Full opinion text
DOOLING, District Judge. Table of Contents CONTENTS I Statistical background on abortion 634 II Legislative history, the Medicaid Act and the “Hyde amendments” 639 III Effects of “Hyde amendments” A. Medicaid-related abortion litigation 649 B. Consequences in the field 653 IV The medical standards before the “Hyde amendments” 661 V Medical standards for abortion and related to “Hyde amendments” 664 VI Medical problems arising in pregnancy, related to poverty, “unwantedness,” age, and delay 668 VII Mental health problems related to pregnancy; poverty as aggravating stress 674 VIII Familial circumstances related to unwanted pregnancy and childbirth 676 A. Familial context of unwanted childbirth 677 B. Fetal abnormality 678 IX Age and pregnancy; the younger teenager 680 X Rape and incest, prompt report 686 A. Prompt report of rape 686 B. Report requirement in incest cases 688 XI Summary of Parts II to X 689 XII First Amendment matters 690 A. The Roman Catholic teaching 692 B. The Orthodox Jewish position .695 C. The Lutheran Church — Missouri Synod position 695 D. The Conservative and Reform Jewish position 696 E. American Baptist Church approach 697 F. United Methodist Church, and American Protestant opinion 700 XIII The Roman Catholic Church and the pro-life movement 702 A. The Pastoral Plan and related action 703 B. Other opinion among Roman Catholics 707 C. Religion in relation to pro-life thought 710 D. Religious attitudes related to pro-life choice 712 E. Picketing, etc. 713 F. The moral issue 714 XIV Political activity on the issue 715 A. The Peek episode (Minnesota) 716 B. The political activity in Minnesota and church participation 717 C. Conclusion on abortion and single-issue politics 722 D. The impact of the pro-life, pro-choice campaigns on Congress 723 E. Conclusion from Parts XIII and XIV .727 XV The legal issues A. Threshold issues 728 1. Plaintiffs’ standing 728 2. Justiciability of issue 728 3. Absence of status as parties 731 B. Statutory, due process and equal protection issues 731 1. The “Hyde amendments” amended Title XIX 731 2. The due process and equal protection issues 733 (a) Beal, Maher and Poelker 733 (b) “Medically necessary” related to the evidence 735 (c) The “Hyde amendments” impinge impermissibly on a fundamental right 736 (d) Impact on adolescents at high risk of pregnancy 738 (e) The “Hyde amendments” not reasonably related to a justifying legislative interest 738 C. First amendment considerations 740 MEMORANDUM and ORDER for JUDGMENT Following the decision of Beal v. Doe, 1977, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464; Maher v. Roe, 1977, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484, and Poelker v. Doe, 1977, 432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528, the decision in the present case preliminarily enjoining the enforcement of the so-called Hyde Amendment to the Act making Medicaid appropriations for fiscal 1977 (D.C., 421 F.Supp. 533) was vacated by the Supreme Court (433 U.S. 916, 97 S.Ct. 2993, 53 L.Ed.2d 1103) and the case was remanded “for further consideration in light of Maher v. Roe . . and Beal v. Doe ”. The Court denied plaintiffs’ application for a stay of the execution of the order vacating the decision in this court, 434 U.S. 1301, and plaintiffs’ petition for rehearing, 434 U.S. 881, 98 S.Ct. 244, 54 L.Ed.2d 165. A temporary restraining order entered in this court on July 28, 1977, was vacated on August 4, 1977. I The magnitude of abortion in contemporary societies appears, at least to an extent, from the published statistical data. The 1975 Abortion Surveillance Report of the Center for Disease Control (“CDC”), Department of Health, Education and Welfare, Public Health Service, supplemented by the prepublished tables for the 1976 Surveillance Report, analyzes the reported data on legal abortions in the United States. In the period 1969-1976, the number of legal abortions, the ratio of the abortions to live births, and the^number of states reporting were as follows: The data are not geographically uniform. For those states having 2,000,000 or more women aged 15-44 the figures were in 1976: Surveys made by the Alan Guttmacher Institute (“AGI”) give somewhat higher figures for abortions in the United States: The percent distribution of legal abortions by classifying characteristics of the patients were given as follows in the prepublished CDC figures for the years 1972-1976: The CDC data for 1976 give an age bracket distribution for 762,427 of the 988,-267 abortions reported for that year. Of these abortions 241,845 were performed for women 19 or younger, 31.7% of the total, a slightly smaller percentage from that given by CDC in the more general “characteristics” table. Detailed age data for 184,938 of the 241,845 “teen age” abortions, reported by 26 states having such data available, showed the following age distribution: The calculated ratio of abortions to live births by age classes, based on the 762,427 abortions for which there were age data, are given as follows in the CDC tables for 1975 and 1976: The CDC tables for 1975 and 1976 give the following data from selected states distributing abortions by the number of the patient’s previous live births: The CDC Surveillance material gives some information on abortions in other countries. The data for those countries for which both 1975 and 1976 figures are given are as follows: The prevalence of illegal abortions in this country before the state legislatures commenced to change the abortion laws, and before the decisions in Roe v. Wade, 1973, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, and Doe v. Bolton, 1973, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 211, is not remotely determinable. A 1957 committee estimate of 200,000 to 1,200,000 abortions a year was often referred to, and the AGI Reports on Population/Family Planning, Number 14 (2nd Edition), December 1975, (page 15) found theoretical support for an estimate of 1,000,000 abortions a year. There was a history of maternal deaths due to abortion, ' and the Health Resources Administration of the Public Health Service (DHEW) had statistics of uncertain tenor covering the years 1960-1975. The figures indicate a distinct reduction in such deaths over the years. Data supplied by Dr. Christopher Tietze of AGI (Reports on Population/Family Planning, Number 14 (2nd Edition), Supplement, December 1977, page 15) are comparable in trend: Whatever the extent of illegal abortion before the 1973 decisions of the Supreme Court and the changes in state abortion laws, the opinion current in the medical world was that abortion-related deaths were in large part attributable to illegal induced abortions, and that the general availability of legal abortion services after the 1973 decisions radically reduced mortality due to illegal induced abortion See, e. g., W. Cater & R. W. Rochat, Illegal Abortions in the United States: 1972-1974, in Family Planning Perspectives, Vol. 8, No. 2, March-April 1976 (DHEW reprint). Therapeutic abortions were long known to medical and hospital practice, and, in general, were performed under strict medical safeguards. There are few data on the number of therapeutic abortions, but data for 1963-1968 gathered from hospitals accounting for from 8% (in 1963) to 26% (in 1968) of live births in hospital if applied to whole number of live births in hospital indicate the following: The data of the reporting hospitals, broken down by years, gave the following percentage distributions by categories of indications: A discontinuous series of New York City data on therapeutic abortions performed in New York City in the period 1943-1967 gives the following summary figures, the data for two groups of years being extrapolated from incomplete data: The New York City data showed a heavy concentration of the therapeutic abortions in the “Private Service” of the voluntary hospitals as against the “General Service” in such hospitals, and marked concentration of such abortions among white patients as against “others”. The data on “indications” for the therapeutic abortions are given and are divided by type of hospital and by service: The Department of Health, Education and Welfare estimated that it annually financed between 250,000 and 300,000 abortions, principally under Title XIX of the Social Security Act (Medicaid), in the period after the decisions in Roe v. Wade and Doe v. Bolton and before the vacatur of the preliminary injunction and temporary restraining order in the present case. The plaintiff New York City Health and Hospitals Corporation has estimated that over the years 1970-1975 Medicaid financed from 46% to 50.8% of the 112,029 abortions performed in the municipal hospitals for residents of New York City, and financed over the same years from 31.8% to 35% of the 293,713 abortions performed for residents of New York City in other facilities in the city. In forwarding to the Secretary in June 1977 a list of possible cost savings initiatives the Administrator of the DHEW Health Care Financing Administration included a section opening in this language: “In 1973, about 3.6 percent of all women aged 15-44 eligible for Medicaid received abortions in States covering abortions. Add to this the proportion of unwanted pregnancies where abortion was rejected, and it is possible that close to half the welfare recipients of child-bearing age have unwanted pregnancies in a single year. In 1975, there were 3.5 million AFDC families, nearly all of whom have women of child-bearing age.” A 1977 study based on a 1973 survey conducted by the National Center for Health Statistics reached the generalized conclusion that one-fifth of all births to mothers aged 15-44 would not have occurred if the women had given birth only to those babies they reported as “wanted” at the time of conception; the study notes that the survey dealt only with live births (excluding miscarriages and, of course, abortions), and that the answers did not signify that the babies, when born, became “unwanted children.” A very small New York sample, from the period before the change in the New York abortion law, indicated that the incidence of pregnancies that were “unwanted” to the point of seeking to abort the birth cut across religious lines. II The Medicaid Act (42 U.S.C. §§ 1396a-1396k), added to the Social Security Act as Title XIX in 1965, authorized the appropriation in each fiscal year of sums sufficient to carry out the purposes of the Medicaid Act, that is, “enabling each State, as far as practicable under the conditions in such State, to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care.” State plans for medical assistance must be submitted to the Secretary of the DHEW for approval; “medical assistance” means payment of all or part of the cost of inclusively described health care services for those eligible for assistance whose income and resources are insufficient to meet all of such cost (42 U.S.C. § 1396d(a)). Where states operate approved plans, the United States pays not less than 50% nor more than 83% of the cost of the medical assistance furnished under the plans. Approved state plans must provide for making medical assistance available to all individuals receiving aid or assistance under any state plan approved under certain enumerated titles of the Social Security Act, including Part A of Title IV (Aid to Families with Dependent Children, “AFDC”), 42 U.S.C. § 601 et seq., and the plans must provide that the medical assistance so made available to any individuals shall not be “less in amount, duration, or scope than the medical assistance made available to any other such individual,” nor less than the medical assistance made available to individuals not receiving assistance under the enumerated titles but deriving their entitlement to medical assistance under schemes within Section 1396a(a)(10)(C) for those who have “insufficient income and resources to meet the costs of necessary medical and remedial care and services.” The state plan must provide for some institutional and some noninstitutional care and services, for some home health services for those entitled under the state plan to skilled nursing facilities services, and, in the case of those receiving AFDC, at least (1) inpatient hospital services, (2) outpatient hospital services, (3) other laboratory and x-ray services, (4) skilled nursing facility services for adults, early and periodic screening of eligible minors for, and diagnosis of, their physical and mental defects and such health care of defects and chronic conditions discovered thereby as the Secretary’s regulations provide, and family planning services and supplies to eligible individuals of childbearing age, including minors who can be considered to be sexually active; and (5) physicians’ services furnished by a physician, whether the services are furnished in the office, the patient’s home, a hospital, a skilled nursing facility, or elsewhere (Sections 1396a(a)(13)(A), (B), and 1396d(a)(l)-(5)). The state plan must “include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which . are consistent with the objectives of this Title”. The Secretary’s regulations impose the following general plan requirements (42 C.F.R. § 440.230): “(a) The plan must specify the amount and duration of each service that it provides. “(b) Each service must be sufficient in amount, duration, and scope to reasonably achieve its purpose. “(c)(1) The medicaid agency may not arbitrarily deny or reduce the amount, duration, or scope of a required service under §§ 440.210 and 440.220 to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition. “(2) The agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures.” (Service under § 440.210 is for the “categorically needy,” such as those receiving AFDC; service under § 440.220 is for the “medically needy” provided for under 42 U.S.C. § 1396a(a)(10)(C); see 42 C.F.R. § 435.4). Before the enactment of the Hyde amendment on September 30, 1976, as Section 209 of the Department of Labor and HEW Appropriations Act, 1977, 90 Stat. 1418, 1434, DHEW had regularly paid the federal share of the cost of abortions performed under approved State plans for medicaid eligibles; it was generally estimated that by 1976 there were approximately 250,000 to 300,000 federally funded abortions annually. The recorded legislative history of the Hyde amendment is comprised in principal part in the extended and bitter debates in the House of Representatives and in the Senate; that debate was renewed and extended in the even more contentious debates on the abortion funding issue in the following year, which ended with enactment on December 9, 1977, of Section 101 of Public Law 95-205, 91 Stat. 1460, of revised language restricting the funding of abortion. The language of the 1977 amendment was carried forward into the Appropriations Act for the fiscal year ending September 30, 1979, as Section 210 of Public Law 95-480 of October 18, 1978, 92 Stat. 1567, 1586, again not without debate. The content and tone of the debates cannot be fairly summarized within any reasonable compass. The accompanying Annex, not intended as a part of this decision but, rather, disclosed as the intermediate basis for statements made about the legislative history in the decision, does give by quotation and summary the course and sense of the debates. The detailed attention given to them is in part necessitated by the evidence adduced to show the nature and intensity of the conflicting pressures brought to bear on the members of both houses in the effort to influence their votes. The Hyde amendment of September 1976 was introduced on the floor of the House as an amendment to an appropriations bill when efforts to bring the abortion issue to debate on a proposed constitutional amendment had failed. The debates made clear that the amendment was intended to prevent abortions, not shift their cost to others, and rested on the premise that the human fetus was a human life that should not be ended. Both houses viewed the issue as a moral and not a financial issue, sharply debated the place in any restrictive legislation of therapeutic abortion, the importance of leaving to the woman the decision between childbirth and abortion, the question whether a constitutional right to choose abortion rather than childbirth implied a right in the indigent to have the abortion paid for from medicaid funds, argued the issue of discrimination against the indigent woman who decided upon abortion, sought to quantify the practical consequences in death and health damage from illegal abortions that could result from denying funding, were pressed with the argument that the Hyde amendment would have a disproportionately heavy impact on blacks and Hispanics, and threshed out a basis for compromise exclusions from general prohibition against the funding that might be voted. The argument was made that the amendment was improper as an attempt to legislate through an appropriations bill; there were references in the House of Representatives to some members being fearful that they would be “punished at the polls” for their votes on the abortion issue; both houses adverted to the pendency in the Supreme Court of the Maher, Beal and Poelker cases; and throughout there were references to religion and morality and the moral implications of the positions taken in the debate. The House voted the Hyde amendment into the bill, the Senate rejected the amendment completely, and in conference the language of Section 209 was agreed on along with explanatory language in a Joint Statement accompanying the conference report. Section 209 provided: “None of the funds contained in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term.” The language in the Joint Statement that professed to express the intention of the conferees read: “It is the intent of the Conferees to limit the financing of abortions under the Medicaid program to instances where the performance of an abortion is deemed by a physician to be of medical necessity and to prohibit payment for abortions as a method of family planning, or for emotional or social convenience. It is not our intent to preclude payment for abortions when the life of the woman is clearly endangered, as in the case of multiple sclerosis or renal disease, if the pregnancy were carried to term. Nor is it the intent of the Conferees to prohibit medical procedures necessary for the termination of an ectopic pregnancy or for the treatment of rape or incest victims; nor is it intended to prohibit the use of drugs or devices to prevent implantation of the fertilized ovum.” After further debate both houses passed the bill, amended to include Section 209; the President vetoed the bill, but he expressed agreement with the restriction on the use of federal funds for abortion. The Congress overrode the veto and the bill became law on September 30, 1976. (See Annex pp. 743-772.) The Secretary did not implement the Hyde amendment until August 4, 1977 (42 F.R. 40486), after the Maher, Beal and Poelker cases were decided and the temporary restraining order in the present case was terminated. The Secretary’s release was explicit that federal participation in the cost of abortions would be provided “. . . only where the attending physician, on the basis of his or her professional judgment, has certified that the abortion is necessary because the life of the mother would be endangered if the fetus were carried to term. * * * if: * :(< “ ‘Treatment for rape or incest victims’ is, however, limited for these purposes to prompt treatment before the fact of pregnancy is established. As in all cases, Federal funds for abortions for rape or incest victims will be available where the physician has certified that the life of the mother would be endangered if the fetus were carried to term.” (See Annex, p. 772.) By the time the Secretary implemented the 1976 Hyde amendment the first two stages of the 1977 debates concerning imposing restrictions on abortion funding had been completed, the House of Representatives had voted to include in the Labor-HEW appropriations bill the language of the preceding year’s Section 209, the Senate had disagreed, and the Senate requested a further conference with the House of Representatives. At that point in the debates the Senate had approved, and the House of Representatives had, in effect, rejected (in favor of the Hyde amendment language) the Brooke amendment, providing that “None of the funds in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term, or where medically necessary, or for the treatment of rape or incest victims. This section does not prohibit the use of drugs to prevent implantation of the fertilized ovum.” No agreement was reached before the fiscal year ended, and, as the disagreement on the abortion issue continued, resolutions were adopted continuing the appropriations of the previous year through October 31st, then through November 30th, and, finally, on December 7,1977, a Joint Resolution was adopted appropriating such amounts as might be necessary for the projects or activities provided for in the Appropriation Act, 1978 that had been under debate (H.R. 7555), subject to certain limitations and provisions; Section 101 of the Joint Resolution contained a proviso in the following language: “Provided, That none of the funds provided for in this paragraph shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest, when such rape or incest has been reported promptly to a law enforcement agency or public health service; or except in those instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians. “Nor are payments prohibited for drugs or devices to prevent implantation of the fertilized ovum, or for medical procedures necessary for the termination of an ectopic pregnancy. “The Secretary shall promptly issue regulations and establish procedures to ensure that the provisions of this section are rigorously enforced.” The language was arrived at as the thirtieth version considered in conference committee or during floor debate. The floor debates were concerned with the positions to be taken on (a) rape and incest, (b) health risks of the mother where the threat to her health was not covered by the expression “the life of the mother would be endangered if the fetus were carried to term,” (c) preventing fraudulent circumvention of statutory restrictions, (d) teenage pregnancies, (e) prenatally determined fetal defects, and (f) funding procedures not generally regarded as abortion, such as preventing the implantation of the fertilized ovum and terminating ectopic pregnancies. But underlying the long debate were premises of surprising clarity that were irreconcilable in controlling principle, but which were resolved in legislative terms at a point that satisfied neither side, at their extremes of view, and reflected a seeming middle position that at least in Senator Dole’s telling phrase, seemed to express the sort of compromise without which “a democracy would wither in its own indecision” (see Annex p. 835, 123 Cong.Rec. S 19438, daily edition). The major premise of the advocates of the Hyde amendment in its original form was that abortion was the taking of human life. The major premise of the opponents was that the woman’s constitutionally protected right of privacy encompassed her medically advised decision whether or not to terminate her pregnancy; underlying that premise was the holding in Roe v. Wade that the unborn were not persons within the meaning of the Fourteenth Amendment. The conflict in basic principle was reflected in the complexities of the debate about the victims of rape and incest: from the one point of view principle forbade any exception from the prohibition of funding abortions in the case of victims of rape and incest; the 1976 legislation allowed no such exception. From the other viewpoint the victim of rape or incest presented the paradigmatic instances in which there should be freedom of choice. The effort on the one side was to limit any exception for rape victims to victims of forced rape where the incident was promptly reported; the prompt report requirement was extended to incest, although it was assumed that the most general case was parental abuse of very young females. In the end the requirement of prompt report was retained and the limitation to “forced” rape was dropped; in the opinion of some members of the House of Representatives the Secretary should have interpreted the statutory language to exclude abortion from the “medical procedures” permitted to be funded where the rape or incest was promptly reported. From the standpoint of the supporters of the Hyde amendment the exception allowing the funding of abortions where the life of the mother would be endangered if the fetus were carried to term went far enough, if not too far, in preferring one human life over another, and in subjecting the fetal life to a physician’s uncontrolled judgment. From the other side, the life endangerment exception was more restrictive than the law that preceded Roe v. Wade in stating too narrowly the occasions of therapeutically justified abortion. An effort to broaden the exception to cover abortion “where medically necessary” was met with the objection that it would allow so much medical discretion that it would amount to funding abortion on demand. The later substitution of the “severe and long-lasting physical health damage” language was objected to as little different from the “medically necessary” phrase; the insertion of the word “physical” at least arguably excluded purely psychiatric damage; yet, in the end, only the last minute addition of the “two physicians” requirement made enactment possible. Throughout much of the debate proponents of the restrictive amendment argued that to express the restriction in terms that depended to any significant extent on a physician’s judgment was to maximize the risk of fraudulent impositions that would come to abortion on demand; even the “two physicians” requirement was seen as only mildly if at all diminishing the risk of fraud. On the other side the response was that whether or not to terminate an abortion for health reasons was intrinsically a medical question so many faceted that the Congress had not the expertise to draft criteria to define therapeutically justifiable abortions, and had no rational alternative to leaving medical questions to the decision of the medical profession; it was argued that Congress could not reasonably legislate on the assumption that the medical profession was untrustworthy. The problem of “teenage pregnancies” was much debated, and effort was directed to obtaining exception from the restriction on funding for, at least, those in the lower teens; those proposing exception emphasized the high incidence of permanent health damage due to teenage childbearing and the diminished health and nurture prospects of babies born to immature mothers. On the other side it was argued that the response to teenage pregnancy was not abortion but extension of family planning facilities directed to reducing the occasions for considering abortion as an alternative to childbearing, and improved health care and supportive measures for child mothers and their babies. The legislation as enacted made no exception for teenage pregnancies, except to the extent that deleting the word “forced” before “rape” might have that effect. Cf. 42 C.F.R. § 441.205; see “Response” and “Comment”, 43 F.R. 31868, 31873. Opponents of restrictions on abortion funding sought exception for abortion funding in cases in which it was determined that the fetus, if carried to term would suffer serious health damage; it was indicated, too, that the “medically necessary” formulation, at one stage in 1977 approved in the Senate, would embrace judgments based on the health of the fetus; other conditions were referred to, but two, used as typical of what was intended, were Tay-Sachs disease and Down’s syndrome (mongolism or trisomy 21 syndrome). Proponents of restrictions on abortion funding questioned the reliability of prenatal determinations of grave fetal abnormality and argued that fetal abnormality did not mean that the fetus was not a human being and that society should not destroy but find means of caring for such a fetus. The 1977 enactment did not provide any exception for cases of prenatally determined grave fetal abnormality. The provision for drugs or devices to prevent implantation of the fertilized ovum and for medical procedures necessary for the termination of ectopic pregnancies traced to the Joint Statement in the Conference Report of September 15, 1976, and to the Secretary’s August 4, 1977, ruling (Annex pp. 763-764, 772). It occasioned little debate. While the debate in both years was on a rider to the departmental appropriations bill, it was quickly established that the restriction on abortion funding was not an economy measure; it was recognized that if an abortion was not performed for a medicaid eligible woman, the medicaid and other costs of childbearing and nurture would greatly exceed the cost of abortion. Opponents of funding restriction were equally at pains, however, to make clear that they did not favor funding abortion as a means of reducing the government’s social welfare costs. It was more than once stated that pressing the Hyde amendment was an alternative means of forcing the abortion issue to debate in both houses, a means employed only because efforts to bring a constitutional amendment on abortion to a vote in both houses had repeatedly failed. The debates demonstrate that the purpose of the funding restriction was to its proponents a means of preventing abortions. Representative Hyde described to a Maryland audience on October 29, 1977, the circumstances of the introduction of the 1976 Hyde amendment in these terms: “[Representative] Bauman got me aside one day and said this bill was coming up that appropriated all sorts of money for abortions and wouldn’t it be a nice idea if we could just sneak an amendment in there that would halt this nefarious practice . .. I might add that [Representative Bauman] drafted the amendment and we waited and handed it up and the next thing I knew I was in the well addressing my colleagues on behalf of the right to life.” Opponents of the restrictions argued that denying funding would not prevent abortions, but would only deny to indigent women the means of safe abortion and result in increased resort to illegal and self-induced abortions with a consequent increase in maternal deaths and post-abortion health complications. But near the close of the 1978 debate Representative Bauman, an uncompromising supporter of the Hyde-Conte amendment in the 1976 form, felt able to assert (124 Cong.Rec. (95th Cong., 2d Sess). H 12518, daily edition): “We do not have the final statistical analysis, but the past actions of Congress restricting abortions is having the desired effect. Children are being permitted to live. That is what the entire battle on this issue has been about from the beginning.” Proponents of the restrictions argued, too, that the Congress should not authorize the use of tax funds to pay for abortions when it knew that the majority of the citizens were opposed to abortion for any purpose except to preserve the life of the mother. Several times, in both houses, members cited the New York Times-CBS poll of July 1977 which reported on whether people thought the government should help poor women to pay for: The argument was that taxpayers should not be required to pay for what they disapproved of on moral grounds. But the opponents of funding restrictions answered that precisely that argument, made by opponents of the Vietnam war, had been rejected by the Congress. It was more than once agreed that the issue under debate was a moral one and that religious conviction entered into the positions taken; to the argument, at times made, that the proponents of funding restrictions were seeking to impose an inherently religious belief on those who did not share the belief, several answers were made: that abortion funding, too, reflected a moral view and imposed it on the unborn; that the view that human life began at, or soon after, conception was the teaching of biology not of theology, the religious view coming into play only through the familiar and universal precept that innocent human life cannot be taken; and that, in any case, much of statutory law embodies moral beliefs and gives moral precept the force of law. While it was argued that acceptance of the exception allowing funding where the life of the mother would be endangered if the fetus were carried to term was a compromise of principle that opened the way to a range of further exceptions, including exceptions for rape and incest, severe fetal abnormality, serious health damage to the pregnant woman and grave threats to mental and emotional stability, the proponents of restriction throughout considered the life endangerment exception, itself thought to be subject to abuse, the only arguably defensible exception to the prohibition. The debate, in ultimate terms, dealt only with therapeutic abortions and came down to determining what therapeutic abortions would be funded. “Abortion on demand,” abortion for social convenience, abortion as an element of family planning, none of these found articulate sponsorship. Generalized health reasons were marshalled, although unsuccessfully, to support some special consideration for pregnant children in the lower teens, and to the health reasons were added arguments based on the usually unmarried indigent child-mother’s inadequacy to care for her child, to support herself, and to complete her education to the point of self-sufficiency. To some extent opponents of restriction on funding argued that the Congress should not make by public law the decision that the Supreme Court had said that it was the constitutional right of the pregnant woman to make privately in consultation with her physician, but, particularly after the Maher, Beal and Poelker decisions, the answer made was that denial of funding was not a denial of the constitutional right. Throughout opponents of restrictions on funding argued that such restrictions discriminated against the indigent; it was argued with some confidence before the Maher, Beal and Poelker decisions that the Court would invalidate the restrictions, and it was argued, after those decisions, on the other side, that they validated the HydeConte amendment of 1976. The decisions, however, hardly changed the trend of debate; opponents of restrictions, saying that the Court meant that federal and state legislatures should define funding policy, argued, as before, that Congress should not discriminate against the indigent by denying to them the means of making effective their decisions to terminate their pregnancies. In this context both sides argued that the Government should be neutral: proponents of restrictions on funding argued that by not funding the Government simply withdrew a factor that favored and encouraged abortion; opponents of restrictions on funding argued that to withdraw funding of abortions while continuing to fund childbirth abandoned neutrality, and denied the indigent the right to choose one alternative. The debates do reflect consciousness of the interest of the voters in the issue, and of the fact that some number of voters considered that a member’s or a candidate’s stand on the abortion issue alone would be decisive of how the voter used his or her ballot. The members of the House of Representatives were aware that they might be “punished at the polls” for their stand on abortion and abortion funding, and the debates refer more than once to the extent and zeal or organized advocacy, particularly on the side of the “right to life” group. Nearly all who took part in the debates deplored the circumstance that the issue was being debated upon a proposed amendment to an appropriations bill. It was recognized that under the rules of the House such an amendment was, strictly, almost certainly not in order since it evidently imposed affirmative duties of action on officers of government; it was noted more than once that the consequence was that there were neither hearings nor committee reports on the subject matter of the amendment. There were references to the hearings that had been conducted on the proposed constitutional amendment, and, as noted above, proponents of the funding restriction justified their course by reference to what they considered the unwholesome frustration of their efforts to bring a constitutional amendment respecting abortion to issue in both houses. Each side at one time or another charged the other with holding legislation hostage until the other side yielded on the issue. What is most remarkable in the long debates is that for all their complexity and occasional rhetorical brilliance neither side was remotely sensible of the evils that the other side saw clearly and sought to efface or at least ameliorate. The legislation finally passed in 1977 and in 1978 was so far a compromise of principle that Representatives Bauman, Conte, Flood and Hyde, advocates of the original Hyde amendment, voted against it. The critical last votes in the Senate were not recorded. The much shorter debates that led to the reenactment of the 1977 proviso as Section 210 of the 1979 Appropriation Act reflected no substantial change in the arguments made on both sides. The bill became law on October 18, 1978. Other enactments in October and November 1978 dealt with the abortion issue. The International Development and Food Assistance Act of 1978, in the past devoted to population planning and health planning, which emphasized reducing the rate of population growth in developing countries and motivation for small families, was amended to provide in 22 U.S.C. § 2151b(f)(l) that— “None of the funds made available to carry out this subchapter may be used to pay for the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions.” (P.L. 95-424, October 6, 1978, 92 Stat. 937, 946.) In the Foreign Assistance and Related Programs Appropriation Act, 1979, the Peace Corps appropriation provision read— “For expenses necessary for Action to carry out the provisions of the Peace Corps Act, as amended (22 U.S.C. § 2501 et seq.) $95,000,000; . . . Provided further, That none of the funds appropriated in this paragraph shall be used to pay for abortions.” (P.L. 95-481, 92 Stat. 1591, 1597). Section 863 of the Department of Defense Appropriation Act, 1979, enacted October 13,1978 (P.L. 95-457, 92 Stat. 1231, 1254), was in exactly the language of Section 210 of the DHEW Appropriation Act, 1979 (92 Stat. 1567, 1586). The amendment of Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy (designed to deal with a holding in Nashville Gas Co. v. Satty, 1977, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356) (P.L. 95-598 of November 6, 1978, 92 Stat. 2679) emerged as 42 U.S.C. § 2000e(k) in the following form: “(k) The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.” The legislation providing for the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (P.L. 95-622, 92 Stat. 3412, 3439) provided (42 U.S.C. § 300v-l(a)(l)) that— “The Commission shall undertake studies of the ethical and legal implications of— ****** (B) the matter of defining death, including the advisability of developing a uniform definition of death; (C) voluntary testing, counseling, and information and education programs with respect to genetic diseases and conditions, taking into account the essential equality of all human beings, born and unborn.” Earlier, The Legal Services Corporation Act included a provision, 42 U.S.C. § 2996f(b), that no funds made available to the Corporation under the subchapter by grant or contract may be used— “(8) to provide legal assistance with respect to any proceeding or litigation which seeks to procure a nontherapeutic abortion or to compel any individual or institution to perform an abortion, or assist in the performance of an abortion, or provide facilities for the performance of an abortion, contrary to the religious beliefs or moral convictions of such individual or institution . . . When subsection (b) was extensively amended by P.L. 95-222, on December 28, 1977, 91 Stat. 1619,1622, the Congress reenacted subdivision (8) without change. The Civil Rights Commission in its 1975 report, “Constitutional Aspects of the Right to Limit Childbearing,” page 101, had recommended amending the Act to permit abortion related suits. III The Hyde-Conte amendment of 1976 and its successors, coupled with the decisions in Maher, Beal and Poelker, have been dominant factors in state abortion legislation, state administration of medicaid in the abortion context, and in drastically reducing the number of federally funded medicaid abortions. The alterations in state law and administration precipitated a number of suits challenging the validity of the amended laws and altered regulations. After the Maher, Beal and Poelker decisions, and the termination of the restraining order in the present case, certain states which were already applying a “medically necessary” standard continued to do so (Alaska, California, Colorado, District of Columbia, Hawaii, Idaho, Illinois, Maryland, Massachusetts, Michigan, New Hampshire, New York, Oregon, Pennsylvania, South Dakota, Virginia, Washington, West Virginia, and Wisconsin) although the scant reported data indicate wide differences in administering the criterion. Twenty-five states soon commenced to apply the standard of the Hyde-Conte 1976 amendment; they were states that had reported 288,363 of the 988,-267 legal abortions reported to CDC for 1976. Three states restricted reimbursement to abortions performed to preserve the woman’s life. Wyoming provided reimbursement for abortions in the case of rape, incest and where the life of the mother is endangered. Minnesota had no effective regulations and stopped all reimbursement at September 1977 until after it enacted a “preservation of life” statute. After the December 9, 1977, enactment the Secretary on January 26, 1978, issued regulations which were amended in July 1978; the states that had covered “medically necessary” abortions in the main continued to do so, or were required to do so, and litigation resulted in adding Illinois, New Jersey, and Massachusetts to the states providing “medically necessary” procedures. Seventeen states, principally from among those that had adopted the Hyde-Conte 1976 standard, followed the federal lead in adopting the standard of the December 9, 1977, “Hyde amendment.” Nine states have adhered to or adopted the standard of the Hyde-Conte amendment of 1976. Iowa, California and Maryland have more recently provided funding for abortion where the fetus is physically deformed, mentally deficient, or afflicted with congenital illness. Kentucky and South Dakota adopted a “preservation of life” standard like that earlier adopted by Rhode Island and North Dakota. A Litigation has to some extent modified the pattern of state law and administration governing abortion funding. Soon after Maher, Beal and Poelker, it was indicated in Emma G. v Edwards, E.D.La.1977, 434 F.Supp. 1048, 1050, that under Title XIX of the Social Security Act therapeutic abortions are medically necessary procedures, requests for payment for which should be processed and paid as are all other requests for payment for medically necessary services. The court invalidated the Louisiana statutory requirement that all abortions, including those performed in the first trimester, be performed in a licensed hospital. In a later decision in the same case (November 27,1978) the court held that Louisiana statute forbidding the use of public funds for abortion “except when the abortion is medically necessary to prevent the death of the mother” violated the requirements of Title XIX by failing to cover “medically necessary” abortions; the court declined to pass on the effect of the 1976 and 1977 forms of the “Hyde amendment.” Without passing either on the question of the interpretation of the Title XIX standard or the effect of the 1976 and 1977 “Hyde amendments,” the court in Doe v. Kenley, 4th Cir. 1978, 584 F.2d 1362, held that, Virginia having adopted the policy of eliminating funding only for non-therapeutic abortions, as defined in Beal and Maher, the standard used in the required physician’s certificate should be “substantial endangerment of health” and not “endangerment of life,” and that the state health authorities should be directed immediately to issue a public notice for the benefit of recipients and a written communication to physicians and hospitals participating in the medicaid program which “clearly set forth the standard for reimbursement to be one based upon a physician’s professional medical judgment that the health of the recipient would be substantially endangered if the fetus were carried to term and that such judgment shall ‘be exercised in light of all factors— physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient,’ Beal v. Doe, 432 U.S. at 442, n. 3, 97 S.Ct. [2366] at 2369, n. 3, citing Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201”. The court authorized changes in the certificate forms and in the regulations to conform to federal requirements for federal funding of abortions for which the state chose to seek federal funds. In Smith v. Ginsberg, S.D.W.Va.1978 (Civil Action No. 75-0380CH), the court decided that the state did not have to include coverage of unnecessary abortions in its plan but was required by Title XIX to cover all “necessary medical services,” and, therefore, to fund “necessary (i. e., therapeutic) abortions”; the court expressed a doubt about the effect of the “Hyde amendment” and retained jurisdiction pending further consideration of that issue. Roe v. Casey, E.D.Pa.1978, 464 F.Supp. 487, challenged the validity of the Pennsylvania law forbidding medical assistance payments for any abortions except those necessary to save the life of the mother. The plaintiffs were women whose pregnancies did not endanger their lives but whose physicians had certified that in their cases abortions were medically necessary: one plaintiff suffered from hyperemesis gravidorum and pregnancy complicated that condition; another plaintiff was a thirteen year old whose small pelvis implicated probable difficult labor and internal damage, increased incidence of pre-eclampsia and adverse affectation of her nutritional status; the third plaintiff, having a history of psychiatric problems, had been hospitalized because of an attempted suicide, and her physician certified that her pregnancy had increased her depression, that she was capable of suicide and that an abortion was necessary to avert severe psychological damage. The court held that Title XIX of the Social Security Act required participating states to provide all “medically necessary” services, including “medically necessary” abortions, to eligible participants and that by limiting medicaid reimbursement to those abortions that were necessary to save the mother’s life the state arbitrarily discriminated among medically necessary abortions on the basis of diagnosis, type of illness or condition involved (cf. 42 C.F.R. § 440.230(c) as amended). The court considered that the 1977 “Hyde amendment” simply affirmed the conclusion in Beal that the states were not required to fund non-therapeutic abortions. Preterm, Inc. v. Dukakis, 1st Cir. 1979, 591 F.2d 121, considered the validity (in terms of compliance with Title XIX and with the “Hyde amendment” of 1977) of the Massachusetts statute that limited state funding of abortion to those “necessary to prevent the death of the mother” and to those procedures “necessary for the proper treatment of the victims of forced rape or incest.” The court held that Beal should not be read as a ruling that all services within the five types of service required to be furnished to the categorically needy (e. g., AFDC eligibles) that a patient’s physician deems “medically necessary” must be provided by the state’s plan; the legislature has first to decide what kinds of medical assistance are sufficiently necessary to be covered in its Title XIX plan; the physician decides whether his patient’s condition warrants administering a type of medical assistance that the plan covers. The statute was to be tested by answering the question whether or not limiting abortions as it did was “reasonable” and “consistent with the objectives of” Title XIX, as 42 U.S.C. § 1396a(a)(17) requires. The court found that the Massachusetts statutory limitation violated the purposes of Title XIX and discriminated impermissibly among medically complicated pregnancies — a discrimination based on medical condition that 42 C.F.R. § 440.230(c)(1) forbids. The court found that the 1977 “Hyde amendment” did not embody a reasonable standard consistent with the objectives of Title XIX (42 U.S.C. § 1396a(a)(17)), that the amendment could not be read as denying federal funding while nevertheless continuing the Section 1396a(a)(17) requirement that state plans embody reasonable standards consistent with the objectives of Title XIX, but that the amendment constituted a substantive policy decision concerning the public funding of abortions which left the states free to fund more abortions than those for which the amendment made federal funds available but did not require them to do so. Title XIX, “to the extent of its repugnancy with the Hyde Amendment, has therefore been altered by the Amendment.” The court differed from the district court in concluding that Title XIX “does not mandate that a state provide all medically necessary services as determined by the physician.” The case was remanded for consideration of the constitutionality of the “Hyde amendment,” construed as a substantive alteration of Title XIX and thus requiring the states to establish plans that provide abortion services in no more than those instances specified in the amendment. In Reproductive Health Services v. Walsh, W.D.Mo.1979 (No. 77-4171-CV-C) the court held that the Missouri regulation, limiting abortion funding to the cases in which the physician in his best judgment believes that full-term pregnancy and childbirth would cause cessation of the mother’s life, contravened Title XIX and transgressed the equal protection clause; the court held that the state did not have to bear the cost of all “medically necessary” abortions but was required only to fund abortions for the needy insofar as it received medicaid reimbursement under the “Hyde amendment.” Zbaraz v. Quern, 7th Cir. 1979, 596 F.2d 196, followed Preterm, Inc. v. Dakakis, supra, in holding that the Illinois statute limiting funding to abortions necessary to preserve the life of the pregnant woman was violative of Section 1396a(aX17) and 42 C.F.R. § 440.230(c)(1), and in holding that the “Hyde amendment” altered the substantive requirements of Title XIX. In remanding the case for consideration of the constitutionality of the “Hyde amendment” the court said (596 F.2d at 202): “This consideration should include, inter alia, whether the Hyde Amendment, by limiting funding for abortions to certain circumstances18 even if such abortions are medically necessary, violates the Fifth Amendment in view of the facts that no other category of medically necessary care is subject to such constraints and that abortion has been recognized as a fundamental right. Roe v. Wade, supra .” Footnote 18 reads: “The constraints imposed by the Hyde Amendment on medically necessary abortions which are not imposed on other kinds of medically necessary care include (1) a greater degree of potential harm from withholding treatment (the threatened damage in the case of an abortion must be ‘severe and long-lasting’), (2) the threatened harm must be physical, and (3) two doctors must make the determination of likely harm.” Upon remand the district court on April 29, 1979, decided that both the Illinois statute and the “Hyde amendment” were invalid on equal protection grounds, and its final decree required Illinois to fund medically necessary abortions prior to viability; the district court refused to stay the injunction pending appeal. On May 24,1979, Mr. Justice Stevens denied the appellants’ applications for a stay. Committee to Defend Reproductive Rights v. Myers, 1979, 93 Cal.App.3d 492, 156 Cal.Rptr. 73, dealt with a statute providing funding for abortions where the life of the mother would be endangered if the fetus were carried to term, where the pregnancy resulted from promptly reported rape, unlawful intercourse, or incest, where amniocentesis indicated that the child was likely to suffer from certain genetic or congenital abnormalities, and where severe and long-lasting physical health damage would result if the pregnancy were carried to term on account of any of ten specific conditions or diseases when so certified under penalty of perjury by two physicians. The court held that the statute transgressed Title XIX as modified by the “Hyde amendment” in limiting the severe and long-lasting health damage to the ten enumerated conditions. The court in Doe v. Busbee, N.D.Ga.1979, 471 F.Supp. 1326, did not address the constitutional issues, finding that the statutory issue was dispositive of the case. Under the state’s rules governing medical assistance medicaid reimbursement for abortion was available only in the instances outlined in the “Hyde amendment” as enacted in 1977. The court concluded that Title XIX required state plans to provide all medically necessary services to the categorically needy which fell within 42 U.S.C. § 1396d(a)(l)-(5), that abortion was a medical procedure within the five general categories, and that in consequence the Georgia rules were inconsistent with the objectives of Title XIX (42 U.S.C. § 1396a(a)(17)). Declining to follow Preterm and Zbaraz in holding that the “Hyde amendment” substantively modified Title XIX, the court held that the amendment operated only to restrict the use of federal funds for abortions. The court enjoined the defendant public officers from refusing to provide medicaid reimbursement for the medically necessary abortions of the plaintiffs. Right to Choose v. Byrne, 169 N.J.Super. 543, 405 A.2d 427, Chancery Division, Middlesex County, 1979 (No. C-3817-77), somewhat similarly, held invalid proposed guidelines for abortion funding framed in the language of the 1977 “Hyde amendment”; the court reasoned that withholding medicaid funding for medically necessary abortions, although such funding had been previously available, was unconstitutionally discriminatory against medicaid eligible women with a medical necessity for an abortion, was without warrant in a compelling state interest, and was violative of the equal protection clause; the court considered that restrictions on the right to public benefits for the protection of one’s health, which had theretofore been provided by general legislation, could be sustained only if a compelling state interest justified withholding medicaid funding for medically necessary treatment or procedure. The court authorized an injunction providing for funding of abortions where the medical indications as to the necessity of an abortion are not insignificant and relate to the physical and/or psychological condition of the woman and are not based solely on considerations of family planning or emotional or social convenience. And Hodgson v. Board of County Commissioners, D.Minn. July 13, 1979 (4-78 Civ. 525 and 3-79 Civ. 56), held invalid under Title XIX the provision of the Minnesota funding law which restricted funding for therapeutic abortions to those in which two physicians certified that the abortion was necessary to prevent the death of the mother and the woman had given her consent in writing; the court concluded that the “Hyde amendment” did not substantively alter or amend Title XIX, and it made no finding or conclusion respecting the constitutionality of the amendment. Similarly, Planned Parenthood Affiliates of Ohio v. Rhodes, S.D.Ohio, 1979, 477 F.Supp. 529, invalidated under Title XIX an Ohio statute forbidding the use of state funds, or federal “pass-through” funds, to pay for abortions unless two physicians stated in writing that the abortion was “medically necessary to prevent the death of the mother,” or unless the pregnancy resulted from rape reported within forty-eight hours after the incident or within forty-eight hours after the victim had become physically able to report the rape (as certified by two physicians), or unless the pregnancy resulted from an incest reported, with the name of the guilty relative, before the abortion was performed. The court rejected the view that the “Hyde amendment” either substantively amended Title XIX or relieved the states of their obligation to fund all those services required to establish consistency with the objectives of Title XIX even though one or more of the required services might not be reimbursed by the federal government. Doe v. Percy, W.D.Wis., 1979, 476 F.Supp. 324, granted a preliminary injunction against Wisconsin’s making any payments under its Medical Assistance Plan for medical services related to pregnancy unless it also provided funds “for all medically necessary abortions [for indigent women eligible under the Plan] in the same manner and under the same procedures applicable to reimbursement for pregnancy related medical care.” Plaintiff Doe had become pregnant while under psychiatric treatment; her psychiatrist diagnosed her as suffering from a depression neurosis including suicidal feelings and threats, which, in the psychiatrist’s medical judgment, had to be taken as a serious threat to her life and health; referred to an obstetrician and gynecologist,