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October 2, 1976

DENISE DOE, et al., Plaintiffs,
F. DAVID MATHEWS, Secretary of Health, Education and Welfare, et al., Defendants

The opinion of the court was delivered by: SIRICA

 This action has been brought by a number of women residents of the District of Columbia and Virginia, a doctor and a clinic to enjoin the Secretary of Health, Education and Welfare from complying with a provision of a federal appropriations statute. The provision, known as the Hyde Amendment, Labor-HEW Appropriations Act, Pub. L. No. 94-439, § 209 (Sept. 30, 1976), prohibits the Secretary of Health, Education and Welfare ("HEW") from using any money appropriated to him for the fiscal year beginning October 1, 1976, "to perform abortions except where the life of the mother would be endangered if the fetus were carried to term." This limitation would apply to funds appropriated for Medicaid, and, as persons eligible for Medicaid benefits or as recipients of Medicaid funds, the plaintiffs claim it is unconstitutional.


 The operation of Medicaid is primarily governed by Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (1970), as amended, (Supp. V., 1975), and by regulations promulgated thereunder. Basically, it is a system whereby the federal government undertakes to help the states and the District of Columbia *fn1" pay for the medical needs of their poor residents. To qualify for this aid, a jurisdiction must establish a medical assistance program to pay for a certain minimum number of medical services for its "categorically needy" residents. See 42 U.S.C. § 1396a(a)(13)(B) (1970); 45 C.F.R. § 249.10(a)(1) (1975). Beyond that, a jurisdiction can also obtain more federal aid if it wishes to pay for certain additional medical services for the categorically needy and other "medically needy" as well. See 42 U.S.C. § 1396a(a)(10)(B) (1970); 45 C.F.R. § 248.10(d)(1) (1975).

 For its part, the federal government under Title XIX undertakes to reimburse participating jurisdictions for all the necessary medical expenses incurred in the administration of the local medical assistance program, but only to the extent of certain percentages, which vary depending on the service, and only to the extent of money appropriated by Congress for the purpose. 42 U.S.C. § 1396b (1970). As the system works in practice, the federal government every quarter makes advance payments to each participating jurisdiction. That payment is intended to approximate the expenses the particular jurisdiction will incur under its medical assistance program during that period. If the payment in fact exceeds or is less than the actual expenses incurred, an appropriate adjustment is made in the following quarter's advance. 45 C.F.R. § 201.5 (1975). On October 1, 1976, a new quarter began, and advance payments were presumably sent out at that time in accordance with the limitation imposed by the Hyde Amendment.

 Seen in this light, the Hyde Amendment appears to be simply a limitation on the federal government's undertaking under Title XIX to reimburse the jurisdictions participating in the Medicaid program. And the limitation is a narrow one, for the legislative history of the Amendment makes clear that Congress only intended to prohibit payment for abortions done as a "method of family planning or for emotional or social convenience." H.R. (Conf.) Rep. No. 94-1555, 94th Cong., 2d Sess. 3 (1976).


 This suit was filed on October 1, 1976, the day after Congress passed the Labor-HEW Appropriations Act over the President's veto, and the day the Act became effective. Joined as plaintiffs at the present time are six women, *fn2" a doctor who regularly performs abortions, and a clinic at which abortions are often performed.

 Three of the female plaintiffs are now pregnant; as of October 8, 1976, one was six weeks, another seven weeks, and the third was twelve weeks pregnant. Each of these plaintiffs is a resident of the District of Columbia and is eligible for Medicaid benefits under the D.C. medical assistance program. Each would like to have an abortion either for emotional or social convenience or for family planning reasons, but claims that she may not be able to because the Hyde Amendment prevents the use of Medicaid funds for such abortions and because she may not be able to afford to pay for the operation herself.

 The other female plaintiffs have already had abortions, all for emotional or social convenience or for family planning reasons; all had them on September 23, 1976. These women were between five and seven weeks pregnant at the time the operations were performed. Two of them are residents of the District of Columbia and one is a resident of Virginia. Each is eligible for Medicaid under her local medical assistance program, but none has yet received notice that her abortion was paid for through that program. These plaintiffs concede that this in itself does not mean much, however, since the local medical programs normally take six to eight weeks to pay for the medical services rendered under Medicaid. But nevertheless, they claim that, since their reasons for having the abortions would not permit federal funds to be spent on their abortions, the local medical assistance programs will not pay for their operations. These plaintiffs have not alleged, however, that each will be personally liable for the cost of her abortion if the local jurisdiction does not pay for it.

 The seventh plaintiff is Milan Vuitch, M.D. He has performed and supervised abortions in the past on women eligible for Medicaid and would like to continue to do so in the future. The plaintiff Laurel Clinic, Inc., is an abortion clinic of which Dr. Vuitch is the medical director. The abortions that have already been performed on the female plaintiffs in this case have been done by Dr. Vuitch or under his supervision at the Laurel Clinic. Neither Dr. Vuitch nor the clinic has yet been paid for the three abortions that have been performed and, they claim, neither will be paid.

 All of the plaintiffs made the same basic claim, namely, that the Hyde Amendment impermissibly burdens the right of the female plaintiffs to exercise their fundamental right under Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), to decide for themselves, in consultation with their physicians, whether or not to have abortions, and unreasonably discriminates against the exercise of that right by continuing to allow federal funds to be spent for other medical services and for childbirth care. This, they claim, violates the Due Process Clause of the Fifth Amendment of the U.S. Constitution. *fn3"

 To obtain relief, the plaintiffs have sued the Secretary of HEW, who is the one in control of the federal funds appropriated for disbursement under Medicaid, to obtain an injunction preventing him from limiting his disbursements as provided in the Hyde ...

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