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October 22, 1976

Cora McRAE, Individually and on behalf of all others similarly situated, et al., Plaintiffs,
F. David MATHEWS, Secretary, United States Department of Health, Education and Welfare, Defendant. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Plaintiff, v. F. David MATHEWS, Secretary, Department of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: DOOLING


 DOOLING, District Judge.

 By these actions plaintiffs seek to invalidate Section 209 of Public Law 94-439, the Departments of Labor and Health, Education, and Welfare Appropriation Act, 1977; that section became law on September 30, 1976. It provides that:

None of the funds contained in this Act shall be used to perform abortions except when the life of the mother would be endangered if the fetus were carried to term.

 The Act is the general appropriation Act for the fiscal year ending September 30, 1977, and it includes provision for Medicaid reimbursement.

 The part of the Conference Report on the bill dealing with Section 209 is quoted as saying (inter alia)

It is not our intent to preclude payments for abortions when the life of the woman is clearly endangered . . . 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 the treatment of rape or incest victims . ..
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The Congress is aware that there are three cases related to this issue to be heard by the Supreme Court this fall, and wishes to make clear that the Congress in its action on this particular appropriations bill does not intend to prejudge any constitutional questions involved in those cases.

 It has been decided in this state that Medicaid reimbursement may not constitutionally be denied for "elective abortions" (Klein v. Nassau County Medical Center, 347 F. Supp. 496, (E.D.N.Y. 1972)), On remand, 409 F. Supp. 731 (E.D.N.Y. 1976) and it has been decided in this circuit that a state cannot constitutionally deny medical assistance to indigent women seeking "elective abortions" in the first trimester of pregnancy (Roe v. Norton, D.Conn. 1975, 408 F. Supp. 660). Both decisions arose specifically in the Medicaid context under state plans adopted under 42 U.S.C. 1396a. Both are on appeal in the Supreme Court.

 The parties agree that there is no material controversy about the facts. Plaintiffs show the following facts:

 Plaintiff Cora McRae is a citizen and resident of New York in the first trimester of pregnancy and in consultation with a physician has decided to terminate her pregnancy. She is without means and relies on Medicaid for all medical care. Plaintiff Planned Parenthood is a non-profit New York corporation which provides family planning services and also, at state-licensed clinics, provides about 300 first trimester abortions each month for patients eligible for Medicaid. In the first six months of 1976 it provided 6,253 abortions of which 1,777 were for Medicaid patients for which billings were about $260,000. In 1975 it provided 2,202 abortions for Medicaid patients and received $288,636 in Medicaid reimbursement. Plaintiff Irwin B. Teran is a licensed physician who specializes in obstetrics and gynecology. About half of the patients he treats at his Bushwick office are Medicaid eligible and about one-quarter of the income of that office is derived from Medicaid reimbursements for first and second trimester abortions; he performs about three Medicaid abortions a week. (The Medicaid reimbursement to Dr. Teran is $100 for each abortion, a sum much below the usual fee for such an operation.)

 The individual plaintiffs and Planned Parenthood are each representative of many others similarly situated and who are similarly affected by the prohibition of the new enactment.

 The New York City Health and Hospitals Corporation is a public benefit corporation charged with the responsibility for providing comprehensive health and medical services for the people of New York City and with operating sixteen municipal hospitals, twelve of which perform abortions. The most recent statistics compiled show that in 1974 the municipal hospital system provided 10,324 abortions for Medicaid eligible persons. The Hospitals Corporation anticipates, reasonably, that if federal funding is denied, private physicians, voluntary hospitals and clinics will cease providing abortion service for those generally eligible for Medicaid because of apprehension that the withdrawal of federal funding will result in their not being reimbursed. The consequence will be a great increase in the demand on the municipal hospitals for abortion services. Denial of federal funding will in turn diminish the municipal hospitals' capacity to render adequate medical care to their patients and in particular to indigent women, lawfully seeking to terminate pregnancies. The municipal hospitals are not free under the law as they understand it to deny such abortions.

 The municipal hospitals provide over half of all the ambulatory-patient care and emergency room visits provided in New York City and provide about 40 percent of all inpatient care furnished in the City. They provide annually three million days of inpatient care and nine million ambulatory patient and emergency room visits. The municipal hospitals have provided elective abortions since July 1, 1970, following the enactment in its present form of Penal Law ยง 125.05. In the period before the Wade and Bolton decisions, from July 1, 1970 to January 1, 1973, the municipal hospitals performed 68,024 abortions for New York City residents; of these 33,914 were for patients who were eligible for Medicaid. In the same period the voluntary and proprietary hospitals and the clinics performed 112,672 abortions for city residents, of whom about 32,169 were Medicaid eligibles. In the two years following the Supreme Court decisions, the municipal hospitals performed 42,005 abortions for city residents, of whom half were Medicaid eligibles; in the same period the voluntary and proprietary hospitals and the clinics performed 169,799 abortions for city residents, of whom 35 percent were Medicaid eligibles.

 New York City Department of Health Statistics record 830,780 abortions performed in the six years 1970-1975 of which 405,742 were performed for residents. (The number performed for nonresidents is still substantial but only a fraction of what it was in 1971 and 1972.) In the years 1970-1974 abortions performed in New York City for its residents were for the most part performed in the first trimester. In 1972-1974 over 83 percent were performed in the first trimester; in 1971 the percentage was 79 percent. In the same years over half the abortions were performed for non-whites and Puerto Ricans. Incomplete 1975 statistics record 81,426 abortions for residents of the city, 16,478 being performed in municipal facilities about half of which were performed for Medicaid eligibles, representing Medicaid reimbursement of $2,306,920.

 The New York Department of Social Services through its Commissioner has taken the position throughout the litigation in Klein v. Nassau County Medical Center, supra, that the State Medicaid plan does not provide reimbursement for any abortions except those which are "medically necessary." The Commissioner has appealed the decision in the Klein case requiring reimbursement to providers who perform abortions during the first twenty-four weeks from the commencement of pregnancy regardless of whether such abortions are medically necessary or not. The Commissioner's Administrative Letter 76 ADM-92 of September 3, 1976, directed local Social Service Commissioners to allow claims for legal abortions performed for Medicaid eligibles by qualified providers, and that

. . . usual billing procedures shall be followed, and any bill for an abortion should be handled as a bill for a surgical procedure.
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It should again be noted that abortions are not considered family planning procedures and therefore may not be claimed at the 90% Federal and 5% State reimbursement levels. They should be claimed at the usual ...

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