Doe v. Kenley

584 F.2d 1362
Court of Appeals for the Fourth Circuit·Decided October 19, 1978·No. No. 78-1330·Published·Cited by 6 cases

Opinion

K. K. HALL, Circuit Judge:

The issue we decide in this appeal is a limited one: whether a state which has [1363] established a policy for the stated objective of eliminating state medical assistance (medicaid) funding for nontherapeutic abortions may implement that policy by using a policy standard which requires a physician to certify that “on the basis of [his] professional judgment the life of [the medicaid recipient] would be endangered if the fetus were carried to term.” We hold that it cannot and remand to the district court for entry of an order enjoining use of such a policy and physician’s certification standard and directing modification of that standard to make it conform to its stated policy objective until such time as the state may elect to officially change its medicaid funding policy.

“Janet Doe,” a pregnant Virginia medicaid recipient, brought a civil class action against various officials of the Commonwealth of Virginia to enjoin implementation of a policy of the Virginia State Board of Health by use of a standard which would tend to discourage physicians from performing abortions for medicaid recipients by eliminating reimbursement for all abortions other than those for which a physician could certify that the recipient’s life would be endangered if the fetus were carried to term. She alleged violations of the Social Security Act, Title XIX, 42 U.S.C.A. § 1396 et seq. (“Title XIX”) and the equal protection and due process clauses of the Fourteenth Amendment. A temporary restraining order was issued pending determination of the merits of her claim.

The policy in question is an amendment to the “State Plan 'for Medical Assistance” which was finally approved by the State Board of Health on November 30, 1977. The minutes of that meeting show that the amendment was “to limit the payment for abortions to only those instances in which the mother’s life was in danger.” The minutes of that meeting and a previous meeting held September 9, 1977, show that the amendment was made following public response to hearings held to discuss medicaid funding of abortions after Congress enacted a similar limitation on the use of federal funds for abortions.1 The amendment was approved against the recommendation of both the Governor’s Advisory Committee on Medicare and Medicaid and the staff of the Department of Health.

On March 20, 1978, a “Medicaid Memo” was issued to physicians and hospitals participating in the medicaid program setting forth the standard for reimbursement and the physician’s certification requirement which Doe finds objectionable.2 Subse[1364] quent to filing of her class action and entry of the temporary restraining order, the State Board of Health passed a resolution explaining its new funding policy. The resolution referred to unspecified Supreme Court rulings which recognized that states have some discretion in funding abortions through their medicaid programs and it stated that the policy amendment was made “because [the Board] desired and continued to desire to eliminate reimbursement for abortions for which there were no good medical reasons.” The resolution also stated that, while the new funding policy “permits the physician to consider [a woman’s health], as well as other factors affecting medical necessity,” the Board was opposed to use of any subterfuge in a physician’s certification that a patient needed an abortion, “particularly for insubstantial mental health, or familial, or social reasons in cases in which there is no immediate threat to the mother’s life.3

A hearing on the merits of Doe’s claim was held on May 16, 1978, at which the President of State Board of Health and the State Health Commissioner testified as to the purpose of the policy amendment and the interpretation which would be placed on it by the Commonwealth’s program administrators. Based upon the evidence presented and the arguments of counsel, the district court found that the purpose of the policy was to eliminate state funding of nontherapeutic abortions, that such a policy was permitted under Title XIX, Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977) and under the Constitution, Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), and that the policy directive contained in the resolution was clear. Thereupon, the temporary restraining order was vacated and Doe’s class action was dismissed.

Immediately following entry of the court’s order, the Commonwealth issued another “Medicaid Memo” which adopted the court’s findings of fact that the new funding policy permits the physician to consider the recipient’s “physical and mental health, as well as other factors affecting medical necessity.” It concluded by restating the previous requirement that a physician certify that, based upon his professional judgment, the life of the recipient would be endangered if the fetus were carried to term.4

[1365] Doe appeals the court’s decision, claiming that use of a policy standard and a certification requirement which speak in terms of endangerment of “life” rather than “health” belies the Commonwealth’s stated intent to eliminate reimbursement only for nontherapeutic abortions when its practical effect is to eliminate many medically necessary abortions from medical coverage. She asserts that Title XIX requires funding of all abortions which are determined by physicians to be medically necessary based upon their professional consideration of all medical factors, including the mental health of the recipient and the possibility of a recipient bearing a deformed child, as in the case of her exposure to German measles. She asserts that abortions following rape and incest should be included in medicaid coverage for eligible recipients. Also, she alleges that failure to fund medically necessary abortions for low income persons effectively denies them access to abortions in violation of their constitutional rights of privacy and equal protection and due process of law.

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Doe v. Kenley, 584 F.2d 1362 (4th Cir. 1978).

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Doe v. Kenley
584 F.2d 1362 (Fourth Circuit, 1978)