Doe v. Beal

523 F.2d 611

Opinions

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Before us are appeals both by plaintiffs and by the defendants from an order of a three-judge district court entered May 28, 1974, pursuant to an opinion which was filed by the district court on May 3, 1974. Doe v. Wohlgemuth, 376 F.Supp. 173 (W.D.Pa.1974).¹ The case was argued before a panel of this court on October 24, 1974. The panel’s opinion and judgment were filed on December 10, 1974. On December 24, 1974, the plaintiffs (appellees and cross-appellants) petitioned the court to rehear the case en banc. On January 31, 1975, we vacated the panel’s December 10, 1974, judgment and ordered the case to be reheard en banc. The case was reargued en banc on May 8, 1975.

I. BACKGROUND

The facts appear in the district court’s opinion. Doe v. Wohlgemuth, supra at 175 — 78. Briefly stated, the plaintiffs are women who are eligible for benefits under the Pennsylvania Medical Assistance Program (PMAP).² The defendants are “the Pennsylvania Department of Public Welfare (Department) and certain of its Officers and/or Administrative Representatives.” Id. at 175. The plaintiffs challenge certain procedural requirements (hereinafter referred to as “procedures” or “regulations”) which the Department has adopted to restrict PMAP payments for abortions.³ The district court found that, under those procedures, abortions would only be performed under PMAP in the following situations:

“ ‘1. There is documented medical evidence that continuance of the pregnancy may threaten the health or life of the mother;

2. There is documented medical evidence that the infant may be born with incapacitating physical deformity or mental deficiency; or

3. There is documented medical evidence that a continuance of a pregnancy resulting from legally established statutory or forcible rape or incest, may constitute a threat to the mental or physical health of a patient;

4. Two other physicians chosen because of their recognized professional competency have examined the patient and have concurred in writing; and

5. The procedure is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals.’ ”

Id. at 175. See also id. at 175 n. I.⁴ In effect, these requirements define a compensable “therapeutic” abortion, and exclude payment for non-therapeutic, or “elective,” abortions. The district court found that PMAP also covers the costs of prenatal care, childbirth, and post-par-tum treatment when the woman chooses to bear the child. Id. at 187.

The plaintiffs attack the Department’s regulations both on the statutory ground that they are inconsistent with Title XIX (commonly called “Medicaid”) of the Social Security Act (hereinafter sometimes referred to as “the Act”), 42 U.S.C.A. § 1396 et seq. (1974),⁵ and also on the constitutional ground that they are inconsistent with the Equal Protection Clause of the Fourteenth Amendment. In Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), the Supreme Court reversed the dismissal of a suit which challenged certain New York regulations under the Aid to Families with Dependent Children (AFDC) provisions of the Social Security Act, 42 U.S.C.A. § 601 et seq. (1974). Like Medicaid, AFDC is a voluntary participation program. See Hagans v. Lavine, supra at 530 n. 1, 94 S.Ct. 1372. Like the plaintiffs in the case now before us, the plaintiffs in Hagans v. Lavine challenged the New York regulations both on the ground that they were inconsistent with the Act and also on the ground that they violated the Equal Protection Clause of the Constitution. Id. at 530-31, 94 S.Ct. 1372. The Court held that the constitutional claim was sufficient to confer jurisdiction on the district court under 28 U.S.C. § 1343(3),⁶ but required the district court on remand to consider the statutory claim first as a matter of pendant jurisdiction. Hagans v. Lavine, supra, at 536, 539-43, 94 S.Ct. 1372. The Supreme Court has recently made it clear that in the Title XIX setting it also desires the statutory claim to be carefully considered before constitutional questions are reached. In Westby v. Doe, 420 U.S. 968, 95 S.Ct. 1385, 43 L.Ed.2d 648 (1975), vacating Doe v. Westby, 383 F.Supp. 1143 (D.S.D.1974), a policy of the Social Services Department of the State of South Dakota, which limited payment under Title XIX for abortions, was under review. The district court had reached the question of the policy’s constitutionality without any consideration of the policy’s consistency with Title XIX, and the Supreme Court summarily vacated and remanded for reconsideration in the light of Hagans v. Lavine.7

In the case before us, the district court considered the statutory claim, but decided that the Pennsylvania procedures were consistent with the Social Security Act. See Doe v. Wohlgemuth, supra at 182-86. Turning to the allegations of unconstitutionality, the court declared the procedures to be in violation of the Equal Protection Clause. See id. at 186-92.⁸

Both arguments are renewed in this appeal. Because we believe that the principle of Hagans v. Lavine applies to the courts of appeals as well as to the district courts, we will consider first whether the Pennsylvania procedures are consistent with the Social Security Act. See Alma Motor Co. v. Timkin-Detroit Axle Co., 329 U.S. 129, 136-37, 67 S.Ct. 231, 91 L.Ed. 128 (1947); United States v. Schiavo, 504 F.2d 1, 6-7 & n. 11 (3d Cir. 1974).

II. SUPREME COURT PRECEDENT ON THE SCOPE OF STATE PREROGATIVE UNDER THE SOCIAL SECURITY ACT

The district court reasoned that the Social Security Act was designed to give the states great latitude in establishing eligibility for, and levels of, benefits. Doe v. Wohlgemuth, supra at 184—86. The court relied principally on Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), in which the Supreme Court held that the Social Security Act allowed the states to place a ceiling on the amount of benefits available to recipients of AFDC. See also New York Dept. of Social Services v. Dublino, 413 U.S. 405, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973) (a work incentive program added to the AFDC provisions of the Act does not pre-empt state work incentive programs); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972) (Texas’ method of computation of AFDC benefits held consistent with the Act).

The Supreme Court has recognized an important qualification to the Dandridge v. Williams principle. In King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 118 (1968), the Court held invalid Alabama regulations which prevented AFDC benefits from flowing to the children of women cohabiting out of wedlock. The Court found the regulations to be inconsistent with congressional policy regarding AFDC recipients. Similarly, in Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), the Court held invalid a New York law which lowered the “standard of need” for AFDC benefits, finding the law to be inconsistent with what the Court “fathom[ed] to be the Congressional purpose” in enacting § 402(a)(23) of the Social Security Act, 42 U.S.C.A. § 602(a)(23) (1974). 397 U.S. at 414b-15, 90 S.Ct. 1207. King and Rosado demonstrate that, although the AFDC program is a “scheme of cooperative federalism,” King, supra, 392 U.S. at 316, 88 S.Ct. at 2128 it is not a scheme of unlimited state discretion. Instead, Congress defined an area of state prerogative, the boundaries of which are defined by the congressional policies — both explicit and implicit⁹ —found in the Social Security Act. The King v. Smith principle was reaffirmed by an eight-Justice majority in Van Lare v. Hurley, 421 U.S. 338, 95 S.Ct. 1741, 44 L.Ed.2d 208 (1975) (finding New York’s “lodger” regulations inconsistent with the Social Security Act). See also Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971); Lewis v. Martin, 397 U.S. 552, 90 S.Ct. 1282, 25 L.Ed.2d 561 (1970).

III. TITLE XIX AS A “SCHEME OF COOPERATIVE FEDERALISM”

A. Areas of state discretion

Both parties agree with the district court that Title XIX, like AFDC, is a system of “cooperative federalism.” Doe v. Wohlgemuth, supra at 184. The congressional desire to give the states considerable latitude in the administration of Title XIX is apparent throughout the statute. Funds are appropriated “[f]or the purpose of enabling each State, as far as practicable under the conditions in such State,” to furnish medical assistance and other services. ' 42 U.S.C.A. § 1396 (1974) (emphasis added). The states are free to choose whether they will participate at all; a participating state’s program can cover only the “categorically needy,” § 1396(a)(10); 45 C.F.R. 249.10(a)(1) (Rev.Ed., Oct. 1, 1973); or it can be extended to include the “medically needy” as well. Section 1396(a)(10)(C); 45 C.F.R. § 249.10(a)(1).¹⁰ If a state extends coverage to the medically needy, it can either give the types of care and services listed in clauses (1) through (5) of § 1396d(a) or give any seven of the types of care and services described in clauses (1) through (16) of § 1396d(a).¹¹ Section 1396a(a)(13)(C). The statute literally abounds with other options which are open to the participating states, all of which should help to tailor the state’s program to the needs and conditions in that state, as contemplated in the appropriations section quoted above.

B. Explicit statutory limitations on state discretion

The story does not end with the litany of state discretion in A above. Many other provisions of the statute are designed to channel the state’s program in directions which are consistent with the basic congressional objective of furnishing “medical assistance on behalf of families . . . whose income and resources are insufficient to meet the costs of necessary medical services.” § 1396.

1. Required services

Although the states were given a choice of services to provide to the medically needy, Congress requires the participating states to provide services (1) through (5) in § 1396d(a) to the categorically needy. § 1396a(a)(13)(B). Those services are the following:

“(1) inpatient hospital services; (2) outpatient hospital services; (3) other laboratory and X-ray services; (4) skilled nursing facility services, screening and diagnosis of children, family planning services and supplies furnished to individuals of child bearing age; and (5) physicians’ services furnished by a physician whether in the office, patient’s home, hospital or elsewhere.”

Doe v. Wohlgemuth, supra at 183.

2. Equality requirements

Another section of the Act requires the assistance made available to the categorically needy to be equitably distributed, and to be equal to the assistance made available to the medically needy:

“(a) A State plan for medical assistance must—

(10) provide—

(A) for making medical assistance available to all individuals receiving aid or assistance under any plan of the State approved under subchapter I, X, XIV, or XVI, or part A of subchapter IV of this chapter, or with respect to whom supplemental security income benefits are being paid under subchapter XVI of this chapter;

(B) that the medical assistance made available to any individual described in clause (A)—

(i) shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual, and

(ii) shall not be less in amount, duration, or scope than the medical assistance made available to individUals not described in clause A; and

(C) if medical assistance is included for any group of individuals who are not described in clause (A) and who do not meet the income and resources requirements of the appropriate State plan, or the supplemental security income program under subchapter XVI of this chapter, as the case may be, as determined in accordance with standards prescribed by the Secretary—

(i) for making medical assistance available to all individuals who would, except for income and resources, be eligible for aid or assistance under any such State plan or to have paid with respect to them supplemental security income benefits under subchapter XVI of this chapter, and who have insufficient (as determined in accordance with comparable standards) income and resources to meet the costs of necessary medical and remedial care and services, and

(ii) that the medical .assistance made available to all individuals not described in clause (A) shall be equal in amount, duration, and scope;

Section 1396a(a)(10) (emphasis added).

C. General limitations on state discretion

1. Economy

In addition to the above express limitations on state prerogatives, the Act and its history include more general statements of purpose. These also are binding upon the participating states. Section 1396a(a)(17)(A) requires state-adopted standards for the receipt of benefits to be “consistent with the objectives of this subchapter [Title XIX].” See also King v. Smith and Rosado v. Wyman, supra.

Section 1396a(a)(30) requires the states to take such steps “as may be necessary to safeguard against unnecessary utilization of care and services.” This same emphasis upon payment for “necessary” medical services is reflected in § 1396, the appropriations section, which states that the purpose of the Act is “to furnish (1) medical assistance on behalf of families . . . whose income and resources are insufficient to meet the costs of necessary medical services.” Similar language appears in the definition in § 1396a(a)(10)(C)(i) of the medically needy.¹² Limiting payments to those services which are “necessary” is also supported by recent amendments to Title XIX, which evidence a strong congressional interest in economy.¹³

2. Physicians’ discretion

It is also apparent that Congress intended to place the primary authority for determining what treatment a particular recipient requires in the hands of the attending physician. The Senate Committee on Finance, which in 1965 reported favorably on the amendments to the Social Security Act that included the creation of Title XIX, wrote:

“3. General Provisions Relating to the Basic and Voluntary Supplementary Plans

“(a) Conditions and limitations on payment for services

“(1) Physicians’ role

“The committee’s bill provides that the physician is to be the key figure in determining utilization of health services — -and provides that it is a physician who is to decide upon admission to a hospital, order tests, drugs and treatments, and determine the length of stay.”

S.Rep.No.404, 89th Cong., 1st Sess., 1965 U.S.Code Cong. & Admin.News, pp. 1943, 1986. Although these remarks referred to the amendments to Medicare (Title XVIII), Congress understood Medicaid (Title XIX) as an expansion of the Medicare concept. The same Committee wrote:

“The committee bill is designed to liberalize the Federal law under which States operate their medical assistance programs so as to make medical services for the needy more generally available. To accomplish this objective, the committee bill would establish, effective January 1, 1966, a new title in the Social Security Act — ‘Title XIX: Grants to the States for Medical Assistance Programs.’ ”

Id. at p. 2014. Thus, in Roe v. Norton, 380 F.Supp. 726 (D.Conn.1974), the court discerned “the basic philosophy of both the Medicare and Medicaid provisions, which emphasizes the wide discretion to be accorded physicians in treating their patients.” Id. at 729.¹⁴

We must conclude that although Title XIX involves a system of “cooperative federalism,” the congressional hand has been rather heavy in circumscribing the area of state prerogative.

IV. THE PENNSYLVANIA REGULATIONS’ CONSISTENCY WITH TITLE XIX

Pennsylvania argues that its abortion regulations pursue congressional objectives. The state relies on the congressional mandate, noted above, to provide only necessary services, arguing that its regulations restrict payments for abortions to those which are “necessary,” excluding those which are “elective.” The argument proves too much. It is undoubtedly true that at the time a woman chooses to have a non-therapeutic abortion there is a greater quantum of personal freedom than at the time she has a therapeutic abortion or goes into labor. But there is also greater freedom of choice involved when one decides to have a tooth cavity filled than when one is forced to have the tooth extracted after it has abscessed. The state could not require Title XIX beneficiaries to await the abscess and undergo the extraction¹⁵ without damaging the broad purposes of Title XIX. And it is inconsistent with § 1396a(a)(10)(B) and (C), which requires equality among beneficiaries, to force pregnant women to use the least voluntary method of treatment, while not imposing a similar requirement on other persons who qualify for aid.

The plaintiffs, on the other hand, place their reliance on the sections of the statute which require Pennsylvania to furnish them physicians’ services, inpatient hospital services, outpatient services, and family planning services.¹⁶ Because Pennsylvania has chosen to extend coverage to the medically needy, and has chosen not to exercise its option under § 1396a(a)(13)(C)(ii) subsection (13)(C)(i) requires Pennsylvania to extend the services listed in the text to those plaintiffs who are on Public Assistance. For this reason, the plaintiffs are correct in arguing that the state is required to furnish all of them — both those who are categorically needy and those who are medically needy — the listed services.

In both the statute and the regulations of the Department of Health, Education and Welfare, physicians’ services are defined by reference to the legal practice of medicine under state law. See § 1396d(a)(5), referring to § 1395x(r)(l); 45 C.F.R. § 249.10(b)(5) (Rev. ed., Oct. 1, 1973). Since Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), required the states to legalize the practice of elective abortion during the first two trimesters of pregnancy, the plaintiffs argue that elective abortion is now included in the definition of “physicians’ services,” and is therefore required to be furnished to the plaintiffs by § 1396a(a)(13)(B) and (C).¹⁷ Similar arguments are advanced under the rubrics of “inpatient hospital services,” “outpatient hospital services,” and “family planning services.”

Again, the argument proves too much. Elective cosmetic surgery, for example, is within the licensed practice of medicine in most, if not all, states. If the plaintiffs were correct, the state would be required to pay for such procedures, at the expense, perhaps, of many pressing medical needs of the poor.¹⁸ While § 1903(e) of the original Act may have required the eventual funding of such procedures,¹⁹ its repeal indicates that Congress has no present intention of funding every procedure which falls within the legal practice of medicine. The states are given broad discretion to tailor their programs to their particular needs, and are required to economize and to fund only necessary medical expenses.

The problem for this court is to harmonize the various competing policies found in the Act and its history. A participating state should be able to adapt its program to its conditions and needs, and to limit the level of its Medicaid expenditures. This can be accomplished by giving the state broad discretion to define the medical conditions for which treatment is “necessary” within the meaning of the Act.²⁰ The proper treatment of such a condition, on the other hand, must be left to the judgment of the attending physician.²¹ See Roe v. Norton, supra at 729. Vesting such discretion in the physician is consistent with congressional objectives, see p. 618, supra; it is also a logical prerequisite to any program intended to bring valid medical assistance to the needy.²² See § 1396a(a)(19) (requiring states to safeguard “the best interests of the recipients”).

Of course, some regulation of the methods of treatment is reasonable, and unavoidable. But the state should be required to show that, on balance, the policies of Title XIX support the regulations in question. See Doe v. Rose, 499 F.2d 1112, 1114 (10th Cir. 1974) (“the respective states are empowered to impose reasonable standards for carrying out the objectives of the federal program”) (emphasis added). Under § 1396a(a)(19), for example, the state might require some procedures to be performed in hospitals, to protect the medical interests of the recipients. Or, pursuant to the congressional interest in economization, the state might require doctors to prescribe generic drugs rather than brand names, provided, of course, that this would, in the particular instance, be consistent with sound medical practice. Gratuitous interference with medical decisions by doctors, on the other hand, would create a system of medical obstruction, rather than of medical assistance.

Applying the above analysis to the Pennsylvania regulations before us, we find them to be inconsistent with the Act. Since the Commonwealth of Pennsylvania pays for full-term deliveries and also for therapeutic abortions, it is plain that the state has determined, in its discretion, that pregnancy is a condition for which medical treatment is “necessary” within the meaning of Title XIX. The next question is whether some justification can be found in the statute for preventing an attending physician from choosing non-therapeutic abortion as the method for treating a pregnancy.²³ We can find none. Economy will not do, since in most cases non-therapeutic abortion is the cheapest method of treatment. See Doe v. Rose, supra at 1116-17, citing Klein v. Nassau Cty. Med. Ctr., supra note 12; Doe v. Wohlgemuth, supra at 187. Nor will protection of the recipient’s health, under § 1396a(a)(19) suffice; the state itself admitted at oral argument that non-therapeutic abortion is the least dangerous alternative for the pregnant woman, at least during the first trimester. See Roe v. Wade, supra, 410 U.S. at 163, 93 S.Ct. 705. Not only are the state’s abortion regulations not justified by any statutory policy, but they also run directly counter to § 1396a(a)(10)(B) and (C), since the “least voluntary method of treatment” requirement which the regulations impose on pregnant women is imposed on no other class of recipient. We therefore conclude that once the state has decided to finance full-term delivery and therapeutic abortion as methods for the treatment of pregnancy, it cannot decline to finance non-therapeutic abortions without violating the requirements of Title XIX. Since the decisions of the Supreme Court have forced the states to include elective abortion in the legal practice of medicine through the second trimester of pregnancy,²⁴ we also hold that the statute requires Pennsylvania to fund abortions through the end of the second trimester.²⁵

V. CONTRARY ARGUMENTS REJECTED

In reaching the above conclusion, we are not unmindful that other courts have. found state provisions like Pennsylvania’s to be consistent with the statutory scheme. In Roe v. Ferguson, 515 F.2d 279 (6th Cir. 1975), the Sixth Circuit reversed a district court’s holding that Title XIX requires state funding for elective abortions. The court wrote:

“There is no indication that Congress intended to require the furnishing of abortion services not required for the preservation of the health of the woman at a time when the performance of such abortions was illegal in most jurisdictions. In view of the disfavor shown toward abortions in other legislation, we are reluctant to infer that Congress intended to include required coverage for such controversial services without even mentioning the subject. When Congress passed the Family Planning Services and Research Act of 1970, 42 U.S.C. §§ 300a et seq. providing funds to states opting to participate in creating comprehensive programs of family planning services, abortion was specifically excluded as a means of family planning to be recognized under the Act. 42 U.S.C. § 300a — 6.

“In establishing the Legal Services Corporation system, Congress again provided that no funds of the Corporation could be used for legal assistance for those seeking to procure a nontherapeutic abortion. 42 U.S.C. § 2996f(b)(8).”

Id. See also Doe v. Rose, supra at 1114— 15 (“preferring]” to decide the case on constitutional grounds in light of the Act’s silence on the abortion question); Doe v. Wohlgemuth, supra. We find none of these arguments to be persuasive. It is impossible to believe that in enacting Title XIX Congress intended to freeze the medical services available to recipients at those which were legal in 1965. Congress surely intended Medicaid to pay for drugs not legally marketable under the FDA’s regulations in 1965 which are subsequently found to be marketable. We can see no reason why the same analysis should not apply to the Supreme Court’s legalization of elective abortion in 1973. The inference which the Sixth Circuit drew from legislation in which Congress prohibited expenditure for non-therapeutic abortions also seems unwarranted. Congress could have proscribed payment for elective abortions when it passed the Family Planning Services and Research Act of 1970, or in 1972 when it amended Title XIX, but it did not do so. See Comment, supra note 14, at 933 n.80. Furthermore, abortions are hardly a desirable method of family planning; this consideration may explain the provisions of the Family Planning Services and Research Act relied upon by the Sixth Circuit.

VI. CONCLUSION AND DISTRICT COURT ACTION ON REMAND

For the foregoing reasons, the plaintiffs are entitled to a declaratory judgment declaring that the Pennsylvania regulations are inconsistent with Title XIX of the Social Security Act, 42 U.S. C.A. § 1396 et seq., during the first and second trimesters of pregnancy.

In Hagans v. Lavine, supra, 415 U.S. at 543-44, 94 S.Ct. 1372, the Supreme Court pointed out that a single district judge can grant both declaratory and injunctive relief on statutory grounds in a case such as this, using this language (415 U.S. 543, 94 S.Ct. 1382):

“Given a constitutional question over which the District Court had jurisdiction, it also had jurisdiction over the ‘statutory’ claim. See [supra, at 536]. The latter was to be decided first and the former not reached if the statutory claim was dispositive. [Citing cases.] The constitutional claim could be adjudicated only by a three-judge court, but the statutory claim was within the jurisdiction of a single district judge. [Citing cases.] Thus, the District Judge, sitting alone, moved directly to the statutory claim. His decision was appealed to the Court of Appeals, although had a three-judge court been convened, an injunction issued, and the statutory ground alone decided, the appeal would be only to this Court under 28 U.S.C. § 1253.”

The court went on to state at 543-45, 94 S.Ct. at 1382:

“The procedure followed by the District Court — initial determination of substantiality and then adjudication of the ‘statutory’ claim without convening a three-judge court— . accurately reflects the recent evolution of three-judge-court jurisprudence

“It is true that the constitutional claim would warrant convening a three-judge court and that if a single judge rejects the statutory claim, a three-judge court must be called to consider the constitutional issue. Nevertheless, the coincidence of a constitutional and statutory claim should not automatically require a single-judge district court to defer to a three-judge panel, which, in view of what we have said in Rosado v. Wyman, supra, could then merely pass the statutory claim back to the single judge. [Citing cases.] ‘In fact, it would be grossly inefficient to send a three-judge court a claim which will only be sent immediately back. This inefficiency is especially apparent if the single judge’s decision resolves the case, for there is then no need to convene the three judge court.’ [Citing case.] Section 2281 does not forbid this practice, and we are not inclined to read that statute ‘in isolation with mutilating literalness . . .

We have quoted the foregoing because we hold at this time that the majority opinion in Murrow v. Clifford, 502 F.2d 1066 (3d Cir. 1974), will not be followed insofar as it is inconsistent with (a) part II of Hagans v. Lavine, supra,26 and (b) this opinion.

Because of our power to modify the May 28, 1974, Supplemental Order of the district court under 28 U.S.C. § 2106, we will direct that it be modified to read as follows, and the case will be remanded to the district court so that the three-judge court can be dissolved, the assigned district judge to take any further action required consistent with this opinion:

“ . . . IT IS HEREBY ADJUDGED AND DECREED that the Regulations and Procedures of the Department of Public Welfare of the Commonwealth of Pennsylvania, as they apply to reimbursement for abortions performed within the first two trimesters of pregnancy, áre invalid because they are inconsistent with Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. In all other respects, Plaintiffs’ Requests for Declaratory Judgment are denied.”

Costs shall be taxed against defendant-appellants at No. 74-1726.

Footnotes

1

. The plaintiffs sought both injunctive and declaratory relief. The district court granted a declaratory judgment for plaintiffs, but denied injunctive relief. Since the plaintiffs have not appealed the district court’s denial of injunctive relief, this court has appellate jurisdiction. Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970); 28 U.S.C. §§ 1253, 1291. The caption was changed to Doe v. Beal, pursuant to F.R.Civ.P. 25(a)(1), after the appeal had been docketed in this court.

2

. See note 16 below for further description of the named plaintiffs. The district court declined to certify the plaintiffs as representatives of a class. Doe v. Wohlgemuth, supra at 181-82. The plaintiffs have not appealed the refusal to grant them class-action status.

3

. After the district court’s order was entered in the case before us, the Commonwealth of Pennsylvania enacted an “Abortion Control Act,” Act No. 209, Sess. of 1974, 35 P.S. § 6601 et seq. (Purdon’s Pa.Legis.Serv. No. 4), effective date October 10, 1974. Like the regulations before us, but through rather different language, § 7 of The Abortion Control Act restricted state subsidy of elective abortions. The enforcement of § 7, together with certain other provisions of the same Act, was preliminarily enjoined by a three-judge district court in the Eastern District of Pennsylvania on October 10, 1974. Planned Parenthood Ass’n of Southeastern Pa., Inc. v. Fitzpatrick, Civ. No. 74-2440 (E.D.Pa., Oct. 10, 1974).

At oral argument, we asked counsel for the Commonwealth whether the Abortion Control Act had superseded the regulations at issue in this suit. He represented that the Act had not, and that the Commonwealth intended to enforce the regulations independently of the fate of the Abortion Control Act. For this reason, we have concluded that this suit has not been mooted by passage of the Abortion Control Act. Cf. Abele v. Markle, 369 F.Supp. 807, 809 (D.Conn.1973).

4

. 62 P.S. § 403 (1968) empowers the Department to establish “regulations, rules, and standards” as to the eligibility for assistance.

5

. Where code sections are referred to in this opinion without accompanying title references, “42 U.S.C.A. § - (1974)” will be implicit.

6

. The defendants in the case before us do not deny that the plaintiffs’ constitutional arguments are sufficiently meritorious to confer jurisdiction on the district court under § 1343(3). In view of the federal lower court decisions holding unconstitutional regulations similar to the Pennsylvania procedures now before this court, the constitutional “claim . . . [is] of sufficient substance to support federal jurisdiction [under 28 U.S.C. § 1343(3)].” Hagans v. Lavine, supra at 536, 94 S.Ct. at 1378. See, e. g., Wulff v. Singleton, 508 F.2d 1211 (8th Cir. 1974); Doe v. Westby, 383 F.Supp. 1143 (D.S.D.1974), and cases cited therein at 1145, vacated and remanded for further consideration in light of Hagans v. Lavine, supra, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1975).

7

. The March 17, 1975, order of the Supreme Court (No. 74-684) reads, inter alia, as follows;

“The judgment is vacated and the case is remanded to the United States District Court for the District of South Dakota for further consideration in light of Hagans v. Lavine, 415 U.S. 528, 543-545 [94 S.Ct. 1372, 39 L.Ed.2d 577] (1974).”

In Doe v. Westby, the district court’s failure to address the statutory question may be explained by the parties’ failure to raise it. See Doe v. Westby, supra at 1144.

8

. Circuit Judge Weis dissented. 376 F.Supp. at 192.

9

. In Rosado, the Court struck down the New York legislation, even though no express language in § 402(a)(23) required that result:

“These conclusions, if not compelled by the words of the statute or manifested by legislative history, represent the natural blend of the basic axiom — that courts should construe all legislative enactments to give them some meaning — with the compromise origins of § 402(a)(23), set forth above.”

Rosado, supra 397 U.S. at 415, 90 S.Ct. át 1219. See also King v. Smith, supra, 392 U.S. at 332, 88 S.Ct. at 2141 (relying on “[t]he pattern of this legislation,” and “[t]he underlying policy and consistency in statutory interpretation”).

10

. The phrases “categorically needy,” referring to categories of recipients described in § 1396a(a)(10)(A), and “medically needy,” referring to recipients described in § 1396a(a)(10)(C), appear in the Regulations. 45 C.F.R. § 249.10(a)(1) (Rev.ed., Oct. 1, 1973). The categorically needy are persons receiving aid or assistance under Titles I, X, XVI, Part A of Title IV, and persons receiving supplemental income benefits under Title XVI. § 1396a(a)(10)(A). The medically needy are persons who are not described in § 1396a(a)(10)(A) “and who do not meet the income and resources requirements of the appropriate State plan, or the supplemental security income program under subchapter XVI of this chapter, as the case may be, as determined in accordance with standards prescribed by the Secretary — (i) for making medical assistance available to all individuals who have insufficient income and resources to meet the costs of necessary medical and remedial care and services . . . .” § 1396a(a)(10)(C).

Pennsylvania provides services to the “medically needy.” 62 P.S. § 441.1 reads as follows:

“The following persons shall be eligible for medical assistance:

“(1) Persons who receive or are eligible to receive cash assistance grants under this article;

“(2) Persons who meet the eligibility requirements of this article for cash assistance grants except for citizenship durational residence and any eligibility condition or other requirement for cash assistance which is prohibited under Title XIX of the Federal Social Security Act; and

“(3) The medically needy.”

This last phrase is not otherwise defined, except by 62 P.S. § 442.1:

“A person shall be considered medically needy if he:

“(1) Resides in Pennsylvania, regardless of the duration of his residence or his absence therefrom; and

“(2) Meets the standards of financial eligibility established by the department with the approval of the Governor. In establishing these standards, the department shall take into account (i) the funds certified by the Budget Secretary as available for medical assistance for the medically needy; (ii) pertinent Federal legislation and regulations; and (iii) the cost of living.”

11

. PMAP extends coverage to the medically needy, giving them services (1) through (5) the same care and services as it is required to give the categorically needy. Doe v. Wohlgemuth, supra at 182-83.

12

. Two district courts agree with the conclusion that Congress intended to fund only “necessary” medical expenses. Roe v. Ferguson, 389 F.Supp. 387 (S.D.Ohio, 1974), rev’d, 515 F.2d 279 (6th Cir., 1975); Klein v. Nassau Cty. Med. Ctr., 347 F.Supp. 496, 499 (E.D.N.Y.1972), vacated and remanded for further consideration in light of Roe v. Wade and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). A third district court was more troubled by the absence of “necessary” as a limitation on available medical services. Roe v. Norton, D.C., 380 F.Supp. 726, at 728-29. The Roe v. Norton court appears to have overlooked § 1396a(a)(31), but it made the important observation that Medicare (Title XVIII) excludes payment for services “which are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member.” 42 U.S.C.A. § 1395y(a)(l) (1974). Roe v. Norton, supra at 729. The court found the legislative history of Medicare and Medicaid to support “a common interpretation of both titles.” Id.

13

. See note 14 below.

14

. The original Act required participating states to move toward, and eventually to furnish, “comprehensive care and services to substantially all individuals who meet the plan’s eligibility standards with respect to income and resources,” Social Security Amendments of 1965, Title XIX, § 1903(e), 79 Stat. 350. In response to the rapidly inflating cost of medical services, this section was repealed in 1972, Social Security Amendments of 1972, Title II, § 230, 86 Stat. 1410, but Congress made clear that in repealing § 1903(e) it did not mean to alter the essential goals of the Medicaid system:

“Your committee also concluded that there is no simple or single solution to the problems now existing in the health care field which adversely affect these programs. But your committee does believe that there are modifications which can and should be made in these programs — changes which, while perhaps not very significant taken sin-~'y, as a whole, show gr t promise for making significant advances in accomplishing the goal of making these programs more economical and more capable of carrying out their original purposes.”

H.R.Rep.No.92-231, 92nd Cong., 2d Sess., 1972 U.S.Code Cong. & Admin.News, pp. 4989, 4994. See Comment, Abortion on Demand in a Post- Wade Context: Must the State Pay the Bills?, 41 Fordham L.Rev. 921, 932 (1973). It is, therefore, proper to conclude that the original purpose of protecting the physician’s discretion in treatment was not intended to be altered by the 1972 repeal of § 1903(e). The 1972 amendments do, however, demonstrate a congressional intent that the Medicaid funds be used in the most economical manner possible.

15

. We make this argument for illustrative purposes only. Although dental services may be provided under Medicaid, § 1396d(a)(10), Pennsylvania does not do so. See note 11, supra.

16

. The district court opinion does not indicate whether all the plaintiffs are categorically needy. On reading the complaint and accompanying affidavits, we have found that six of the 11 named plaintiffs receive AFDC, while five receive “Public Assistance.” AFDC is part A of Title IV; its recipients are therefore “categorically needy” and the state must provide them with services (1) through (5) of § 1396d(a). §§ 1396a(a)(10)(A) and (13)(B). The services listed in the text are clauses (5), (1), (2), and (4)(C), respectively, of § 1396d(a). The plaintiffs receiving Public Assistance, on the other hand, are not categorically needy, but only medically needy. The state could, therefore, deny them Medicaid altogether or provide services other than those listed in the text. See pp. 616-617, supra. Nevertheless, Pennsylvania extends equal coverage to the medically and categorically needy. See note 11, supra.

17

. See note 15, supra. A similar argument appears in Comment, supra note 14, at 937, n. 106.

18

. New York’s Medicaid program, for example, appears to exclude elective cosmetic surgery. See Klein, supra note 12, at 500. We have not been apprised whether Pennsylvania’s does so or not.

19

. See note 14, supra.

20

. This court is not the first one to relate “necessary” to the conditions to be treated, rather than to the choice of treatment. See Roe v. Norton, supra at 729, Klein v. Nassau Cty. Med. Ctr., supra note 12, at 500.

21

. The range of the doctor’s discretion is in turn defined by each state’s definition of the legal practice of medicine. See p. 620, supra.

22

. In the Amicus Curiae Memorandum of the United States, filed in New York, etc. v. Klein et al., 412 U.S. 925, 93 S.Ct. 2747, 37 L.Ed.2d 152 (1973), and relied on extensively in Judge Kalodner’s dissent, this language appears at pages 7-8:

“But the state appellants have properly refused to intrude on the physician’s judgment; they are completely ‘guided by the ruling of the woman’s physician as to whether an abortion is medically indicated’ (J.S. 11). Thus the state appellants, in administering the New York medicaid program, simply treat abortions in the same manner as other medical services: they defer to the medical judgment of the attending physician. If in the judgment of the patient’s physician a particular medical service — whether an abortion or an appendectomy — is advisable to preserve health, that medical service is covered by the New York medicaid program.

“The court below misunderstood the crucial role played by the woman’s physician in the New York scheme. . . . [T]he district court simply assumed that the abortions sought were not medically indicated (J.S.App. A, 4a), but this was a medical judgment which the court was not in a position to make. Contrary to the court’s assumption, it is possible that an attending physician would have concluded that an abortion was medically indicated with respect to one or more of the appellees.

“At bottom, therefore, appellees’ argument apparently is that the Social Security Act requires reimbursement of the costs of all medically feasible abortions performed merely upon the demand of pregnant women. We see no statutory basis for this contention. An abortion is a serious medical matter which requires an exercise of medical judgment. A state need not provide medical assistance with respect to other medical services — such as, for example, a tonsillectomy — merely upon the patient’s own request, and there is no apparent reason why abortions should be treated differently.”

The Memorandum also quoted from Doe v. Bolton, supra, and Roe v. Wade, supra, as follows at pp. 8-9:

“Our conclusion is reinforced by this court’s recent statements concerning the nature of the medical judgment here in question and the importance of that judgment to the expectant mother. In Doe v. Bolton, No. 70—40, decided January 22, 1973, slip op. at 11-12 [410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201], the Court stated:

‘ * * * the medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.’

“And in Roe v. Wade, No. 70-18, decided January 22, 1973, slip op. at 49 [410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147], the Court emphasized the critical importance of the attending physician’s role by concluding that, as a constitutional matter, during the first trimester of pregnancy ‘the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.’ We agree that the role of the attending physician is and should be an important one, and we therefore believe that the state appellants have acted reasonably in preserving that role under the medicaid program.”

If the plaintiffs’ physicians do not approve their desired abortions, such abortions will not qualify under Title XIX. The procedures, with their requirements for examination by two additional physicians, as well as the physician of each plaintiff, etc., are clearly not supported by the above Memorandum.

Also, the M.S.A. of HEW policy, set forth in note 5 at 376 F.Supp. 179 and at 1 CCH Medicare and Medicaid Guide ¶] 14,511, also relied on in Judge Kalodner’s dissent (see, for example, note 18 at page 16), does not support such procedures. It is noted that [] 14,515 of 1 CCH Medicare and Medicaid Guide, entitled “Equality of Medical Care,” contains this wording of CCH, inter alia:

“The regulations (Reg. § 249.10(a)(6), 'll 21,610) provide that the medical and remedial care and services made available to any categorically needy individual included under the plan will not be less in amount, duration, or scope than those made available to other individuals included under the program.....”

23

. As stated by the Supreme Court in Doe v. Bolton, supra, 410 U.S. at 192, 93 S.Ct. at 747:

“Whether . . . ‘an abortion is necessary’ is a professional judgment that the physician will be called upon to make routinely.”

24

. See Roe v. Wade, supra, 410 U.S. at 164, 93 S.Ct. 705; see also note 21, supra.

25

. Because the medical risk to a pregnant woman is somewhat enhanced during the second trimester, see Roe v. Wade, supra at 163, 93 S.Ct. 705, the state might require second trimester abortions funded by PMAP to be performed under physical conditions — e. g., in a hospital — which protect the health of the aborting woman. § 1396a(a)(19). See also Roe v. Wade, supra at 163, 93 S.Ct. 705; Doe v. Bolton, supra, 410 U.S. at 194-95, 93 S.Ct. 739.

26

. Cf. Philbrook v. Glodgett, 421 U.S. 707, at 712, note 8, 95 S.Ct. 1893, 44 L.Ed.2d 525 (1975).