(dissenting).
I respectfully dissent.
While I have no problem with my brethren’s analysis as to the requirements that the Medicaid Act imposes on a participating state, I cannot agree that the Hyde Amendment has worked a substantive change in those requirements.
*135The Hyde Amendment was a rider attached to a general appropriations bill for the fiscal year 1978. In addition to making funds available for the Departments of Labor and Health, Education and Welfare, appropriations were made for such disparate purposes as continuing projects and activities as would be available in the District of Columbia Appropriations Act, the Advisory Neighborhood Commissions and the Disaster Loan Fund of the Small Business Administration. Section 101 of Pub.L. 95-205; 91 Stat. 1460 (Dec. 9,1977).
The language of the paragraph in which the rider was inserted is important:
Such amounts as may be necessary for projects or activities provided for in the Departments of Labor, and Health, Education, and Welfare, and Related Agencies Appropriations Act, 1978 (H.R. 7555), at a rate of operations, and to the extent and in the manner, provided for in such Act, notwithstanding the provisions of Sec. 106 of this joint resolution: Provided, That none of the funds provided for in this paragraph shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest, when such rape or incest has been reported promptly to a law enforcement agency or public health service; or except in those instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians.
Nor are payments prohibited for drugs or devices to prevent implantation of the fertilized ovum, or for medical procedures necessary for the termination of an ectopic pregnancy.
The Secretary shall promptly issue regulations and establish procedures to ensure that the provisions of this section are rigorously enforced.
Id. (emphasis added).
There is nothing in the language of the proviso suggesting that Congress intended to repeal the Medicaid Act in part. The Hyde Amendment specifically addresses itself to the use of federal funds. The words are clear: “Provided, That none of the funds provided for in this paragraph . . .” The usual rule of statutory construction is to start with the words of the statute; if they are clear, there is no need to go further.
When confronted with a statute which is plain and unambiguous on its face, we ordinarily do not look to legislative history as a guide to its meaning. Ex parte Collett, 337 U.S. 55, 61, [69 S.Ct. 944, 93 L.Ed. 1207] (1949), and eases cited therein. Here it is not necessary to look beyond the words of the statute. We have undertaken such an analysis only to meet Mr. Justice Powell’s suggestion that the “absurd” result reached in this case, post, at 2302, is not in accord with congressional intent.
TVA v. Hill, 437 U.S. 153, 184 n. 29, 98 S.Ct. 2279, 2296, n.29, 57 L.Ed.2d 117 (1978).
Although my brethren recognize that the language of the Hyde Amendment speaks only to the use of federal funds, they feel that an extensive excursion into legislative history is necessary because its plain meaning produces a result at variance with the policy of the legislation as a whole. This is a bootstrap approach to statutory construction; it allows a court to ignore the plain language of a statute and rewrite it by drawing upon its legislative history. While congressional debates and committee reports can be a helpful guide to the intent of an ambiguously worded statute, they should not be used to defeat the clearly expressed statutory language. The majority opinion cites United States v. American Trucking Associations, Inc., 310 U.S. 534, 543-44, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345 (1939), in support of the doctrine that, when the plain meaning of a statute produces a result “ ‘plainly at variance with the policy of the legislation as a whole,’ ” it is necessary to delve into legislative history. But there is no “legislation as a whole” to consider here. We have an amendment attached to a general appropriations bill. This, of course, is a *136prime example of why the courts should be and are extremely reluctant to allow a rider to an appropriations bill to amend an entirely separate and distinct statute by implication. See extended discussion in TVA v. Hill, supra, 437 U.S. at 189-193, 98 S.Ct. 2299-2301. Our own observation in Mass. Fin. Serv. v. Securities Investor Protection, 545 F.2d 754, 757-58 (1st Cir. 1976), cited in the majority opinion, is pertinent:
It is not our province to decide whether Congress would have been wiser to draft the SIPC legislation so as to include firms like MFS as members, Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U.S. 183, 195-96, 57 S.Ct. 139, 81 L.Ed. 109 (1936), and it is no part of our function to extend a statute’s reach beyond its clearly indicated scope. Guiseppi v. Walling, 144 F.2d 608, 614-15 (2d Cir. 1944) (Frank, J.) aff’d sub nom. Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921 (1945). Rather, “[i]t is our judicial function to apply statutes on the basis of what Congress has written, not what Congress might have written.” United States v. Great Northern Ry., 343 U.S. 562, 575, 72 S.Ct. 985, 993, 96 L.Ed. 1142 (1952). Congress remains free to amend SIPA should it so choose, but as it now stands that act clearly exempts MFS.
But, even assuming that the legislative history is relevant, I can find nothing in the majority’s excellently researched and documented history of the debate on this highly emotionally charged subject that clearly indicates that Congress was doing more than limiting the use of federal funds. There were, as my brethren point out, two separate statements, by Congressman Doran and Edwards, to the effect that only federal funds were involved. The majority concludes, however, that these observations were nullified by those portions of the debate in both the House and Senate that focused on the effect of the amendment on the poor, i. e., by Congressman Stokes, Meyner, Sears and Fraser and Senators Packwood, McGovern, Bayh, Brooke and Javits. But the statements of Congressmen Doran and Edwards were never expressly refuted.
My brethren state that “the record is clear that both houses of Congress were acutely conscious that they were engaging in substantive legislation.” If this is so, it is hard to understand the absence of any statement during the course of the lengthy debate that the Hyde Amendment was making a significant change in the Medicaid Act. Surely, someone in the Congress would have been perceptive enough and forthright enough to realize the full implications of the amendment and say so. It is not as clear to me as it is to my brethren that Congress intended a pro tanto amendment of the Medicaid Act. The majority opinion points to the absence from the debate of any discussion of the financial effects on the states of being forced to fund abortions that are determined to be medically necessary as further evidence of an intended substantive change in the Medicaid Act. It may also, of course, indicate that Congress was so emotionally enveloped in this volatile and disruptive subject that it failed to think through the implications of what it was doing. In any event, we cannot construe silence on a subject as a positive expression of congressional intent.1
We have here a statute whose plain meaning is clear and whose congressional history can be construed to mean that a number of congressmen felt that, contrary to what the statute said, it would effect a substantial change in the Medicaid Act. If this were merely a matter of balancing the words of the statute against the words of the debate, this would be a close case, but the principle disfavoring repeal by implication and Congress’ own procedural rules expressly prohibiting changing existing law via an appropriations bill, apply with particular pertinence here and compel a finding that there was no substantive amendment of the Medicaid Act.
*137The majority’s attempt to distinguish this case from TVA v. Hill, supra, rests on the grounds that full-fledged and lengthy congressional debate is a better gauge of congressional intent than a committee report. As I noted before, however, the subject matter of the debate is an important factor to consider. It would not be inaccurate to say that the more emotional the subject, the less sure we can be that the words used reflect considered thought rather than expressing deeply ingrained feelings. I cannot, as does the majority, ignore the clear teaching of TVA v. Hill, supra.2
The doctrine disfavoring repeals by implication “applies with full vigor when . the subsequent legislation is an appropriations measure.” Committee for Nuclear Responsibility v. Seaborg, 149 U.S.App.D.C. 380, 382, 463 F.2d 783, 785 (1971) (emphasis added); Environmental Defense Fund v. Froehlke, 473 F.2d 346, 355 (CA8 1972). This is perhaps an understatement since it would be more accurate to say that the policy applies with even greater force when the claimed repeal rests solely on an appropriations act. We recognize that both substantive enactments and appropriations measures are “acts of Congress,” but the latter have the limited and specific purpose of providing funds for authorized programs. When voting on appropriations measures, legislators are entitled to operate under the assumption that the funds will be devoted to purposes which are lawful and not for any purpose forbidden. Without such an assurance, every appropriations measure would be pregnant with prospects of altering substantive legislation, repealing by implication any prior statute which might prohibit the expenditure. Not only would this lead to the absurd result of requiring Members to review exhaustively the background of every authorization before voting on an appropriation, but it would flout the very rules the Congress carefully adopted to avoid this need. House Rule XXI(2), for instance, specifically provides:
“No appropriation shall be reported in any general appropriation bill, or be in order as an amendment thereto, for any expenditure not previously authorized by law, unless in continuation of appropriations for such public works as are already in progress. Nor shall any provision in any such bill or amendment thereto changing existing law be in order.” (Emphasis added.)
See also Standing Rules of the Senate, Rule 16.4. Thus, to sustain petitioner’s position, we would be obliged to assume that Congress meant to pro tanto repeal § 7 of the Act by means of a procedure expressly prohibited under the rules of Congress.
437 U.S. at 190-191, 98 S.Ct. at 2299.
The majority cites United States v. Dickerson, 310 U.S. 554, 60 S.Ct. 1034, 84 L.Ed. 1356 (1940), to buttress its position that in rare cases where congressional intent is clear, an amendment to an appropriations bill may effect a change in existing law. In Dickerson, the Congress did amend a reenlistment allowance statute by a provision tacked on to an appropriation for the Rural Electrification Administration. But the language used in the appropriations rider specifically referred to the other statute and explicitly suspended its provisions for the fiscal year in question. Dickerson is, therefore, a very narrow exception to the established rule. Here, there is no clear amendment of the Medicaid Act in the appropriation proviso and, at the least, some ambiguity in the congressional history as to what Congress really intended.
I am also troubled by my brethren’s treatment of what is to me a clear signal in Beal v. Doe, 432 U.S. 438, 444-45, 97 S.Ct. 2366, 2371, 53 L.Ed.2d 464 (1977):
Although serious statutory questions might be presented if a state medicaid *138plan excluded necessary medical treatment from its coverage, it is hardly inconsistent with the objectives of the Act for a State to refuse to fund unnecessary —though perhaps desirable — medical services.
I read this language as a cautionary instruction to the states that, while they would still be within the parameters of the Medicaid Act if they eliminated unnecessary medical services, they would transgress the statutory scheme by precluding necessary medical services from coverage. Which is precisely the situation we confront.
Another factor militating against the result reached by the majority is Congress’ own rules. As pointed out in TVA v. Hill, supra, both houses of Congress have a rule that expressly prohibits changing existing law by an amendment to an appropriation bill. There is scant mention in the congressional debate of these rules or the fact that both houses intended to flout them.3 Are we to assume that Congress deliberately evaded and ignored its own procedural rules, or forgot about them, or was entirely ignorant of them? The only logical conclusion that gives due deference to Congress’ knowledge and respect for its own procedural requirements is that the Hyde Amendment was limited to the use of federal funds only.
The majority opinion focuses on the congressional debate and finds in it a clear intent to amend the Medicaid Act by allowing the states to limit necessary medical services for abortion to those specifically set forth in the Hyde Amendment.4 This approach in my opinion distorts the picture. A complete perspective requires a careful look at all of the factors involved: the words of the statute, the congressional history, the rules of the Congress prohibiting substantive changes in existing law by an amendment to an appropriations bill, and the well established principle against repeal by implication, especially by an amendment to an appropriations bill.
Even if the congressional intent were as clear as the majority finds, I do not think that it should be allowed to ride roughshod over firmly established and, at least up until now, well understood congressional rules and judicial principles of statutory construction. I would hold that the Hyde Amendment is limited, as it clearly says, to the expenditure of federal funds and that the medically necessary requirements of the Medicaid Act still apply to the states. While the result may be “anomalous,” that is a matter for Congress, not the courts. To quote again from TVA v. Hill, supra, 437 U.S. at 195, 98 S.Ct. at 2302:
We agree with the Court of Appeals that in our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with “commonsense and the public weal.” Our Constitution vests such responsibilities in the political Branches.
. The suggestion in the majority opinion that funding by a state alone of medically necessary abortions could cripple a state’s attempts to provide other necessary medical services in its plan is not buttressed by any facts or figures in the record or the congressional history.
. TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), is merely the latest in a long line of cases holding that repeals by implication are not favored. See, e. g., United States v. Continental Tuna Corp., 425 U.S. 164, 168-69, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976); Georgia v. Pennsylvania R. Co., 324 U.S. 439, 456-57, 65 S.Ct. 716, 89 L.Ed. 1051 (1945); United States v. Borden Co., 308 U.S. 188, 198-99 (1939); Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 80 L.Ed. 351 (1936).
. Senator Magnuson did state that the amendment should not be part of an appropriations bill, but did not advert to the Senate rule. Senator Stennis adverted, somewhat obliquely, to the “obscure rules” of the Senate.
. As the majority points out, the requirement that the damage to the mother be limited to physical health, excluding any mental health damage, is directly contrary to the specific provisions of the Medicaid Act that medical services may not be denied “solely because of the diagnosis, type of illness or condition.” 42 C.F.R. § 449.10(a)(5)(i) (1977) [recently recodified as 42 C.F.R. § 440.230, 43 Fed.Reg. No. 190 (Sept. 29, 1978)]. See also 42 U.S.C. § 1396a(a)(10)(A), (C). Rather than reading this language as a repeal by implication of the Medicaid Act, I would read “physical” as surplusage and strike it, leaving “health” standing alone. This construction would permit both statutes to be read in harmony one with the other. “The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974).