medical care when federal matching funds are unavailable.
None of these statements, it should be noted, purports to be a binding statement on the legal obligations of the state by an official or body authorized to make such statements.
The relevance of all this to this case presumably is that officials in the District of Columbia and Virginia would say something similar. But the Court can hardly infer from these statements that there is a "substantial likelihood" that the District of Columbia and Virginia will withhold payments to the plaintiffs.
However, even if the Court took a more favorable view of these statements than it does, and accepted as proven that the relevant jurisdictions will refuse to make the payments themselves, this would not wholly answer the question. For, as indicated in Part I above, both the District of Columbia and Virginia have undertaken, under their local plans, to pay for abortions in situations such as are contemplated in this case. Until amended, these plans continue in force and no change is authorized in the level of services which must be provided. 45 C.F.R. § 201.3 (1975). Nor can the level of services called for in the plans be reduced before recipients are given "timely and adequate" notice of the change. 45 C.F.R. § 206.10(a)(7) (1975). Since it does not appear that the District or Virginia has either moved to amend its plan or taken "proposed action to discontinue, terminate, suspend or reduce assistance" related to the treatment of pregnancy, id., they may well be legally obligated to continue to pay for these abortions under their Medicaid plans.
Nor have the plaintiffs alleged that the District of Columbia and Virginia are free to discontinue paying for abortions under Title XIX. In Doe v. Beal, 523 F.2d 611 (3d Cir. 1975) (en banc), cert. granted, 428 U.S. 909, 96 S. Ct. 3220, 49 L. Ed. 2d 1216 (1976), the Court of Appeals for the Third Circuit held that Title XIX commands the states to fund abortions in situations where, as here, the jurisdiction has decided to pay for the health care of women who elect to give birth to a child. True, Beal was decided before the Hyde Amendment became effective. But the effect of this provision on that case may not be significant, especially since Title XIX only binds the federal government to reimburse the states "[from] the sums appropriated therefor." 42 U.S.C. § 1396b(a) (1970). A state, then, may have assumed the risk, in setting up its medical assistance program, of in fact paying for a somewhat greater share of the cost of the program than it might have originally anticipated. Certainly, plaintiffs have made no showing to the contrary.
Finally, the plaintiffs have failed to suggest that Virginia and the District of Columbia are free to refuse to pay for these abortions under the U.S. Constitution. Several courts have held that the states participating in the Medicaid program are under a general constitutional obligation to fund abortions on an equal basis with other medical care and with childbirth care. Roe v. Norton, 408 F. Supp. 660 (D. Conn. 1975), prob. juris. noted sub nom. Maher v. Roe, 428 U.S. 908, 96 S. Ct. 3219, 49 L. Ed. 2d 1216 (1976); Doe v. Rampton, 366 F. Supp. 189 (D. Utah 1973). True again, these cases were decided before the Hyde Amendment became effective, but again, it is not clear that this would change the result in those cases either.
Despite all these contingencies, the plaintiffs have nevertheless suggested that, whatever the District of Columbia and Virginia may do, and whatever they may be obligated to do, the fact remains that physicians are not now likely to perform abortions for women such as those in this case because of fears that these jurisdictions would not reimburse them for the operations. But for all that appears on the record, this may simply be because the physicians are ignorant of how the Medicaid system works and of what the legal obligations of the District of Columbia and Virginia might be.
In sum, the plaintiffs simply have not shown that if relief is denied in this case they will suffer an injury of any substance whatsoever. The Court therefore concludes that the plaintiffs have not alleged a ripe "case or controversy" over which this Court can constitutionally exercise jurisdiction.
For all of the above reasons, the Court also holds that the plaintiffs have not alleged that the injury they fear is so imminent as to require the exercise of the Court's equity jurisdiction. See O'Shea v. Littleton, 414 U.S. 488, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974). But one additional consideration bolsters this determination. It is a matter of strict federal policy that courts avoid deciding questions of federal constitutional law when it is reasonably possible that an alternative nonconstitutional ground exists for reaching the same result. Ashwander v. TVA, 297 U.S. 288, 345-48, 80 L. Ed. 688, 56 S. Ct. 466 (1936). Cf. Singleton v. Wulff, 428 U.S. 106, , n.3, 49 L. Ed. 2d 826, 833, 839, 96 S. Ct. 2868 (1976). This principle applies in this case. As indicated in Part IIIB above, there is a fair possibility that a court can avoid deciding the difficult question of whether the federal government can constitutionally refuse to contribute to the performance of certain abortions by construing local medical assistance plans or a federal statute. Of course, this Court does not have the power in this case to indicate whether in fact that constitutional issue can be avoided or not. But since the plaintiffs here can be left to that recourse without any apparent injury to them, this Court finds that, as a matter of equity jurisdiction also, this case should be dismissed. See O'Shea v. Littleton, supra.
For the reasons indicated above, it is this 21st day of October, 1976,
ORDERED that this action be, and the same hereby is, dismissed for lack of jurisdiction.
John J. Sirica / United States District Judge