically necessary, as well as those which are purely elective, is constitutionally valid. Therefore, the county's current policy is not violative of the federal Constitution.
Notwithstanding the impact of this federal caselaw upon plaintiffs' federal claims, its' claims must also be evaluated under state law. Plaintiffs have alleged the county's denial of funds for medically necessary abortions violates their right to equal protection of the law under the New Jersey Constitution, art. 1, para. 1. As noted above, this court has a duty, in the absence of any New Jersey Supreme Court cases which are squarely on point, to make an informed judgment as to how that court would rule on the case at bar.
In Right to Choose v. Byrne, 91 N.J. 287, 450 A.2d 925 (1982), the New Jersey Supreme Court held that a statute which restricts the funding of abortions to those necessary to save the life of the mother violates the state constitution. The court found that while there is no fundamental right to funding for abortions, there is a fundamental right to choose whether to have an abortion, which extends to all women, including those entitled to Medicaid reimbursement for "necessary medical treatment." Id. at 305, 450 A.2d 925. Using a balancing test of constitutionality,
the court invalidated N.J.S.A. 30:4D-6.1 (West 1981), which restricted Medicaid funding to abortions necessary to save the life of the mother. Id. at 309-10, 450 A.2d 925. The Court determined that a woman's right to choose to protect her health by terminating pregnancy outweighed the state's asserted interest in protecting potential life at the expense of the woman's health. Id. at 310, 450 A.2d 925. The statute was found to impinge upon the fundamental right of a woman to choose whether to terminate her pregnancy or bear her child and to unconstitutionally discriminate between women for whom medical care is necessary for childbirth and those for whom an abortion is deemed medically necessary. Id. at 305-06, 450 A.2d 925. By denying equal protection to women entitled to medically necessary services under Medicaid, the statute violated art. 1, par. 1 of the state constitution,
which mandates a more expansive grant of rights than does the federal Constitution.
The court acknowledged that the challenged statute would not be invalid under the federal Constitution. Id. at 302-03, 450 A.2d 925. With respect to elective, nontherapeutic abortions, the court held that the New Jersey Constitution does not require funding of those abortions which do not affect the life or health of the mother.
Id. at 310, 450 A.2d 925. Noting its duty to save a statute if reasonably susceptible to constitutional interpretation by engaging in "judicial surgery," the court deleted the constitutional defect and construed the statute to limit funding to abortions "medically necessary" to preserve the life or health of a woman. Id. at 311-12, 450 A.2d 925.
Applying the holding and rationale of Right to Choose here, this court concludes that under the state constitution and New Jersey law, the county must provide funding for all requested inmate abortions which are "medically necessary," i.e., all those necessary to protect the life or health of the mother.
Right to Choose provides guidance in defining a "medically necessary" abortion. The Court stated: "The determination of 'medical necessity' is the proper province of physicians, who may be guided, to the extent consistent with competent medical treatment, by the regulations of the Department of Human Services." The regulations referred to, N.J.Admin.Code tit. 10 § 53-1.14(a)(b) (1984), provide as follows:
(a) Effective May 1, 1980, Medicaid will pay for all medically necessary abortions.
(b) A physician may take the following factors into consideration in determining whether an abortion is medically necessary: