I respectfully dissent. I would affirm Judge Alsop’s opinion of July 17, 1979.
I agree with the majority, as it agrees with Judge Alsop, that the Minnesota statute and regulations as written are substantively inconsistent with Title XIX (Medicaid) as enacted. Where I differ with the majority is in their holding today that the Hyde Amendment (Hyde) substantively amends Medicaid. In so differing, I further agree with Judge Alsop that neither the constitutionality of the state law nor Hyde need be reached.
My reasons for concluding that Hyde does not substantively amend Medicaid mirror those of Judge Bownes, dissenting in Preterm, Inc. v. Dukakis, 591 F.2d 121, 134-38 (1st Cir. 1979). See also Planned Parenthood Affiliates v. Rhodes, 477 F.Supp. 529, 537-39 (S.D.Ohio 1979) (Kinneary, J., presiding); Doe v. Busbee, 471 F.Supp. 1326, 1331-34 (N.D.Ga.1979) (Murphy, J., presiding) [“For a court to say that the plain words of a statute mean something other than what they ordinarily mean because members of Congress have said they should, or would, have such an effect is for a court to abdicate its responsibility under our federal system.” Id. at 1334 & n.21].
*616The cardinal rule is that repeals by implication are not favored. Morton v. Mancari, 417 U.S. 535, 549, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). Accord TVA v. Hill, 437 U.S. 153, 189, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The doctrine applies with full vigor when the subsequent legislation is an appropriation measure. TVA v. Hill, supra, 437 U.S. at 190, 98 S.Ct. 2279; Committee for Nuclear Responsibility v. Seaborg, 149 U.S.App.D.C. 380, 383, 463 F.2d 783, 785 (D.C. Cir. 1971). Given the limited duration of appropriations bills, the courts are properly reluctant to hold that such measures affect the substance of existing, on-going legislative programs. I do not find Congress’ supposed intent to amend or repeal Medicaid to be “clear and manifest”. Compare TVA v. Hill, supra, 437 U.S. at 189, 98 S.Ct. 2279.
Hyde was a rider to an appropriations bill. It is, and has been, subject to yearly change. The fiscal year 1977 version differed radically from those enacted for 1978, 1979 and 1980. The very fact that Congress has adopted four different Hyde Amendments in four years would seem obviously to belie any intention on its part to substantively amend Medicaid once and for all. And given the current political winds emanating from the abortion storm one can easily envision future design changes. An expansive construction of Hyde would not only undermine the on-going stability of Medicaid but would also embroil this and other courts in reviewing such claimed amendments, year after year. The thought of so doing is unnerving if not repugnant.
If Congress intends that neither the federal nor state governments fund medically necessary abortions as Medicaid on its face requires, it knows full well how to make its intent clear and manifest by forthrightly amending Medicaid directly. To permit Congress to do less is tantamount to having courts legislate, by judicial interjection under the guise of construction, what Congress has been unable or unwilling to do by clear and manifest enactment.
It is not the judicial function to discern the public will; that is for the legislature. Rather the courts’ function is to say what the law is and enforce it as it exists. See TVA v. Hill, supra, 437 U.S. at 194-95, 98 S.Ct. 2279. The fact that the issues presented in the therapeutic abortion funding context are of immense public import and controversy should not prod the courts into an ill-conceived, though perhaps understandable, abdication of their proper role in our tri-partite system of government. In my opinion, to conclude that Hyde substantively amends Medicaid amounts to nothing other than such an abdication. It is not only bad judicial practice, but also endorsement of bad legislative practice. It is bad law.
Finally, I am especially inclined to my view of the absence of legislative intent to amend or repeal Medicaid because Hyde was enacted by a simple majority of members of Congress in clear contravention of House and Senate rules that preclude amendment or implied repeal of substantive statutes by means of appropriations measures without a record of suspension of the rules in both Houses. See House Rule XXI(2); Standing Rule of the Senate 16.4. Compare Preterm, Inc. v. Dukakis, 591 F.2d at 138 (Bownes, J., dissenting). Cf. TVA v. Hill, 437 U.S. 153, 189-91, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).
In summary, I view Hyde as having no substantive effect on Medicaid. The Minnesota statutes and regulations as written are inconsistent with Medicaid as enacted and there is no need to reach the constitutional issues. I would affirm the trial court on all points.