Roe v. Casey

623 F.2d 829

• Court: Court of Appeals for the Third Circuit
• Decided: April 18, 1980
• Docket: Nos. 79-1108, 79-1246 and 79-1247
• Status: Published

Opinions

OPINION OF THE COURT

GARTH, Circuit Judge.

This appeal calls upon us once again to deal with the difficult and controversial subject of abortion.¹ We are asked to decide whether two Pennsylvania statutes² contravene the requirements of Title XIX of the Social Security Act³ — the federal Medicaid law — inasmuch as the Pennsylvania enactments restrict state funding of “medically necessary” abortions. In addition, we must determine whether Congress, in enacting the so-called “Hyde Amendments” to several recent federal appropriations bills,⁴ effected substantive changes in the Medicaid law.

We conclude that the Hyde Amendment modifies Title XIX and thereby reduces the states’, and hence Pennsylvania’s, substantive obligations, but we find the Pennsylvania statutes to be at variance with even this lesser standard. As a reviewing court, we deem it inappropriate to redraft the Pennsylvania statutes so as to make them comply with federal law. Accordingly, having reached the same conclusion as the district court, albeit by a somewhat different approach, we affirm the district court’s order which enjoined the operation of Pennsylvania Public Laws 16A and 148 in their entire-ties.⁵

■ I.

In 1978 the Pennsylvania legislature enacted appropriation and substantive legislation which, in substantially identical terms, prohibited the Commonwealth from “pay[ing] for, mak[ing] reimbursement for, or otherwise . . . supporting] the performance of any abortion except where the abortion is certified in writing by a physician to be necessary to save the life of the mother.”6 (emphasis added). Plaintiffs, who include pregnant women eligible for Medicaid who are in need of therapeutic abortions, doctors who perform abortions, and health care agencies which provide abortion services, filed this class action under 42 U.S.C. § 1983 challenging the Pennsylvania laws on both statutory and constitutional grounds. They sought to enjoin the defendants, the Treasurer of the Commonwealth and the Secretary of the Department of Public Welfare, from refusing to fund medically necessary abortions for women whose pregnancies were not life endangering. In addition, they sought a declaration that the statutes were invalid.

The district court granted class certification and held that the plaintiffs had standing to bring the claims which they asserted.⁷ With respect to the merits of the plaintiffs’ complaint, the district court held that Title XIX:

requires participating states to provide all medically necessary services, including medically necessary abortions, to eligible participants of the program, and that Public Acts 16A and 148, by limiting Medicaid reimbursement to those abortions necessary to save the life of the mother, arbitrarily discriminate against medically necessary abortions on the basis of the diagnosis, type of illness or condition involved, in violation of the objective and requirements of Title XIX and its implementing regulations.

Roe v. Casey, 464 F.Supp. 487, 499-500 (E.D.Pa.1978). The district court did not reach the question of whether the Hyde Amendment modified or amended Title XIX. Rather, it held that because the Pennsylvania statutes were even more restrictive than the Hyde Amendment, they would be invalid even under a modified Title XIX. Therefore, based upon its interpretation of Title XIX, without reference to the Hyde Amendment, the district court entered an order enjoining the operation of the Pennsylvania statutes. Because it disposed of the case entirely on statutory grounds, the district court properly did not address the plaintiffs’ constitutional claims.

II.

The district court read Title XIX to require that Pennsylvania must fund all abortions which are “medically necessary.” The court relied upon the language of the statute which provides appropriations to enable each state “as far as practicable to furnish . medical assistance on behalf of individuals, whose income and resources are insufficient to meet the costs of necessary medical services.” 42 U.S.C. § 1396. The district court took note of the fact that standard abortion procedures “involve most, if not all” of the types or classes of services which are to be furnished to the categorically needy.⁸

The Courts of Appeals for the First and Seventh Circuits, when confronted with similar abortion funding issues, read Title XIX more narrowly than did the district court here. Preterm, Inc. v. Dukakis, 591 F.2d 121, 124-26 (1st Cir.), cert. denied, 441 U.S. 952, 99 S.Ct. 2182, 60 L.Ed.2d 1057 (1979); Zbaraz v. Quern, 596 F.2d 196, 198-99 (7th Cir. 1979).⁹ Both of those courts observed that the clause contained in the statute — “necessary medical services” — is limited to describing the beneficiaries of Title XIX — i e. individuals “whose income and resources are insufficient to meet the costs of necessary medical services.” 42 U.S.C. § 1396. Neither the First nor the Seventh Circuit was willing to interpret this language, which imports identification, as language imposing a substantive requirement on the states.

If we were obliged to resolve this difference in interpretation, we would favor the narrower approach taken by the First and Seventh Circuits. But unlike those courts we do not find it essential to resolve this question of statutory meaning in order to decide this case. If indeed the Hyde Amendment constitutes a substantive change to Title XIX, we should focus on the “amended Title XIX. Any other analysis of the original and unamended Title XIX, as it pertains to abortion, would then become unnecessary.

Thus, before addressing the scope of Title XIX generally, we turn to a consideration of the Hyde Amendment and whether that enactment has substantively amended Title XIX so as to specify and limit the abortions which may be funded under Medicaid.

III.

In each of the past four years, Congress has passed the so-called “Hyde Amendment” as a rider to the federal appropriations legislation.¹⁰ The version of the 1979 Hyde Amendment currently in effect for fiscal year 1980 provides as follows: ¹¹

See. 109. Notwithstanding any other provision of this joint resolution except section 102, none of the funds provided by this joint resolution 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;

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.

Our task is to determine whether the Hyde Amendment should be construed as an amendment to Title XIX. In that event, the Amendment would implicitly repeal a portion of that Title, thereby reducing the states’ obligations to fund abortions to only those specified by the Amendment.

The Appellees, in seeking our affirmance of the district court, and Judge Hunter in his concurring opinion, argue that the Hyde Amendment has no substantive effect on Title XIX. They assert that the plain language of the Hyde Amendment — “none of the funds provided by this joint resolution shall be used to perform abortions except .” — limits the impact of the provision solely to the use of federal funds. Thus, the Amendment, according to Appel-lees, would have no impact on the states’ obligations, to provide abortion services under Medicaid. They contend that we should not look behind this plain language in order to find any change with respect to the states’ obligations to make expenditures under the Medicaid Act. In addition, they argue that established canons of statutory construction counsel against finding that a substantive statute has been repealed by an appropriations act. Similar arguments were rejected by the First Circuit in Preterm, Inc. v. Dukakis, supra, by the Seventh Circuit in Zbaraz v. Quern, supra, and by the Eighth Circuit in Hodgson v. Board of County Commissioners, supra.12 We agree with the First, Seventh and Eighth Circuits that the Hyde Amendment does indeed modify Title XIX, and is not to be construed as a mere withholding of federal funds.

The constructiqn urged by Appellees leads to a result which is not consonant with the policies of the Medicaid Act. Title XIX is based upon a scheme of “cooperative federalism.” The Medicaid statute envisions that the costs of medical services will be shared between the states and the federal government. See 42 U.S.C. § 1396b. If the Appellees are correct, and the Hyde Amendment only withholds federal funds and does not otherwise affect Title XIX, then the entire cost of funding Medicaid abortions would have to be borne by the states. Appellees do not point to, and we cannot find, any other Medicaid service which is, by design, entirely state funded.¹³ Therefore, because the literal language of the Hyde Amendment, which is limited to expenditures of federal funds, seems at odds with the entire structure of the Medicaid statute, we must look behind the language of the Act to determine if this unique result was, in fact, intended by Congress.

In this case, the clearest evidence of legislative intent is found in the Congressional floor debates.¹⁴ The Congressional debates on the previous versions of the Hyde Amendment are analyzed extensively in the opinions of the First, Seventh and Eighth Circuits. Our own reading of these proceedings leads us to no different conclusion than that reached by the Preterm, Zbaraz and Hodgson courts. The debates on the current version of the Hyde Amendment occurred sporadically from June to November, 1979. Our independent analysis of these most recent debates indicates that they reveal the same Congressional concerns and the same Congressional intention as the earlier ones. We therefore conclude that in enacting the present (fiscal year 1980) Hyde Amendment, Congress intended, as it had in the earlier Hyde Amendments, to alter the scope of Title XIX to restrict the funding of abortions.

At oral argument the Appellees claimed that in these highly emotional discussions, the members of Congress treated abortion as a moral issue. They claimed that the legislators, on moral grounds, simply sought elimination of federal participation in abortions. This moral position could not be achieved however, by the construction of the Hyde Amendment which the Appellees advance. For under their construction, the states would then be required to fund 100% of the costs of abortions rather than only a portion of such costs. Thus, the states would be under an increased obligation to fund abortions, an obligation which would result entirely from a federal statute — Title XIX. Therefore the federal influence on abortions would not be curtailed. Abortions which would no longer be federally funded, would still be federally required.

Furthermore, we find it difficult to presume that the Hyde Amendment was simply an appropriations bill in light of the fact that the subject of finances was not debated. Extensive, detailed discussions of the costs associated with the measure — the type of discussions which usually attend appropriations measures — do not appear in the legislative history. Instead, the legislative history is permeated with ethical, sociological and political debates on the subject of abortion. In regard to this, it is instructive to observe that the Hyde Amendment was originally but one section of a broader bill providing appropriations for HEW and the Department of Labor. As we read the debates on the entire bill, see, e. g., 125 Cong. Rec. H 5213-76 (June 27,1979 daily ed.), we cannot help but note the drastic change in the nature of the discussion when the subject of abortion was introduced, see id. at H 5213-18 and H 5253-62. The discussion changed from “how much” funds were to be appropriated for various projects to “which” abortions will be funded. Accordingly, several amendments were offered or discussed in the course of the debate which would have affected the scope of the Hyde Amendment insofar as the categories of abortions to be funded. Some amendments would have included categories found in the broader fiscal 1979 Hyde Amendment. Id. at H 5256 (Rep. O’Bey). Others would have included funding for abortions where it could be determined that the baby would have sickle cell anemia, id. at H 5253 (Rep. Stokes), or Tay Sachs disease, id. at H 5213 (Rep. Edwards). These types of substantive policy decisions hardly comport with the model for appropriations legislation.

Finally, numerous members of Congress expressed displeasure that the issue of abortion had to be raised in the context of appropriations legislation. Those legislators were particularly disturbed because the abortion issue threatened to prevent approval of the federal budget.¹⁵ See, e. g. 125 Cong.Rec. S 16713 (Nov. 15, 1979 daily ed.) (Sen. Exon); id. at H 10957 (Nov. 16, 1979 daily ed.) (Rep. Bauman). Nonetheless, as several of its proponents made clear, the Hyde Amendment was dealt with in the context of an appropriations bill because that was the only legislative vehicle which could be utilized. See id. at H 5216 (June 27,1979 daily ed.) (Rep. Hyde). The House, in fact, suspended its normal rules against substantive lawmaking in appropriations measures during its consideration of the Hyde Amendment. Id. at H 5218 (June 27, 1979 daily ed.). These facts make clear that the Hyde Amendment was not a normal “garden variety” appropriations measure.

We are not unmindful of Appellees’ and Judge Hunter’s arguments based upon the principles of statutory construction. Indeed, cognizant of the difficulties which may arise, we are most reluctant to find that an appropriations measure has implicitly repealed substantive law. See TVA v. Hill, 437 U.S. 153, 189-91, 98 S.Ct. 2279, 2299-2300, 57 L.Ed.2d 117 (1978). But it is not our duty to prescribe optimal methods of legislation. Rather it is simply our duty to interpret statutes in accordance with the intent of the legislature. In this case, we find the intent of the legislature to be clear. Notwithstanding rules of statutory interpretation which may counsel otherwise, the legislative history makes it evident that the Congress intended the Hyde Amendment to have substantive impact. Therefore, we hold that states are not required under Title XIX to provide abortions which the federal government, under the Hyde Amendment, will not fund.

Our holding that the Hyde Amendment constitutes a substantive modification of Title XIX, restricting the funding of abortions, still does not operate to validate Pennsylvania’s statutes. For Title XIX, as now modified, requires the states to fund abortions in two categories: where the mother is endangered and where the pregnancy was the result of rape or incest. Pennsylvania, under Public Laws 16A and 148, would not fund the second category. Because Pennsylvania’s statutes are not consistent with the modified Title XIX it is clear that, as written, they cannot stand.

IV.

To conform with the Hyde Amendment, the Pennsylvania statutes would have to provide funding for rape and incest cases in addition to those situations where abortions are necessary because of danger to the mother’s life. This would require the addition of specific language to the statutes themselves. Pennsylvania does permit courts to add wording to a statute to aid in its construction but only when the addition does not “in any way affect [the] scope and operation” of the statute. 1 Pa.Con.Stat. Ann. (Purdons) 1923(c) (Supp.1978). If we were to add provisions to the Pennsylvania statutes to require payment for abortions in cases of rape and incest, the “scope and operation” of the enactments would unquestionably be enlarged. In that event, we would have exceeded our judicial role and we would be engaging in positive legislative enactment, a proper function of the Pennsylvania Assembly, which it has reserved to. itself.¹⁶

Long established principles of federal law also dictate against courts inserting limitations in order to rescue otherwise invalid statutes. United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563 (1879). Recently, Judge Aldrich, writing for a three judge court in Massachusetts, echoed this time-honored concern. Baird v. Bellotti, 450 F.Supp. 997 (D.Mass.1978), affirmed 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). Faced with a Massachusetts state court decision which construed a state statute against the plain meaning of its terms so as to make it constitutional, Judge Aid-rich wrote:

Here something more is involved than construing language. The Massachusetts court, in addition to contradicting its specific terms, suggests reading into the statute affirmative provisions made out of nothing but a generally announced purpose to pass constitutional muster.10 In so doing, the court seems to have found the ultimate remedy for all constitutional infirmities. If a statute which, in terms, requires parental consultation without exception, can be “construed to require as much parental consultation as is permissible constitutionally,” here, at once, is an instant cure, both for over-breadth, and for lack of standards. Regardless of whether a statute says too much, or too little, so long as the legislature intended it to be constitutional, when it comes before a court it will be appropriately rewritten. With due respect, we cannot believe this to be possible. Cf. United States v. Reese, 1875, 92 U.S. 214, 221, 23 L.Ed. 563.

Id. at 1005-1006 (footnote omitted).

There is nothing in the record to indicate what course Pennsylvania would choose to follow given the amendment to Title XIX by the Hyde enactment and we are not free to substitute our speculation for the judgment of the duly constituted officials of the state. This court should refrain from acting on a “matter which properly requires the exercise of policy judgment by the legislature.” 2A C. D. Sands, Sutherland Statutory Construction § 47.36 (4th ed. 1973).

The injunction issued by the district court enjoined the enforcement of the statutes. Although our reasoning differs from that of the district court in that we hold the Hyde Amendment alters Title XIX, nevertheless, we must affirm the grant of the injunction. We do so, because only by improperly adding to the express language of the Pennsylvania statute could we modify the injunction. Accordingly the order of December 21, 1978 will be affirmed.

1 . See Doe v. Beal, 523 F.2d 611 (3d Cir. 1975) (en banc) (holding Title XIX requires state funding of elective abortions), reversed, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977).

2 . 1978 Pa.Laws 16A, 148. Public Law 148 has been codified at 35 Pa.Stat.Ann. (Purdons) § 6607 (Supp.1979).

3 . 42 U.S.C. § 1396 et seq.

4 . The most recent version of the Hyde Amendment is P.L. 96-123, § 109, 93 Stat. 926 (1979). See footnote 10 infra for a history of the various Hyde Amendments.

5 . The opinion of the district court is reported at 464 F.Supp. 487 (E.D.Pa.1978).

Three other circuit courts have recently dealt with these issues. Hodgson v. Board of County Commissioners, 614 F.2d 601 (8th Cir. 1980); Preterm, Inc. v. Dukakis, 591 F.2d 121 (1st Cir.), cert. denied, 441 U.S. 952, 99 S.Ct. 2182, 60 L.Ed.2d 1057 (1979); Zbaraz v. Quern, 596 F.2d 196 (7th Cir. 1979). Our reasoning in this appeal is essentially in accord with the reasoning of the First, Seventh and Eighth Circuits.

On remand in Zbaraz the district court held that the Illinois statute, as modified to conform to the provisions of the fiscal 1979 Hyde Amendment, see note 10 infra, was unconstitutional under the equal protection clause. Zbaraz v. Quern, 469 F.Supp. 1212 (N.D.Ill.1979). This decision was appealed directly to the Supreme Court. The Supreme Court will hear argument in Zbaraz but has specifically postponed final decision on whether it has jurisdiction to decide the merits of the appeal. Zbaraz v. Quern, 444 U.S. 960, 100 S.Ct. 444, 62 L.Ed.2d 373 (1979). The Supreme Court has also recently noted probable jurisdiction of an appeal from a district court decision which sustained a challenge to the constitutionality of the Hyde Amendment itself. McRae v. Califano, 491 F.Supp. 630 (E.D.N.Y.1980), application for stay of enforcement denied and prob. juris, noted, - U.S. -, 100 S.Ct. 1010, 62 L.Ed.2d 749 (1980). The Court has decided to hear the arguments in McRae and in Zbaraz together.

In Reproductive Health Services v. Freeman, 614 F.2d 585 (8th Cir. 1980), the Court of Appeals for the Eighth Circuit held that a state statute which tracked the limitations of the Hyde Amendment violated the equal protection and due process clauses of the U.S. Constitution.

6 . 1978 Pa.Law 16A. See also 35 Pa.Stat.Ann. (Purdon’s) § 6607 (Supp.1979).

7 . In a separate opinion and order the district court denied a motion by certain doctors and by the legislator who introduced the Pennsylvania legislation for intervention as of right, on the side of defendants, pursuant to Fed.R.Civ.P. 24(a)(2). It also denied a motion by these same parties to be appointed as guardians ad litem, under Fed.R.Civ.P. 17(c), on behalf of the unborn children. Roe v. Casey, 464 F.Supp. 483 (E.D.Pa.1978). The order denying these motions is the subject of the appeal in No. 79-1108.

We affirm the orders of the district court. We agree with the district court that the mov-ants did not have sufficient interest in the litigation to warrant intervention as of right. In addition, we hold that the district court did not abuse its discretion in refusing to appoint guardians ad litem because whatever interests the unborn infants may have, see Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), were adequately represented by the state authorities. See Halderman v. Pennhurst, 612 F.2d 84 (3d Cir. 1979) (en banc).

8 . In order to qualify for funding under Title XIX, a state must provide at least five basic services to individuals who meet various income requirements. 42 U.S.C. § 1396a(a)(10)(A), (a)(13)(B). In addition, it may provide, and receive funding for, other services enumerated in 42 U.S.C. § 1396d. For a fuller discussion of states’ service options under Title XIX, see Eder v. Beal, 609 F.2d 695 (3d Cir. 1979).

9 . The Court of Appeals for the Eighth Circuit, in holding, inter alia, that Title XIX as originally enacted conflicts with and therefore supersedes Minnesota’s statutory restrictions on funding abortions, did not find it necessary to address the issue of whether that Title required states to finance all “medically necessary” services. Hodgson v. Board of County Comm’rs, 614 F.2d at 608 n. 11 (8th Cir. 1980). The court reasoned that the Minnesota statutes would be invalid even under a more narrow reading of Title XIX.

10 . The Hyde Amendment was first enacted in 1976 as a rider to the HEW appropriation for fiscal year 1977. The original provision limited funding to abortions where “the life of the mother would be endangered if the fetus were carried to term.” P.L. 94-439, § 209, 90 Stat. 1434 (1976). This provision immediately became subject to a nationwide injunction, and it never took substantive effect. See McRae v. Mathews, 421 F.Supp. 533 (E.D.N.Y.1976), vacated and remanded sub nom., Califano v. McRae, 433 U.S. 916, 97 S.Ct. 2993, 53 L.Ed.2d 1103 (1977).

In 1977, the Hyde Amendment was again adopted, after extensive debates, for the 1978 fiscal year. P.L. 95-205, § 101, 91 Stat. 1460 (1977). This version expanded funding not only to include the provisions of the earlier Amendment, but also to include abortions for victims of rape and incest as well as “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.” This identical provision was enacted again for the 1979 fiscal year. P.L. 95-480, § 210, 92 Stat. 1586 (1978). It was this version of the Hyde Amendment which was in effect when the Pennsylvania statutes were passed and when the instant lawsuit was brought.

The current version of the Hyde Amendment was approved on November 20, 1979, for the fiscal year 1980, P.L. 96-123, § 109, 93 Stat. 926 (1979). The 1980 Hyde Amendment differs from its predecessor by providing for one fewer category of abortion funding. The category deleted in the current amendment, and which will no longer be funded, is where “severe and long lasting health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians.” The Hyde Amendment has once again become subject to a nationwide injunction. McRae v. Califano, 491 F.Supp. 630 (E.D.N.Y. 1980), application for stay of enforcement denied and prob. juris, noted,-U.S.-, 100 S.Ct. 1010, 62 L.Ed.2d 749 (1980).

11 . Because the Pennsylvania statutes were enjoined by the district court when the previous (fiscal year 1979) Hyde Amendment was applicable, we need only consider the impact of the current (fiscal year 1980) Hyde Amendment on the continuing viability of Pennsylvania Public Laws 16A and 148.

Judge Hunter argues, however, that we should not consider the effect of the current (fiscal year 1980) Hyde Amendment because it was not the law when the case was heard in district court. Concurring Op. at 842-843. Apparently, although he does not discuss this course, he would dismiss the case as moot because of the subsequent change in the law. Or, as he does suggest, he would remand to the district court for that court to consider the effect of the new Amendment. What the concurring opinion overlooks, however, is the fact that the district court did not even reach the question of whether the Hyde Amendment modified or amended Title XIX. Thus, the district court had no occasion to discuss the question of whether the Hyde Amendment substantively altered Title XIX. It reasoned that it did not have to do so since the Pennsylvania statutes were more restrictive than the Hyde Amendment. As we discuss infra, such is the case under either the 1979 or the 1980 Hyde Amendments. Thus, Judge Hunter would have us remand to the district court for consideration of an issue which the district court apparently considered irrelevant to its analysis and which, even under the changed circumstances which now exist, would not have altered, and could not alter, the district court’s disposition of this case.

Moreover, we do not consider our treatment of this issue to be contrary to the law of this Circuit. But see Concurring Op. at 841-842. In Newark Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir. 1976), we stated that we “generally refuse to consider issues that are raised for the first time on appeal.” (emphasis added). But this in no way undercuts the Supreme Court’s teaching that “[t]he matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.” Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). In Singleton, the Supreme Court specifically refrained from enumerating all of the circumstances in which exercising this discretion would be appropriate. Id. at 121 n. 8, 96 S.Ct. at 2877 n. 8. For the reasons discussed in the previous paragraph, we conclude that this is an appropriate instance to exercise this discretion.

12 . Several district courts have reached the opposite conclusion, however. See, e. g., Planned Parenthood Affiliates v. Rhodes, 477 F.Supp. 529 (S.D.Ohio 1979); Doe v. Busbee, 471 F.Supp. 1326 (N.D.Ga.1979); see also Preterm, supra, 591 F.2d at 134 (Bownes, J., dissenting); Hodgson, supra 614 F.2d at 615 (McManus, J., dissenting).

A Connecticut statute similar in its provisions to the Pennsylvania statutes involved in this case was just recently invalidated on constitutional grounds. Women’s Health Services, Inc. v. Maher, 482 F.Supp. 725 (D.Conn.1980). The district court there also concluded that Title XIX was substantively modified by the 1980 Hyde Amendment. Finally, in what may be the most comprehensive discussion of the Hyde Amendment to date, Judge Dooling in McRae v. Califano, supra, characterized the whole series of Amendments as substantively modifying Title XIX. 491 F.Supp. at 732-733. It appears, however, that we are the first court of appeals to reach this issue under the 1980 Hyde Amendment. But the arguments with respect to this issue are the same in regard to any version of the Hyde Amendment. And, as will be seen infra, so is the conclusion. (Although its opinions were published after the 1980 Hyde Amendment was enacted, the Eighth Circuit considered only the effect of the 1979 Amendment. See Reproductive Health Services, supra; Hodgson v. Board of County Comm’rs, supra.)

13 . Appellees have identified several instances where state Medicaid expenditures are not matched or reimbursed. But none of these are directly related to the provision of particular services. See 42 U.S.C. § 1396a(a)(2) (requiring states to guarantee all non-federal funding whether or not they are principally responsible for it); id. at § 1396a(a)(18) (prohibiting state liens against benefits correctly paid); id. at § 1396a(c) (Secretary will not approve a plan which reduces benefits); id. at § 1396b(g) (federal benefits will be reduced unless the state maintains effective operational controls). The sections referred to by Appellees appear to be principally concerned with imposing controls and sanctions on state programs. As such they are not apposite to this case. Judge Hunter asserts that “Title XIX abounds with provisions which require participating states to pay for services . without compensation from the federal government.” Concurring Op. at 844. The concurring opinion, however, points only to two of the provisions which are discussed above, which are inapposite, and does not point to any specific provision whereby a participating state is obliged to pay for services without at least partial federal funding. Nor has our independent research disclosed such a provision.

14 . There are no independent conference reports or committee reports addressed specifically to the Hyde Amendment.

15 . In fact, largely because of the abortion issue, the 1980 budget was not approved in a timely manner. On September 27, 1979, the Senate passed a “continuing resolution” extending funding, pursuant to the old appropriations bills, for 30 days. 125 Cong.Rec. S 13544 (Sept. 27, 1979 daily ed.). The House enacted a similar resolution on the next day. Id. at H 8760 (Sept. 28, 1979 daily ed.). It was not until November 20, 1979 that the final bill was approved. Id. at S 17123 (Nov. 20, 1979 daily ed.).

16 . Both the Preterm and Zbaraz courts enjoined the state statutes only insofar as they were narrower than the Hyde Amendment. Preterm, 591 F.2d at 134; Zbaraz, 596 F.2d at 203. That remedy was apparently chosen at the behest of the state defendants who argued that if an injunction was to be decreed, it should “correct” the invalidity of the state statutes. See Preterm, 591 F.2d at 134; Zbaraz, 596 F.2d at 202-03. Without commenting on this procedure, we observe that Pennsylvania, in this case, has made no such request. We also recognize that if we were to order a remand, the plaintiffs would be forced to test the constitutionality of a statute which they did not originally challenge. This might create serious jurisdictional problems. See Zbaraz v. Quern, 444 U.S. 960, 100 S.Ct. 444, 62 L.Ed.2d 373 (1979) (Supreme Court reserves question of whether it has jurisdiction to decide constitutional issues raised in this manner). See note 5 supra.

In Hodgson, the Court of Appeals for the Eighth Circuit did not direct the district court to enter an order enjoining the operation of the Minnesota statute only insofar as it did not comply with the Hyde Amendment, because the court had held in a companion case, Reproductive Health Services, supra, that such a state statutory scheme was unconstitutional.