United States Court of Appeals,
Fifth Circuit.
No. 94-30445.
HOPE MEDICAL GROUP FOR WOMEN, on behalf of itself and the
Medicaid-eligible women of the State of Louisiana to whom it
provides health care, and Ifeanyi Charles Okpalobi, M.D., on behalf
of himself and his Medicaid-eligible patients seeking abortions, et
al., Plaintiffs-Appellees,
v.
Edwin EDWARDS, Governor of the State of Louisiana, et al.,
Defendants-Appellants.
Sept. 11, 1995.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before WISDOM, GARWOOD and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
This appeal centers on the complex issue of public funding for
abortions. The plaintiffs, Hope Medical Group for Women and Dr.
Ifeanyi Okpalobi, filed suit in federal district court on behalf of
their Medicaid-eligible patients seeking to enjoin Louisiana from
enforcing a state statute prohibiting the state's Medicaid program
from funding abortions except in cases where an abortion is
necessary to save the life of the mother. The district court
issued an injunction prohibiting the state from enforcing the
statute in so far as the statute prohibits funding for abortions to
terminate pregnancies resulting from rape or incest. The state
subsequently appealed. For the reasons explained below, we affirm.
I.
The plaintiffs' suit focusses on LA-R.S. 40:1299.34.5, which
1
prohibits Louisiana's state Medicaid program from offering
abortions except when necessary to save the life of the mother.
They contend that this restriction violates Title XIX of the Social
Security Act and the 1994 version of the so-called Hyde Amendment.
Title XIX establishes the Medicaid program, a jointly funded
federal-state program designed to provide medical care for
qualified individuals "whose income and resources are insufficient
to meet the costs of necessary medical services." 42 U.S.C. §
1396. States choosing to participate in the program receive
federal funds appropriated under Title XIX and use these funds to
finance the health care of state residents who meet the eligibility
criteria set forth in the Act.
Although a state's participation in the Medicaid program is
voluntary, participating states must abide by the requirements
imposed by Title XIX and regulations issued by the Health Care
Finance Administration (the "HCFA"), which is the federal agency
created by the Act to administer the Medicaid program. See Wilder
v. Virginia Hospital Ass'n, 496 U.S. 498, 502, 110 S.Ct. 2510,
2513-14, 110 L.Ed.2d 455 (1990). Title XIX enumerates eight broad
categories of medical services that state programs must provide to
individuals classified as "categorically needy":1
(1) inpatient and outpatient hospital services;
(2) other laboratory or X-ray services;
(3) nursing facility services;
1
42 U.S.C. § 1396a(a)(10) sets forth the eligibility
criteria for determining whether an individual is "categorically
needy."
2
(4) early and periodic screening, diagnostic and treatment services
for recipients under the age of 21;
(5) family planning services and supplies;
(6) physicians' services and services furnished by a dentist;
(7) services furnished by a nurse-midwife;
(8) services furnished by a certified pediatric nurse practitioner
or certified family nurse practitioner.
42 U.S.C. § 1396d(a).
The obligation of participating states to provide abortion
services under Title XIX are circumscribed, however, by the
so-called Hyde Amendment. In 1976, congress enacted the first
version of the Hyde Amendment as a rider to an appropriations bill.
The Hyde Amendment restricted the use of federal funds for abortion
services under Title XIX. Although the specific language and scope
of the Hyde Amendment changed over the years, the version in force
until 1981 essentially limited funding for abortions to three
cases: (1) where the mother's life was in danger, (2) where the
abortion was to terminate a pregnancy resulting from rape or
incest, and (3) where "severe and long-lasting physical health
damage to the mother would result if the pregnancy were carried to
term." See Pub.L. 95-205, 91 Stat. 1460 (Dec. 9, 1977).
From 1981 until 1993, Congress enacted an even stricter
version of the Hyde Amendment which prohibited federal funds for
abortions "except where the life of the mother would be endangered
if the fetus were carried to term." See eg. Pub.L. No. 101-166,
103 Stat. 1159, 1177 (1989). Louisiana's abortion funding
restriction mirrors the 1981-1993 version of the Hyde Amendment.
3
The Louisiana provision provides that:
Notwithstanding any other provision of law to the contrary, no
public funds, made available to any institution, board,
commission, department, agency, official, or employee of the
state of Louisiana, or of any local political subdivision
thereof, whether such funds are made available by the
government of the United States, the state of Louisiana, or of
a local governmental subdivision, or from any other public
source shall be used in any way for, to assist in, or to
provide facilities for an abortion, except when the abortion
is medically necessary to prevent the death of the mother.
LA-R.S. 40:1299.34.5 (emphasis added).
In 1993, Congress enacted a new version of the Hyde Amendment
which, for the first time since 1981, permitted federal funds to be
used for abortions to terminate pregnancies resulting from rape or
incest. Pub.L. No. 103-112, 107 Stat. 1082 (1993). The 1994
version of the Hyde Amendment thus expanded the availability of
funds for abortions under Title XIX. However, because Louisiana
retained its restrictive abortion funding ban, the state's Medicaid
program could not fund abortions in rape and incest cases even
though federal funds were available under the 1994 version of the
Hyde Amendment. The plaintiffs subsequently filed the present
suit, arguing that Louisiana's abortion funding restriction
violates Title XIX and the 1994 Hyde Amendment.
After a hearing, the district court ruled in favor of the
plaintiffs and enjoined the state from enforcing LA-R.S.
40:1299.34.5's ban on funds for abortions in rape and incest cases
as long as the state receives federal funds under Title XIX. The
court held that the 1994 Hyde Amendment substantively modified
states' obligations under Title XIX and that Congress' intent in
enacting the Hyde Amendment "was to ensure that states fund
4
abortions in those narrow circumstances where federal funds were
available under the Hyde Amendments." Hope Medical Group v.
Edwards, 860 F.Supp. 1149, 1152 (E.D.La.1994). The court concluded
that LA-R.S. 40:1299.34.5 conflicts with Title XIX "as amended" by
the Hyde Amendment because it does not "provide Medicaid
reimbursement to eligible women who have abortions terminating
pregnancies resulting from rape or incest." Id. at 1154. The
state timely appealed from the court's judgment enjoining the state
from enforcing its abortion funding restrictions. Before
addressing the merits of the district court's decision, however, we
must first address whether a recent amendment to Louisiana's
abortion funding statute moots this appeal.
II.
During a special legislative session following the district
court's order enjoining enforcement of LA-R.S. 40:1299.34.5, the
Louisiana legislature amended the provision. The amended provision
permits public funds for abortions in cases of rape and incest as
well as in cases where the abortion is needed to save the life of
the mother. See LA-R.S. 40:1299.34.5(B). Although the parties'
briefs on appeal do not address whether the amendment moots this
appeal, one of the plaintiffs, Dr. Okpalobi, raised the mootness
issue in a motion to dismiss the appeal and again during oral
argument. Because the presence of a live case or controversy is a
threshold jurisdictional requirement, we must address it even if it
is not raised by the parties.
A case is moot for Article III purposes if the issues
5
presented are no longer live or the parties lack a legally
cognizable interest in the outcome. See Campanioni v. Barr, 962
F.2d 461 (5th Cir.1992). An exception to the mootness doctrine
exists in cases where a controversy is likely to recur, but may
evade review. See Henschen v. City of Houston, 959 F.2d 584 (5th
Cir.1992). After reviewing the amended version of LA-R.S.
40:1299.34.5, we conclude that the present case falls within this
exception to the mootness doctrine.
The amended version of the funding restriction provides that
public funding for abortions in rape and incest cases will only be
available so long as "a decision or order of a court of competent
jurisdiction" declares that the original version of the statute
violates Title XIX. LA-R.S. 40:1299.34.5. The amended restriction
thus allows abortion funding in rape and incest cases only if a
court order continues to compel the state to do so. Id. Upon
dissolution of the court order, the provision's exception for rape
and incest cases becomes inapplicable and the original restriction
prohibiting publicly-funded abortions except in cases where the
mother's life is in danger becomes effective. Id.2 The amended
provision further provides that state officials "shall vigorously
and expeditiously pursue judicial remedies seeking to obtain ...
reversal" of any order compelling the state to fund abortions in
2
The amendment divides the statutory restriction into two
parts. Part A contains the original restriction prohibiting
abortions except where the mother's life is in danger. Part B
permits abortions in rape and incest cases. Part B of the
statute is triggered only upon the entry of a court order holding
Part A invalid. Once the court order is dissolved, Part B
becomes ineffective.
6
rape and incest cases. See LA-R.S. 40:1299.34.5.
The language of the revised statute clearly indicates that the
Louisiana legislature amended the state's abortion funding
restriction so that it could bring its Medicaid program into
compliance with the district court's injunction. The conditional
language of the statute and the language directing state officials
to seek a reversal of the injunction reveal the continued presence
of a live controversy between the parties over the validity of LA-
R.S. 40:1299.34.5. In City of Mesquite v. Aladdin's Castle, Inc.,
455 U.S. 283, 289, 102 S.Ct. 1070, 1074-75, 71 L.Ed.2d 152 (1982),
the Supreme Court held that the repeal of a city ordinance struck
down as a violation of the First Amendment did not moot the appeal
because "the city's repeal of the objectionable language would not
preclude it from reenacting precisely the same provision" if the
lower court's order enjoining the city from enforcing the ordinance
was ever vacated. In the present case, the plain language of the
LA-R.S. 40:1299.34.5(D) manifests the state's intent to deny
abortions in rape and incest cases as soon as the district court's
injunction can be vacated. Given the state's power to reenact the
original version of its funding restriction and its stated intent
to do so, we conclude that this appeal is not moot. We therefore
turn to the merits of the district court's injunction.
III.
The plaintiffs raise essentially two arguments in support of
the district court's injunction against the Louisiana abortion
funding restriction. First, they contend that the 1994 version of
7
the Hyde Amendment independently requires states to fund all
abortions permitted by the amendment. Second, they alternatively
argue that LA-R.S. 40:1299.34.5 violates Title XIX and its
accompanying regulations because the provision unreasonably
prohibits abortions without regard to medical necessity. We will
consider both arguments in turn.
A.
The plaintiffs first contend that the 1994 Hyde Amendment
substantively amends Title XIX by requiring state Medicaid programs
to cover all abortions in the two categories of cases enumerated in
the amendment: (1) abortions required to save the life of the
mother, and (2) abortions to terminate pregnancies resulting from
rape or incest. The plaintiffs' reading of the 1994 Hyde Amendment
essentially eliminates the discretion of state Medicaid programs to
place limitations on abortion services in cases of rape or incest
and in cases where an abortion is necessary to save the life of the
mother.
The plaintiffs' argument relies primarily on the legislative
history of the Hyde Amendment. During the congressional floor
debates preceding the passage of the 1994 Hyde Amendment, several
legislators stated that a proposal to eliminate the amendment would
result in states having to fund non-therapeutic abortions. For
example, Senator Nickels explained that a repeal of the Hyde
Amendment "would result in mandating that states pay for these
abortions with state dollars." 139 Cong.Rec. S12,581 (Sept. 28,
1993). Likewise, Senator Hatch argued that "every state will be
8
required to provide matching funds for abortion on demand" if the
Hyde Amendment were repealed. Id. at S12,588. According to the
plaintiffs, these statements reveal Congress' understanding that
states must fund all abortions for which federal funds are
available.
The plaintiffs also point to the absence of the so-called
"Bauman Amendment" language in the 1994 version of the Hyde
Amendment. The Bauman Amendment was originally added to the 1979
version of the Hyde Amendment, and provided that "the several
states are and shall remain free not to fund abortions to the
extent that they in their sole discretion deem appropriate." The
plaintiffs argue that the absence of this provision in the current
version of the Hyde Amendment demonstrates that Congress intended
to make Medicaid funding of abortions covered under the Hyde
Amendment mandatory, and thus remove the states' discretion to
limit abortion services provided through their Medicaid programs.
The defendants counter by arguing that the Hyde Amendment does
not impose any independent substantive obligations on state
Medicaid programs apart from Title XIX. They read the Hyde
Amendment as a mere appropriations provision that restricts the use
of federal funds for abortions except under limited circumstances.
They argue that the amendment is purely permissive with regard to
state funding of abortions under the two exceptions where federal
funds are permitted by the Hyde Amendment.
Most of the cases interpreting the Hyde Amendment have
generally focussed on whether the Hyde Amendment relieves state
9
Medicaid programs of Title XIX's requirements with respect to
abortions for which federal funding is not available under the
amendment. See Preterm, Inc. v. Dukakis, 591 F.2d 121, 125 (1st
Cir.1979); Roe v. Casey, 623 F.2d 829 (3rd Cir.1980); see also
Harris v. McRae, 448 U.S. 297, 309, 100 S.Ct. 2671, 2684, 65
L.Ed.2d 784 (1980) ("Title XIX does not require a participating
State to include in its plan any services for which a subsequent
Congress has withheld federal funding."). However, in Hern v.
Beye, 57 F.3d 906 (10th Cir.1995), the Tenth Circuit addressed the
converse question of whether the Hyde Amendment independently
imposes an obligation on participating states to fund all abortions
permitted by the amendment. The court concluded that the Hyde
Amendment does not impose substantive obligations on State Medicaid
programs:
[T]he Hyde Amendment does not affect the states' underlying
obligations imposed by Title XIX and federal Medicaid
regulations. That is, although the Hyde Amendment relieves
states' of having to fund abortions for which federal funding
is unavailable, it does not alter states' obligations with
respect to abortions for which federal funding is available.
Id. at 909 (emphasis in original). The court reasoned that state
restrictions on abortion funding must be evaluated with reference
to the requirements of Title XIX and its accompanying regulations,
not the Hyde Amendment. Id.
We agree with the Tenth Circuit that the Hyde Amendment does
not impose any independent obligations on states apart from the
requirements of Title XIX. The plain meaning of a statute's
language governs its construction unless so doing would clearly
violate congressional intent or lead to absurd results. See United
10
States v. Rodriguez-Rios, 14 F.3d 1040, 1044 (5th Cir.1994).
Turning to the language of the Hyde Amendment and the case
law applying the amendment, we agree with the defendants' argument
that the Hyde Amendment does not create substantive obligations.
On its face, the Hyde Amendment merely restricts the use of federal
funds for abortions. The 1994 version of the amendment provides:
None of the funds appropriated under this Act shall be
expended for any abortion except when it is made known to the
Federal entity or official to which funds are appropriated
under this Act that such procedure is necessary to save the
life of the mother or that the pregnancy is the result of an
act of rape or incest.
Pub.L. No. 103-112, 107 Stat. 1082 (1993). Although the 1994
version of the Hyde Amendment permits the use of federal funds for
abortions in rape and incest cases, the amendment contains no
language obligating state Medicaid programs to fund abortions under
these circumstances. Nor does the amendment purport to
substantively amend Title XIX with respect to the authority of
state Medicaid programs to tailor the scope of their medical
coverage.
Neither the Hyde Amendment's legislative history nor the
absence of the Bauman Amendment language persuade us to abandon the
plain meaning of the statute. The excerpts of the congressional
debate cited by the plaintiffs focussed on the implications of a
proposal to remove the Hyde Amendment from the 1994 appropriations
bill for health and human services programs. When viewed in this
context, these statements appear merely to reflect the fear of the
Hyde Amendment's proponents that a defeat of the amendment would
result in states having to fund all medically necessary abortions
11
under Title XIX. These statements focus on states' obligations
under Title XIX, not whether the Hyde Amendment imposes independent
obligations on state Medicaid programs. They do not, therefore,
suggest that the Hyde Amendment's language restricting abortion
funding can be read to conversely require states to provide
abortions permitted by the amendment.
We also disagree that the absence of the so-called Bauman
Amendment similarly dictates that we abandon the plain meaning of
the Hyde Amendment. During the Congressional debates preceding the
passage of the Bauman Amendment in 1979, Representative Bauman
explained that the intent of the Bauman Amendment was to modify
states' obligations under Title XIX and to grant participating
states the authority to eliminate abortion services from their
Medicaid programs. Cong.Rec. 25425-35426 (Dec. 11, 1979). Thus,
as with the debates over the Hyde Amendment, the debates over the
Bauman Amendment centered on the obligations imposed by Title XIX,
not the Hyde Amendment. Indeed, Representative Bauman explained
that the purpose of the Hyde Amendment "has been from the beginning
to restrict Federal funding and not in any way to place burdens on
the rights of States." Id. at 35426.
We therefore follow Hern in holding that the Hyde Amendment
does not create any independent obligations on states participating
in the Medicaid Program to fund abortions permitted by the
amendment. Accordingly, we must now turn to the text of Title XIX
and its accompanying regulations to determine whether the Louisiana
funding restriction violates these requirements.
12
B.
Whether Louisiana's funding restriction violates Title XIX
turns on the extent to which the Act affords participating states
the discretion to place restrictions on the medical services
offered through their Medicaid programs. Although Title XIX does
not specifically include abortion as a mandatory service, the
parties concede that abortion services fall under several of the
eight broad categories of medical services mandated by the Act,
including inpatient hospital services, outpatient hospital
services, physician's services, and family planning services. See
42 U.S.C. § 1396d(a). The plaintiffs contend that abortion
services are therefore mandated by Title XIX and that Louisiana's
funding restriction violates the Act because it generally prohibits
abortions except in cases where the mother's life is in danger.
Title XIX "confers broad discretion on the states to adopt
standards for determining the extent of medical assistance"
provided through their Medicaid programs. Beal v. Doe, 432 U.S.
438, 444, 97 S.Ct. 2366, 2371, 53 L.Ed.2d 464 (1977). However,
states' discretion to limit the scope of the medical services
offered through their Medicaid programs is subject to important
restrictions. Title XIX specifically provides that participating
states must establish "reasonable standards" that are "consistent
with the objectives" of the Act. 42 U.S.C. § 1396a(a)(17). Some
courts have read this provision as mandating that states must cover
all medical procedures certified as "medically necessary" by a
recipient's physician. See Weaver v. Reagen, 886 F.2d 194 (8th
13
Cir.1989); Pinneke v. Preisser, 623 F.2d 546, 548 n. 2 (8th
Cir.1980). Other courts have declined to impose such a strict
"medical necessity" restriction on states' discretion. Instead,
they read Title XIX as granting states some discretion to limit
medical services based on their judgment as to whether a particular
medical service is medically necessary. See Preterm, 591 F.2d at
125.3 Under this approach, a state program's decision to limit a
service based on the degree of medical necessity is subject only to
Title XIX's requirement that the limitation must be reasonable.
Id.
HCFA regulations promulgated under Title XIX provide
additional guidance in assessing the reasonableness of a state
restriction on the medical services offered through its Medicaid
program. These regulations provide that:
(b) Each [medical] service must be sufficient in amount,
duration, and scope to reasonably achieve its purpose.
(c) The Medicaid agency may not arbitrarily deny or reduce the
amount, duration, or scope of a required service ... to an
otherwise eligible recipient solely because of the diagnosis,
type of illness or condition.
(d) The agency may place appropriate limits on a service based
on such criteria as medical necessity or on utilization
control procedures.
42 C.F.R. § 440.230 (emphasis added). A participating state may,
therefore, choose to limit the provision of particular medical
3
In Preterm, the court rejected the argument that a state
Medicaid program must cover any medical procedure certified by a
doctor as medically necessary. Rather, the court reasoned that
state legislatures may make "the macro-decision ... that only
certain kinds of medical assistance are deemed sufficiently
necessary to come under the coverage of its plan." Id. at 125.
14
procedures or treatments as long as the restriction complies with
§ 440.230.
Almost all the federal circuit cases addressing whether state
abortion funding restrictions violate Title XIX have held that
state restrictions similar to LA-R.S. 40:1299.34.5 violate Title
XIX. See Preterm, 591 F.2d at 125; Casey, 623 F.2d 829; Hodgson
v. Board of County Comm'rs, County of Hennepin, 614 F.2d 601, 608
(8th Cir.1980); Zbaraz v. Quern, 596 F.2d 196, 199 (7th Cir.),
cert. denied, 448 U.S. 907, 100 S.Ct. 3048, 65 L.Ed.2d 1136 (1980);
Hern, 57 F.3d at 909-10; Little Rock Family Planning Services v.
Dalton, 60 F.3d 497 (8th Cir.1995).4 In many of these cases, the
state abortion funding restrictions were actually less restrictive
than LA-R.S. 40:1299.34.5 because they allowed funds for abortions
in cases of rape or incest. Although each of these courts offer
slightly different rationales for holding the restrictions invalid,
they each generally arrive at the same conclusion: the state
restrictions were inconsistent with the basic objective of Title
XIX to provide necessary medical services to eligible recipients.
In Preterm, the First Circuit struck down a Massachusetts
abortion funding restriction that was less restrictive that the
Louisiana restriction at issue in this case. The Massachusetts
statute prohibited the state Medicaid program from funding
abortions except in cases where the mother's life was in danger and
4
Recent federal district court decisions have similarly held
that such restrictions are invalid. See Planned Parenthood v.
Wright, No. 94 C 6886, 1994 WL 750638 (N.D.Ill. Dec. 6, 1994);
Planned Parenthood v. Engler, 860 F.Supp. 406 (W.D.Mich.1994);
Planned Parenthood v. Blouke, 858 F.Supp. 137 (D.Mont.1994).
15
where the pregnancy resulted from rape or incest. 591 F.2d at 126-
127. The plaintiffs in Preterm argued that the state's funding
restriction violated Title XIX because it did not permit funding
for abortions in cases where the health of the mother was at risk.5
Although the First Circuit acknowledged that the state's
abortion funding restriction was arguably a limitation based on
medical necessity, the court concluded that restrictions which
limit medical services "to life and death situations" and cases of
rape and incest contravene the objectives of the Act. Id.
According to the court, the state funding restriction contravened
the objectives of Title XIX in two respects. First, the court
reasoned that Title XIX's objective of providing needed medical
care is broader than the stark "life and death" restriction
embodied in the Massachusetts provision. The court concluded that
the state's restriction thus "crossed the line between permissible
discrimination based on degree of need and entered into forbidden
discrimination based on medical condition." Id. at 126. The court
further held that the restriction contravened Title XIX by failing
to incorporate physician input into whether or not a given abortion
procedure is medically necessary. According to the court, Title
XIX "provides for a central role for the physician in determining
proper treatment." Id. at 127.
In Hodgson, the Eighth Circuit similarly held that a Minnesota
5
At the time, the Hyde Amendment permitted funds to be used
for abortions in cases where the mother would suffer severe and
long-lasting physical damage if forced to carry the pregnancy to
term. See Pub.L. 95-205, 91 Stat. 1460 (Dec. 9, 1977).
16
statute limiting Medicaid-funded abortions was invalid. 614 F.2d
at 608. As with the Massachusetts statute, the Minnesota statute
limited abortions offered through its Medicaid program to cases
where the abortion was necessary to save the life of the mother and
in cases of rape or incest. The court concluded that Minnesota's
funding restriction was arbitrary because the state's Medicaid
program subsidized "health-sustaining" services in general, but, in
the case of abortion, subsidized abortion procedures only if they
were "life-sustaining." Id. The court concluded that the state's
restriction on abortion funding was thus "not in accordance with a
uniform standard of medical need." Id.
Both Preterm and Hodgson were decided against the backdrop of
the pre-1981 version of the Hyde Amendment, which, like the 1994
version of the amendment, permitted federal funding for abortions
in cases of rape and incest. The Tenth Circuit, however, recently
addressed this precise issue against the backdrop of the 1994
version of the Hyde Amendment. In Hern, the court ruled that a
Colorado statute contravened Title XIX because it restricted
abortions provided through the state's Medicaid program to cases
where an abortion was necessary to save the life of the mother.
Like the Louisiana abortion funding restriction, the Colorado
restriction did not provide funds for abortions in cases of rape or
incest. The court held that the statute contravened Title XIX
because it "categorically denies coverage for a specific, medically
necessary procedure except in those rare instances when a patient's
life is at stake." Id. at 911. The court reasoned that this
17
restriction was antithetical to a basic objective of Title XIX—"to
provide necessary medical services to qualified individuals." Id.
at 910-11. Therefore, Hern essentially tracks the reasoning of
Hodgson and Preterm in holding that the Colorado funding
restriction violated Title XIX because it was an arbitrary
restriction based solely on a recipient's condition or diagnosis.
We agree with the reasoning of these decisions and hold that
Louisiana's abortion funding restriction similarly violates Title
XIX. The text of Title XIX reveals that the Medicaid program is
not limited to merely providing medical services necessary to save
patients' lives. Title XIX contains no language suggesting that
the medical services mandated by the Act are mandatory only in life
and death situations. Indeed, Title XIX specifically requires
participating states to provide preventive medical services, such
as prenatal care, dental care, and "periodic screening, diagnostic
and treatment services" for eligible recipients under age 21. See
42 U.S.C. § 1396d(a)(4)-(5). Title XIX also requires state
Medicaid programs to provide outpatient hospital services. See 42
U.S.C. § 1396d(a)(2)(A). That Title XIX requires states to provide
medical services not typically associated with life and death
situations manifests the broad scope of the program. As noted in
Hodgson, the broad objective of Title XIX is to provide
"health-sustaining" medical services to eligible recipients, not
merely "life-sustaining" services. 614 F.2d at 608.
Given the broad scope of Title XIX, Louisiana's funding
restriction is inconsistent with the objectives of the Act because
18
the restriction categorically limits abortions offered through the
state's Medicaid program to life and death situations without
regard to the medical necessity of abortions in rape and incest
cases. During the hearing, the plaintiffs produced evidence
supporting their claim that abortions in rape and incest cases are
often medically necessary even though the mother's life might not
be in danger. The plaintiffs' evidence included research reports
and expert testimony detailing the mental and physical health
problems attendant to pregnancies resulting from rape or incest.
The plaintiffs also introduced a December 1993 letter sent by the
HCFA to the directors of each state Medicaid program. The letter
stated that, in the opinion of the HCFA, Title XIX now requires
participating states to fund medically necessary abortions in rape
and incest cases because of the expansion of funding under the 1994
version of the Hyde Amendment. This language suggests that, in at
least some cases, abortions in cases of rape or incest are
medically necessary and must therefore be provided by state
Medicaid programs under Title XIX.6
The defendants failed to controvert the plaintiffs' evidence
that abortions in rape and incest cases are frequently medically
6
The HCFA letter also suggests that abortions in rape and
incest cases are "per se" medically necessary and, therefore,
must be provided by states without restriction. We need not,
however, decide whether this language in the HCFA directive
purports to totally eliminate states' discretion to restrict
abortions in rape and incest cases. Regardless of whether the
directive can be read to eliminate states' discretion over
abortions in rape and incest cases, Louisiana's restriction
violates Title XIX because it categorically limits
Medicaid-funded abortions to life and death situations.
19
necessary. Indeed, the defendants do not dispute the plaintiffs'
argument that Louisiana's abortion funding restriction is not
grounded on the health or medical needs of Title XIX patients.
Although Title XIX and 42 C.F.R. § 440.230 allow state Medicaid
programs to adopt appropriate limits based on medical necessity,
such restrictions must be consistent with the Act's objective of
providing a broad range of health-sustaining services. For
example, restrictions that limit the provision of medical services
to life and death cases may be appropriate where the medical
benefits of certain procedures or treatments are significantly
outweighed by their risks to patients' health. Such a restriction
would be consistent with promoting the health of Title XIX
patients. Restrictions might also be appropriate where the state
legislature or the state Medicaid program determines that a medical
treatment or procedure is not medically necessary. See Preterm,
591 F.2d at 125.7 However, the defendants offer no grounds for
concluding that abortions in rape and incest cases are never
medically necessary.
7
See also Mother Doe et al. v. Stewart, No. 74-3197 (E.D.La.
Feb. 20, 1976) (Ainsworth, J.). In Mother Doe, a three judge
district court upheld a Louisiana statute that prohibited
"non-therapeutic" abortions. The court held that a state can,
consistent with Title XIX, prohibit abortions that are not
medically necessary:
[I]n view of Congress' recognition of a State's limited
resources, its attitude toward abortions and its
silence on the subject, we believe that Congress did
not intend that States should pay for non-medically
necessary abortions as necessary medical expenses when
States are not required to fund other medically
non-necessary services such as elective cosmetic
surgery.
20
We also disagree with the defendants' contention that
Louisiana's interest in encouraging childbirth over abortion is
sufficient to sustain the state's abortion funding restriction.
The defendants' argument relies primarily on language taken from
Beal, 432 U.S. at 445-446, 97 S.Ct. at 2371-2372. In Beal, the
Supreme Court upheld a state statute that prohibited the state's
Medicaid program from offering non-therapeutic abortions. The
court reasoned that states had a legitimate interest in encouraging
childbirth, and that this interest is sufficiently compelling to
support state restrictions on Medicaid funding for non-therapeutic
abortions:
The respondents point to nothing in either the language or the
legislative history of Title XIX that suggests that it is
unreasonable for a participating State to further this
unquestionably strong and legitimate interest in encouraging
normal childbirth. Absent such a showing, we will not presume
that Congress intended to condition a State's participation in
the Medicaid program on its willingness to undercut this
important interest by subsidizing the costs of non-therapeutic
abortions.
Id. at 446, 97 S.Ct. at 2371. The defendants contend that the
Court's reasoning in Beal supports Louisiana's funding restriction
even though, unlike the restriction in Beal, the Louisiana
provision also prohibits therapeutic abortions except in cases
where the mother's life is in danger.
Although we agree that Louisiana's interest in encouraging
normal childbirth is legitimate and supports restrictions on
non-therapeutic abortions, we do not agree that this interest is
sufficient to sustain the state's present abortion funding
restriction. As we previously explained, one of the principal
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objectives of Title XIX is the provision of necessary medical
services to eligible recipients. A state cannot, therefore, adopt
an abortion funding restriction based solely on its interest in
encouraging childbirth without taking the medical necessity of the
procedure into account.
In sum, we conclude that LA-R.S. 40:1299.34.5 violates the
requirements of Title XIX because it categorically prohibits
funding for abortions in cases of rape or incest without regard to
whether the procedures might be medically necessary. The
defendants offer no medical basis for restricting abortions to life
and death situations, nor do they contest the plaintiffs' position
that abortions in rape and incest cases are often medically
necessary. The state's abortion funding restriction is therefore
inconsistent with the broad objective of Title XIX to provide
needed medical care to qualified recipients. Accordingly, the
district court did not err in enjoining the state from enforcing
LA-R.S. 40:1299.34.5 as long as the state receives funds under
Title XIX.
IV.
For the reasons stated above, we AFFIRM the district court's
order enjoining the defendants from enforcing LA-R.S.
40:1299.34.5's ban on funds for abortions in rape and incest cases
as long as the state receives federal funds under Title XIX.
AFFIRMED.
GARWOOD, Circuit Judge, concurring:
I concur in Judge Davis's thoughtful and well-crafted opinion,
22
and append this writing merely to underscore my understanding as to
what we do not hold or opine respecting in two particular areas.
While I agree that Louisiana's "unquestionably strong and
legitimate interest in encouraging normal childbirth," Beal v. Doe,
432 U.S. 438 at 446, 97 S.Ct. 2366 at 2371 (1977), is not
sufficient justification for the State, as a Title XIX participant,
to categorically deny abortion funding to all Medicaid-eligible
patients who are victims of rape or incest "without taking the
medical necessity of the procedure into account" (majority op. p.
5687), I believe that interest may properly be taken into account
by the state in determining the character and degree of medical
necessity, in cases where the mother's life is not at stake, which
will be required in order to justify provision of abortion
services. In other words, the interest in preserving human life is
a rational justification for a participating state to require
greater and more concrete and verifiable medical necessity in cases
of abortion than in cases of procedures which do not terminate
human life. I do not understand Judge Davis's opinion to hold or
opine to the contrary. Nor do I understand us to address the
question of just what character or degree of medical necessity and
demonstration thereof a participating state may lawfully require
before funding an abortion for a Medicaid-eligible patient whose
pregnancy results from rape or incest.1
1
The three-judge court in Mother Doe et al. v. Stewart, No.
74-3197 (E.D.La. Feb. 20, 1976), held that Louisiana's then
policy of providing abortion funding for Medicaid-eligible
patients only where either necessary to save the mother's life or
"necessary to prevent serious and permanent impairment to the
23
Second, the State of Louisiana in this appeal has taken an
essentially all or nothing position, namely that it is entitled to
participate in Title XIX while at the same time declining to ever
provide Medicaid-eligible patients any funding for any abortions
save only those necessary to save the mother's life. The State's
only complaint of the district court's decree is that the decree
conflicts with this supposed right of the State. We are thus not
faced with issues of the kind raised by Judge Bowman's
well-reasoned dissent in respect to the form of the district
court's decree in Little Rock Family Planning Services v. Dalton,
60 F.3d 497 (8th Cir.1995). The form of the decree here has not
been put in issue on this appeal,2 and I do not understand Judge
Davis's opinion to address that matter.
physical health of the mother" was "consistent with the Social
Security Act" (id. at 16, 17). Mother Doe was summarily
"affirmed" by the Supreme Court. Doe v. Stewart, 433 U.S. 901,
97 S.Ct. 2963, 53 L.Ed.2d 1086 (1977) (per curiam; Justices
Brennan, Marshall, and Blackmun dissenting). The Supreme Court
jurisdictional statement of the plaintiffs-appellants in Doe v.
Stewart lists as the second of the two "Questions Presented,"
"Does the Medicaid policy of the State of Louisiana, which
provides payment for only therapeutic abortions, as defined by
state law, violate the requirements of the Social Security Act of
1935, as amended?", and explains that "the Louisiana Medicaid
Program would not pay for [plaintiff-appellant] Jane Doe's
abortion because her pregnancy had not been medically determined
to be seriously threatening to her life or her physical health."
Mother Doe involved an unmarried minor's pregnancy not claimed to
have resulted from rape or incest.
2
All the State has placed in issue on this appeal is the
claim that LA.R.S. 40:1299.34.5's restriction of any abortion
funding to instances where necessary to save the mother's life is
wholly valid notwithstanding Louisiana's continued participation
in Title XIX.
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