Doe v. O'Bannon

91 F.R.D. 442, 32 Fed. R. Serv. 2d 1391, 1981 U.S. Dist. LEXIS 14837
CourtDistrict Court, E.D. Pennsylvania
DecidedJuly 10, 1981
DocketCiv. A. No. 81-0555
StatusPublished
Cited by8 cases

This text of 91 F.R.D. 442 (Doe v. O'Bannon) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doe v. O'Bannon, 91 F.R.D. 442, 32 Fed. R. Serv. 2d 1391, 1981 U.S. Dist. LEXIS 14837 (E.D. Pa. 1981).

Opinion

MEMORANDUM OPINION

BECHTLE, District Judge.

This action was originally brought as a challenge to the Pennsylvania Department of Public Welfare’s proposed regulations reducing the coverage of abortions funded under the Pennsylvania Medical Assistance Program. See Pa.Stat.Ann. tit. 62, §§ 441.-1 — 447. The complaint was later amended to include a First Amendment claim based on the Free Exercise Clause which challenged the constitutionality of the abortion funding statute, Pa.Stat.Ann. tit. 62, § 453. On July 2, 1981, the Court ordered that the First Amendment claim be dismissed for lack of standing and denied plaintiffs’ separate motions for a preliminary injunction and a class determination based on the First Amendment claim. This memorandum sets forth the reasons for that order.

I. FACTS

In January, 1981, the Pennsylvania Department of Public Welfare (“DPW”) sent a notice to all medical assistance recipients which announced the proposed reduction in the coverage of abortions under the medical assistance program to take effect on February 15,1981. This reduction in benefits was in direct response to Pennsylvania’s passage of a new state law which limited the public funding of abortions to those in which a physician certifies that the life of the mother would be endangered if the pregnancy were carried to full term, and cases involving rape or incest. Act of December 19, 1980, P.L. 1321, No. 239, § 1, Pa.Stat.Ann. tit. 62, § 453 (Purdon Supp. 1981-1982).1 [444]*444Counsel stipulated that, prior to this statute, medical assistance was available for all “medically necessary” abortions.

On February 12, 1981, plaintiffs, Jane Doe, Philadelphia Welfare Rights Organization, Exzeal Palmer, John Franklin, M.D., Planned Parenthood Association of Southeastern Pennsylvania, Inc., Elizabeth Blackwell Health Center for Women, and Women Organized Against Rape, filed an action seeking to enjoin DPW from implementing the proposed reductions in publicly funded abortions. Plaintiffs first contended that the proposed reduction in medical assistance benefits violated due process because the proposed changes were to be implemented without notice and a full opportunity for a hearing. Secondly, plaintiffs contended that the implementation of the proposed changes without prior publication of the proposed regulations and an opportunity for public comment, violated both federal and state regulations requiring such notice. See 42 C.F.R. § 431.12 (participation of State Medical Assistance Advisory Committee in proposed changes required); 42 C.F.R. §§ 431.200-242 (1980) (hearing and notice for assistance applicants and recipients required); 42 C.F.R. § 447.205 (1980) (sixty day public notice of proposed changes in Medicaid benefits required); Pa.Stat. Ann. tit. 45, §§ 1102-1208 (Purdon Supp. 1981-1982) (notice and public comment required for promulgation and adoption of regulations); Pa.Stat.Ann. tit. 71 § 232 (Purdon Supp. 1981-1982) (fiscal note required with respect to proposed agency actions). Thirdly, plaintiffs contended that certain specific regulations were not authorized by the language of the newly enacted statute: those which excluded victims of interspousal rape from coverage; those which required that, in order to obtain coverage for resulting abortions, other acts of rape be reported to law enforcement officials or public health services within seventy-two hours after the incident, and that acts of incest be reported within seventy-two hours after a physician had notified the victim that she was pregnant. Finally, plaintiffs contended that the various regulations and policies requiring documentation for the payment of services, the institution of hearing procedures, and various notification requirements, violated due process.

On February 13, 1981, the Court granted plaintiffs’ motion for a temporary restraining order preventing the defendants from implementing the proposed reduction in abortion services until they complied with all federal and state requirements. This order was extended by agreement until such time as both parties sought a preliminary injunction hearing.

On April 23, 1981, plaintiffs filed an amended complaint which added Lynn Goldman as a party plaintiff. The amended complaint also contained the additional claim that the abortion funding statute, Pa.Stat.Ann. tit. 62, § 453, violated the Free Exercise Clause of the First Amendment. Succinctly stated, plaintiffs contended that the statute denied women, dependent upon medical assistance, the right to decide to have a medically necessary abortion where their religious beliefs so required.

On May 6, 1981, plaintiffs filed an uncontested motion for a class determination.' A brief hearing was held on that date with respect to the status of the case. At that hearing, the Court requested that briefs be submitted on whether plaintiff, Lynn Gold-, man, had standing to assert the First Amendment claim. On May 14, 1981, another hearing was held and both parties agreed to make a sincere effort to work out any remaining differences aside from the First Amendment issue.

On May 21, 1981, defendant, Gerald Radke, the Deputy Secretary for Medical Assistance, filed an affidavit setting forth the proposed regulations pertaining to the [445]*445funding of abortions under the medical assistance program. A hearing was held on May 27, 1981, at which time plaintiffs voiced their objections; in addition, Mr. David Feinberg, the Director of the Bureau of Medical Assistance Policy, testified with respect to the auditing procedures to be used by DPW in checking for fraud or misrepresentations by abortion providers, and with respect to the forms to be used by law enforcement and public health service agencies in handling reports of rape and incest.

On June 8,1981, an affidavit was filed by Barry A. Roth, the Director of the Office of Hearings and Appeals, confirming to the Court that all hearings arising in relation to the abortion regulations would be expedited and all appeals decided within thirty to sixty days after the date they were filed. A final hearing was held on June 10, 1981, at which time plaintiffs’ counsel informed the Court that all of the remaining statutory and due process claims had been successfully resolved. Therefore, the Court dissolved the temporary restraining order, except with respect to the First Amendment claim. At that same hearing, oral argument was heard with respect to the First Amendment issue.

II. THE FIRST AMENDMENT CLAIM

Lynn Goldman avers that she is thirty-five years old, suffers from terminal cancer, and is a member of the Jewish faith. On February 12, 1981, the date that the original complaint was filed, Ms. Goldman was in the first trimester of pregnancy. While consulting with her doctor, she was informed that, although her pregnancy, if carried to full term, could not be certified as life threatening, the pregnancy would still result in a significant impairment of her recovery from cancer. Ms.

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Bluebook (online)
91 F.R.D. 442, 32 Fed. R. Serv. 2d 1391, 1981 U.S. Dist. LEXIS 14837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-obannon-paed-1981.