The opinion of the court was delivered by: DOOLING
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, 98 S. Ct. 27, 54 L. Ed. 2d 11 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.
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 201, 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.
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 child-bearing 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)(1)-(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.
" "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."
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 Hyde-Conte 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 child-birth 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)(1) 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-1(a)(1)) 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.
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.
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. Dukakis, 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(a)(17) 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 circumstances 18 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."
"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)(1)-(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, plaintiff Doe requested an abortion; the obstetrician, although he concurred in the psychiatrist's judgment "that an abortion was necessary to preserve Doe's health," declined to perform the abortion because he would not have been reimbursed for it under the Wisconsin Medical Assistance Program. The Wisconsin statute provided funding for only those abortions "directly and medically necessary to save the life of the woman," or "directly and medically necessary to prevent grave, long-lasting physical health damage to the woman," or in cases in which the pregnancy resulted from sexual assault or incest. After a painstaking analysis of the Poelker and Maher cases in the light of Roe v. Wade, the court concluded
"I rely upon Roe v. Wade in assessing the probability that plaintiffs will ultimately prevail in their contention that when the right of choice (between childbirth and abortion) is claimed by a woman whose health is threatened by a continuation of a pregnancy, the right is to be regarded as fundamental. It is that same authoritative decision, as it happens, in which it was decided that in a case like this one, the governmental interest in potential life is insufficiently compelling to override the freedom of the pregnant woman to choose abortion even in the final stages of pregnancy. I hold that plaintiffs enjoy a strong probability of ultimate success in their contention that this interest of the state in the challenged classification embodied in (the Wisconsin statute) is insufficiently compelling. If this is correct, no other governmental interest could qualify as compelling."
The earlier case of D.R. v. Mitchell, D.Utah 1978, 456 F. Supp. 609 upheld, against constitutional and Title XIX arguments, the Utah statute limiting funding to the cases in which the mother's life would be endangered if the abortion was not performed. The court declined to hold that funding should be extended to those cases arising after December 7, 1977, in which there would be severe and long-lasting physical health damage to the mother if the pregnancy were carried to term. The court considered that the state did not have to fund every medical service for which there might be federal reimbursement under Title XIX.
The necessarily incomplete data on the number of federally funded medicaid abortions performed after the restraining order in the present case was terminated have been separated as between the reported cases from August 4, 1977, until February 13, 1978, when the Secretary's regulations became effective and later periods. The data for the first period are both incomplete and of limited reliability because of a complex of reporting problems. However, in light of later and better data they appear to portray correctly, as far as they go, the effect of the amendment and the Maher, Beal and Poelker decisions. These data, revised to June 7, 1978, for twenty-two states (excluding New York, California, Illinois and Pennsylvania) show a radical decrease in average monthly number of abortions. The form that the local laws took appears not to have had a controlling effect. Grouped by (A) states using essentially the "Hyde amendment" language, (B) states funding only "life endangerment" cases, (C) states funding only abortions to "preserve life", and (D) states using the "life endangerment" and also rape and incest language, the monthly average number of medicaid funded abortions in the year 1976 (AGI) and in the fiscal year 1977 (DHEW), and in the six and a third months from August 4, 1977, to February 13, 1978 (DHEW), were as follows:
Figures given for Connecticut alone indicate the following trend in federally funded medicaid abortions in the months September through January 1976-1977 as compared with the same month in the next years:
The total numbers of reported medicaid abortions in the indicated periods in 1978, starting with February 14, 1978, when the regulations took effect, arranged by the assigned reason for the abortion, were as follows:
The figures by states for the twenty-two states that reported medicaid abortions for the last quarter of 1978 evince striking anomalies. Seven states, reporting 130 of the 780 medicaid abortions of the quarter, reported none under "severe and long-lasting health damage" and none under "rape or incest". Ohio reported 386 medicaid abortions (373 under life endangerment); that was 49% of the national total, and for the whole period, February 14 to December 31, 1978, Ohio reported 33% of the national total. Illinois, reporting 59 abortions in the last quarter of 1978, assigned 15 to life endangerment, 41 to severe and long-lasting health damage, and 3 to rape or incest. Illinois' report accounted for 47% of the total cases assigned to severe and long-lasting health damage. New York reported 55 medicaid abortions for the last quarter of 1978, 54 for life endangerment, one for severe and long-lasting health damage. Oregon, reporting 22 medicaid abortions in the last quarter of 1978, reported 14 under "rape or incest", six under life endangerment and two under severe and long-lasting health damage. The percentage distribution by assigned reasons of those reported medicaid abortions which did state the reasons for the abortion was as follows:
The fear was expressed during the debates in Congress by opponents of restrictions on abortion funding that the restrictions would result in an unacceptable increase in maternal deaths and serious complications arising from self-induced abortions and abortions performed by unlicensed and unskilled practitioners. Some such consequence was inevitable, but the data thus far available are not sufficient to demonstrate the extent of this consequential effect of the restriction on abortion funding. An attempt was made within CDC to project the increased maternal mortality that would result from denying abortion funding because of both the substitution of nonlegal abortion for lawful abortion and of normal childbirth for abortion; it was estimated that five to ninety additional maternal deaths would occur annually. It is an easy and clear inference from the CDC's Abortion Surveillance, 1975 (issued April 1977) that the CDC considered that the availability of adequate abortion facilities was directly related to the rate of maternal death due to abortion and that for some women those dependent on public assistance the lack of public funding for legal abortion acted as a deterrent to their obtaining safer procedures (pp. 7-10). A CDC report based on review of 250 McAllen (Texas) Hospital charts coded as abortion-related complications admitted from January 1977 through January 1978 disclosed that such admissions averaged 20 a month before August 4, 1977, when subsidies for abortion became unavailable to medicaid eligible women in Texas, and 17 a month after that date; however, of the febrile cases admitted only one has a medicaid recipient admitted before August 4th, and four admitted after August 4th were medicaid recipients, and seven women were admitted with complications ascribed to illegal abortions after August 4th as compared with four admitted before that date. One woman admitted after August 4th with septic complications following an illegally induced abortion died; the reporting CDC reviewer expressed the opinion that "as a result of the Medicaid restriction, the fatal case, sought and obtained, a low cost illegal abortion which resulted in her death."
CDC furnished the following data on admissions to four hospitals in states (Texas, Ohio, and Rhode Island) that had cut off funding; CDC qualified the data as based on small numbers and possibly not representative of trends in other hospitals, or of national trends:
The data from hospital "C", which appear to have greatest weight in the totals, contradict the data of the other three hospitals, and indicate an unaccountably abrupt improvement; it suggests a reduction in the number of abortions, legal and illegal, performed in the area, or a change in either admission or reporting practice.
An April 1978 internal CDC report on monitoring the impact of restricting medicaid funds for "elective abortions" noted that medicaid funds had paid for about 25% of all abortions, and that states that had restricted funding accounted for only 6% of all abortions. The report is based on 1,496 emergency room visits during the four months from October 10, 1977, to February 10, 1978, in 24 hospitals; 262 of the visits were in states which did not fund abortions. It was seen as possible that since medicaid abortions were fewer in non-funding states than in funding states, the similarity in the percentages of medicaid eligible women admitted for abortion-related complications in funding and in non-funding states represented an increase in complications per procedure performed among medicaid eligible women in non-funded areas. The data did indicate that medicaid eligible women obtained their abortions (which led to their later hospital visits) later in nonfunding than in funding states. The tabular data given on mean gestational age for all induced abortion complications by state funding status and patient medicaid status are the following:
The 1976 Abortion Surveillance Report uses eight weeks or less of gestational age as the index rate for maternal deaths from abortion; at that point the death rate per 100,000 abortions is 0.6. At 9-10 weeks the relative death risk is 2.8 times that at 8 weeks or less; at 11-12 weeks it is 4.7 times the 8 weeks or less rate; at 13-15 weeks the relative risk is 13 times that at 8 weeks or less. The April 1978 report states that the risk of complications increases 20% for each week abortion is delayed, and that the death risk increases 50% for each week of delay. However, the April 1978 report concluded that there was no direct evidence of increased abortion complications among medicaid eligible women in non-funding areas, and no evidence that they were seeking non-legal or self-induced abortions in any great numbers, but that it might be that the medicaid eligible women delayed their abortions in order to seek alternative funding; the report did project "some increased morbidity and mortality following such delayed procedure."
The caution of the CDC April 1978 report reflects the small statistical base and imperfect randomness of the data e.g., only 29% of the 262 cases in the non-funding states, that is, 76 cases, were definitely cases of medicaid eligible women. A 1975 report by CDC physicians of experience at Grady Memorial Hospital, Atlanta, a facility serving the medically indigent, confirmed the inverse relation of the numbers of admissions for complications from illegal abortion to the numbers of legal abortions performed, but indicated that the expected decrease in admissions for complications due to illegal abortion lagged the increase in availability of legal abortion services, and lagged markedly the increase in legal abortions performed at the facility. One conclusion from the data was that, "Clearly, the availability of abortion services must be sufficiently broad to obviate having to resort to criminal means." New York City data on admissions for incomplete abortions in the year preceding the change in New York's abortion law compared with the following years showed a drop in such admissions of 31% in the first year under the new law, and an ultimate decline to 50% of the admissions in the last year under the old law.
Dr. Cates of CDC concluded, in a 1976 article based on a review of the data of 1972-1974, that minority group women accounted for a disproportionate number of the deaths following illegal abortions, and that the study results suggested "a need to provide better and more widely available legal abortion services especially for those women who are at high risk of seeking illegal abortions. Any actions which impede their access to legal abortion may increase the risk of death."
Dr. Cates has noted that, despite the relatively greater disapproval of abortions by black women, they have used legal abortion at about twice the rate of white women; uncertain data for the year 1974 suggest that the percentage of medicaid abortions performed for black women is somewhat greater, perhaps 20% greater than the percentage of abortions performed for all black women.
That is, the higher incidence of poverty among black people, reflected in greater use of medicaid facilities, is a factor increasing the risk factors turning on withdrawal of funding.
There was evidence that in Romania, where abortion was sharply restricted commencing in November 1966, the effect was a drastic increase in hospital admissions for complications arising from illegal abortion and a sharp increase in abortion-related maternal deaths; a short-term increase in birth rate was followed by a decline in birth rate, ascribed by Tietze and Murstein to resort to "folk methods of contraception and illegal abortion."
The Romanian data,
which involve some uncertainties of interpretation, for 1964 through 1972 were these:
The medical witnesses who testified on the health consequences that would follow if the "Hyde amendment" was made the standard for funding abortions were in agreement that it would cause an increase in abortions performed by unqualified persons and self-induced abortion with a resulting increase in maternal mortality and post-abortion complications. A factor in the concern of some was a belief that the legalization of a broad spectrum of abortions would by this date have drawn into legal practice the unknown number of qualified physicians who before the change in laws had performed abortions clandestinely, leaving only the least qualified available to perform abortions for those most determined to obtain abortions and least able to pay for them.
The most recent data compilations for the full year 1977 prepared for The Abortion Surveillance Report, 1977, of CDC record 1,079,430 abortions reported to CDC, an increase of 9% over the number reported for 1976. The national abortion ratio (that is, abortions per 1,000 live births) increased from 312 in 1976 to 324.5 in 1977. The percentage increase in abortion ratio from 1976 to 1977 was 4%, substantially less than the increases in the abortion ratios in 1976 over 1975, about 15%, and in 1975 over 1974, about 12.5%. The States reporting racial data (excluding states which reported over 15% as "race unknown"), 31 states, recorded the abortion ratio (per 1,000 live births to women of the same race) of white women as 268 and that of black and other women as 490. Data from 32 states recording marital status, and accounting for approximately half of the abortions reported to CDC, reported an aggregate abortion ratio (per 1,000 live births to women of the same status) of 93 for married women and of 1,480 for unmarried women; the abortion ratio of the two groups combined was 321, lower than the national abortion ratio.
The Summary in preparation for the Abortion Surveillance Report, 1977, states (p. 9) that, "For the first year since 1972, there was an increase in the total annual number of abortion-related deaths; there were increases in all 3 categories legally induced, illegally induced and spontaneous . . . ." And, in discussing "Illegal Abortion Mortality" and referring to four 1977 deaths associated with illegal abortion, the Summary states (p. 12), "Therefore, for the first year since 1972, there was an increase in the annual number of illegal abortion deaths . . . ." The report continued (ibid.):
"In the past we have used the number of illegal abortion deaths as an index to reflect the number of illegal abortions actually being performed. Before 1977 the decline in the number of illegal abortion deaths was felt to reflect the increased availability of the safer legal procedures throughout the country; women who formerly terminated their pregnancies through illegal channels probably elected to use the safer legal facilities. However, in 1977, the Supreme Court ruled that states had the right to restrict the use of public funds for legal abortion services. In August 1977 federal funds for Medicaid-eligible women were restricted; over the next several months, 34 states similarly elected to restrict state funds for abortion for Medicaid-eligible women. It is reasonable to speculate that these public policy decisions may have created an environment of uncertainty for low-income women about the availability of legal abortion services, whether they lived in states which were continuing public funding for abortion or those which were not. Because of the small numbers involved, however, chance fluctuation of a rare event is a possible explanation for this increase in illegal abortion-related deaths. Moreover, for at least 1 woman, the non-availability of public funds led to a situation in which she was forced to choose the less-safe illegal abortion because of financial factors."
The summary then gave in detail the medical history of the case of a woman, admitted to the McAllen General Hospital, McAllen, Texas, on September 26, 1977, in imminent septic shock, who died 8 days later despite intensive medical surgical care. The draft Summary concludes the detailed medical history with the comment (p. 14):
"In summary, this woman had an unwanted pregnancy and no Medicaid assistance (that she had used twice before) to pay for a legal abortion. She sought a low-cost abortion on 2 occasions in Reynosa, Mexico, because of financial hardship. When these were unsuccessful, her third attempt, by a lay midwife in McAllen, resulted in instrumentation of her uterus and the probable introduction of C. perfringens organisms. These factors led to the fulminant endometritis and sepsis which eventually caused her death."
The Summary refers (p. 17) to monitoring the data on women admitted to gynecological acute-care facilities in 24 institutions; 10 of the institutions were in states where, because of the absence of public funding, legal abortions might be less available, and 14 were in states that were financing legal abortions. Three thousand one hundred and fifty-seven abortion complication cases were reported in the project; seven women stated that their abortions had been illegal; three did not name the source of the abortion, and their cases were classified as illegal abortions. None of the ten women was reported to be a Medicaid recipient. No abortion related deaths were detected in the surveillance. The Summary states that, "There was no significant difference between institutions in funded and non-funded states and (should read "in ") the proportion of Medicaid women with abortion complications over the 8-month period." The Summary reported:
"The restriction of public funds was found to be significantly associated, however, with a later gestational age at the time of the abortion."
The Summary concluded on this point (pp. 17-18) that the data were susceptible to at least three "possible explanations":
"First, Medicaid-eligible women may be obtaining legally induced abortions through a combination of personal funds, public hospital services, philanthropic assistance, and/or reduced clinical fees. Second, they may be choosing to continue their pregnancies to childbirth. Third, though unlikely, they may be having illegally induced abortions by non-physicians under relatively safe conditions."
As yet unpublished data collected by the Alan Guttmacher Institute (AGI)
report that there was an approximately 12% increase in the total number of abortions performed in the United States in the year 1977 as against the year 1976; a little over 9% more abortions were reported to CDC in 1977 over the number reported in 1976; however, for the first quarter of 1978, the most recent quarter on which data are available, AGI reported an increase of only about 4.4% over the first quarter of 1977 in the number of abortions performed in the United States.
No conclusion can be drawn from the data now available about the impact of the withdrawal of federal funding and its repercussions in state action. The draft CDC Surveillance Summary outlines alternatives that, together, exhaust the possible explanations for the absence of a significant number of illegal abortion complication cases admitted to hospitals, if it be the fact that there has been no substantial increase in the number of such hospitalizations for post-abortion complications. But the statement that only seven of 3,157 abortion complications reported through hospital surveillance admitted illegally induced procedures is so little likely to be a safe basis for the drawing of large scale inferences that the question of the extent of hospitalizations arising out of botched illegal abortions must be found to be indeterminable. The data do strongly suggest that there has been a marked reduction in the rate of increase in abortions since August 4, 1977, and that may well connote an increase in the resort to illegally induced abortions by non-physicians which, as in the past, has a high probability of escaping statistical report. An increase in involuntary childbirth is an obvious possibility. There is no evidence, however, and it cannot be and is not found as a fact that Medicaid-eligible women have been able to obtain legally induced abortions through any use of their necessarily exiguous "personal funds," or at free public hospitals, or through philanthropic assistance, or reduced clinical charges.
The evidence at the trial demonstrated that in fact indigent women, dependent on public assistance provided through AFDC programs and dependent on medicaid for their medical needs, have no significant alternative to medicaid for legal abortions. An AGI analysis
of the available data indicates that the average cost of medicaid reimbursed abortions for the fiscal year 1976 was between $ 222 and $ 233; the average cost of abortion in the United States was estimated at $ 280, the average cost for a hospital abortion being $ 460 and for a clinic abortion being $ 160; second trimester hospital abortions vary in cost up to $ 1,000 and more. The AGI analysis concluded that 69% of medicaid abortions were performed in hospitals whereas 26% of non-medicaid abortions were performed in hospitals; the remaining abortions were performed in practitioners' offices. The high ratio of medicaid abortions performed in hospital is attributed to several causes. First, AFDC clients are principal recipients of medicaid assistance, and they, in common experience, are found to turn to large public hospitals or teaching hospitals and their out-patient or clinic services for their medical needs. Second, the indigent as a class are not well served medically, nor generally are they well-informed on health care matters; their resort to medical facilities for assistance is, characteristically, delayed, and delay results in a higher percentage of second trimester abortions, which, generally, are performed in hospitals rather than in clinics or in practitioners' offices. Finally, women nineteen and younger, and more particularly those seventeen and younger, who are poor are frequently unaware that they have become pregnant until the pregnancy is advanced, and, because of their youth and ignorance, they are slow to seek medical assistance. The same AGI study shows that the average AFDC monthly payment varies widely from state to state, from $ 363 a month in New York to $ 48 a month in Mississippi and averages $ 280. The testimony of one AFDC client and of the Director of the United Welfare League, a publicly funded community multi-service center, established that even under New York's comparatively generous public assistance provision, welfare recipients must live at a miserable and humiliating level of bare subsistence, and that they are without means to pay for abortion.
Philanthropic or charitable institutions are not a resource for indigent women seeking abortions. The DHEW, Social Security Administration Bulletin for January 1976 (Vol. 39, No. 1), shows that in 1975 when total expenditures for health and medical care reached $ 118.5 billion, philanthropy and industrial in-plant services accounted for $ 1.3 billion. The AGI article referred to above pointed out (page 212) that an AGI 1977 sample survey of 1,353 abortion providers indicated that about 75% of non-hospital clinics, 30% of private hospitals and 27% of public hospitals were already providing some free or reduced-cost abortions to poor people in 1976; an estimated 14% of all clinic abortion patients and, possibly, 4% of all hospital abortion patients obtained reduced cost or free abortions in 1976; in addition three-quarters of non-hospital clinics and public hospitals and nearly two-thirds of private hospitals offered deferred payment plans to some women in financial difficulties; payments were deferred for an estimated 15% of clinic patients and possibly 6% of hospital patients; the authors of the AGI article concluded that if public subsidy were withdrawn, and assuming that medicaid recipients could pay reduced fees, current providers would have almost to triple the number of abortions that they were subsidizing to make up the medical service deficit. The Executive Director of the National Abortion Federation, an association of 106 providers who performed approximately one-third of the abortions in this country, approximately 20% of which were medicaid abortions, testified that she recommended to providers that in their budgeting they allow a 10% margin for free or reduced rate or deferred payment cases, including bad debts, and to cover the financing of references to other facilities; she testified that about 2% of the 300,000 abortions performed by member facilities during the preceding fiscal year were performed free and that about 7% were performed at reduced fees; it was her judgment that the members could provide an additional 2% to 4% of free or reduced rate abortions and remain financially stable provided that the total of their reduced rate and free cases remained within the 10% margin, but that it would be financially impossible for them to furnish free the number of abortions that had been covered by medicaid in the then recent past.
The role of public expenditures in health and medical care is portrayed in the Social Security Bulletin referred to just above. Of the $ 118.5 billion expended for health and medical care $ 68.6 billion represents private expenditures and $ 49.9 billion represents public expenditures; the public expenditures represent 42.1% of the total. The Social Security Bulletin notes that by 1975 the Federal Government was financing more than two-thirds of the public health services. The withdrawal of the public health service alternative in this field does not genuinely leave the indigent woman on public health service any resort other than involuntary childbirth, a trifling and unequally and arbitrarily allocated possibility of free medical service, and resort to self-induced abortion or non-medical abortions.
The Hyde-Conte amendment as enacted in September 1976 forbade the use of any of the DHEW appropriated funds for the performance of abortions "except where the life of the mother would be endangered if the fetus were carried to term." As noted above (pages 641-642) the Hyde-Conte amendment did not provide funding for abortions for victims of rape or incest, nor did it provide funding for any therapeutic abortions other than those in which the physician certified that the abortion was necessary because "the life of the mother would be endangered if the fetus were carried to term." The 1977 and 1978 forms of the restriction on abortion funding (supra, pages 642, 648) added to the life endangerment exception from the restriction an exception for "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"; the 1977 and 1978 enactments also excepted "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"; the regulations define medical procedures as including abortion and require that the rape or incest incident had been reported within sixty days after it occurred. 42 C.F.R. § 441.201, § 441.205(a)(3). In addition the 1977 and 1978 enactments explicitly did not prohibit payment for drugs or devices to prevent implantation of the fertilized ovum or for medical procedures necessary to terminate an ectopic pregnancy.
The language of the 1976 and 1977 enactments is very evidently not derived from but may be compared with the language used in the Uniform Abortion Act, quoted in full in Roe v. Wade, supra, 410 U.S. at 146 fn. 40, 93 S. Ct. at 723 fn. 40. The Uniform Act would not have imposed any clinical restrictions on abortions performed by a duly licensed physician during the first twenty weeks;
after the first twenty weeks abortion would, under the Act, have been authorized only if the physician "has reasonable cause to believe (i) there is a substantial risk that continuance of the pregnancy would endanger the life of the mother or would gravely impair the physical or mental health of the mother, (ii) that the child would be born with grave physical or mental defect, or (iii) that the pregnancy resulted from rape or incest, or illicit intercourse with a girl under the age of 16 years." The Uniform Act was drafted as a penal statute, as was the American Law Institute draft statute quoted in Doe v. Bolton, supra, 410 U.S. at 206-207, 93 S. Ct. at 754-755. The Institute Act would have defined "justifiable" abortion as a physician's termination of a pregnancy if he believed there was substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the child would be born with grave physical or mental defect or that the pregnancy resulted from rape, incest, or other felonious intercourse; "unjustified" abortion would be a crime under the Act if committed at any time during the pregnancy and would be more serious in degree if performed after the twenty-sixth week.
The 1976 and 1977 abortion funding restrictions do not make any distinction between abortions occurring before and those occurring after viability. The Secretary's regulations, 42 C.F.R. §§ 441.200-441.208, do not contain any guidelines for applying the "life-endangerment" and "severe and long-lasting physical health damage" criteria; at the time the regulations were put in final form the Secretary's statement indicated that the legislative history was considered as requiring that application of these criteria be left to the physicians to make on an individual-case basis. See 43 F.R. 31876-77. The Secretary indicated that the statute foreclosed funding where the only severe and long-lasting damage was to the mother's mental health, but it was pointed out that if severe and long-lasting physical health damage resulted from an emotional cause the statutory condition would nevertheless be met (ibid.). The comments and responses published at the time the regulations were put in final form support an inference that mental health circumstances which would endanger the life of the mother if the fetus were carried to term may be taken into account by the attending physician in making the "life-endangerment" judgment (ibid.).
In Roe v. Wade (410 U.S. at 153, 93 S. Ct. at 727) the Court defined the woman's right of privacy as being
". . . broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation."
The Court decided that until viability the attending physician in consultation with his patient is free to determine without regulation by the State that "in his medical judgment, the patient's pregnancy should be terminated" (410 U.S. at 163, 93 S. Ct. at 732); after viability, the Court concluded (410 U.S. at 164-165, 93 S. Ct. at 732),
" . . . the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."
In Doe v. Bolton, supra, 410 U.S. at 192, 93 S. Ct. at 747, the Court said, in discussing an abortion statute which did not distinguish between periods before and after viability, that whether an abortion is "necessary" is a professional judgment for the physician, and, it continued,
" . . . that the medical judgment may be exercised in the light of all factors physical, emotional, psychological, familial, and the woman's age relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman."
The Court did not pass on the validity, as applied to the period before viability, of the three exceptions to the prohibition of abortion contained in the Georgia statute involved in the case.
The court below in Doe v. Bolton had invalidated the exceptions as unduly limiting the reasons for which a woman might seek an abortion; the effect of its decision was to legalize abortions performed by a duly licensed physician "based upon his best clinical judgment that an abortion (was) necessary."
The data discussed at pages 637 to 638 above indicate that before the changes in state laws and the rendering of the January 1973 decisions, therapeutic abortions, while far from rare, were not significant in number in terms of the total numbers of abortions performed after the January 1973 decisions. The limited data do not give much insight into the reasons assigned for the therapeutic abortions, but those attributable to rubella or German measles would appear necessarily to be based on health damage to the fetus rather than to the mother. The evidence at the trial from qualified medical witnesses, and it was to an extent borne out by the statistical data cited above, emphasized that at least in the later years psychiatric reasons became increasingly important as bases for authorizing in-hospital abortions; not only psychotic conditions in the chronically mentally ill but suicidal tendencies and overt threats of suicide, as part of a complex of symptoms, furnished a base for applications to the abortion committees in the hospitals for permission to perform the abortion. The evidence was that on the whole patients who could afford competent medical and psychiatric attention were significantly more likely to have applications for abortion approved than were patients whose limited means denied them timely access to adequate psychiatric and medical attention. The means-based contrast is illustrated particularly for abortions authorized on psychiatric grounds as well as for all other abortions by comparing the data from University Hospital with those from Bellevue Hospital in New York City for the years preceding the change in the New York law in 1970; New York University Medical School provides staff to both hospitals.
The number of abortions was not large in either hospital in any year until 1968 and 1969. The total number ranged at University Hospital from a low of 17 in 1966 to a high of 110 in 1969. In Bellevue the abortions were 3 in 1966 and the highest number in 1969, 57. Live births at University were 594 in 1964 and 1556 in 1969. At Bellevue Hospital births tended to decline over the years; the highest number was in 1964 when there were 2,563, births, the lowest was in 1968 when there were 1,031 births at Bellevue. The following table gives the percentage distribution of the "indications for termination of pregnancy" at the two hospitals in 1968 and 1969:
A possibly skewed sample of the letters submitted to the Therapeutic Abortion Committee by the psychiatric consultant to the Obstetrics and Gynecology Department at Bellevue Hospital shows a remarkably high incidence of deepseated psychiatric problems coupled with social dislocation and stressful individual circumstances; a good many of the letters conclude that the patient has a suicidal ideation and some of the letters report previous suicide attempts by the patient.
It is clear from the evidence that before the changes in the law the medical standards determining when an abortion would be authorized by a hospital's abortion committee were not uniform in their application over time, depended greatly on how carefully the individual cases were worked up for presentation to the committee, and reflected differences in underlying medical philosophy and different case evaluations.
In spite of the very clear division within the medical profession about the circumstances in which it is appropriate medical procedure to perform an abortion, abortion has a clear-cut and established position in medical practice. The medical opinions reflect, if they do not clearly articulate, the two different aspects of abortion that were so clearly delineated in Roe v. Wade. There is, first, the therapeutic abortion, the abortion that the attending physician considers in some sense medically necessary to the successful treatment of the health of the pregnant woman. In general, the physician in such a case is not concerned with the week of gestation except as the advance in weeks of gestation radically increases the risk of maternal mortality and the related risks of physical health damage. The concern of the attending physician is with determining whether abortion is, in the Supreme Court's language in Roe v. Wade "necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." (410 U.S. at 165, 93 S. Ct. at 732). But in the first weeks of gestation, those to which the very broad range of considerations quoted above from Roe v. Wade, (supra, p. 662) is applicable, the period of which the Court said that "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician" (410 U.S. at 164, 93 S. Ct. at 732), the Court's standard was not one of preserving life or health but a decision inherently and primarily medical but which considered the pregnancy in the total circumstances, medical, societal, familial and economic in which the pregnancy existed. The medical testimony in considerable part was in substance applying the conceptualization of Roe v. Wade quoted above without specifically stating that the discussion was in terms of the period preceding viability and particularly related to the first trimester.
There was no dissent in the medical testimony from the proposition, so clearly borne out by the statistics, that abortions are most safely performed during the earliest weeks of gestation, preferably within the first eight weeks, and that the relative risk of maternal mortality increases drastically with each passing week after the eighth week. Nevertheless, the death-to-case rate for all legal abortions in 1976 was 1.1 per 100,000 abortions and in 1977 was 1.4 per 100,000 abortions. A study based on 1974 statistics comparing maternal mortality with abortion mortality and stating both in terms of deaths per 100,000 live births reported that the maternal mortality ratio for white women was 10 per 100,000 live births and the abortion mortality ratio was 0.5 per 100,000 live births; for "black and other" women the maternal mortality ratio was 35.1 per 100,000 live births and the abortion mortality ratio was 2.4 per 100,000 live births.
The medical testimony was substantially in agreement that by the use of the most advanced present day medical techniques, and with close medical supervision, it was possible for women with life threatening conditions to survive pregnancy and bear children with a comparatively low ratio of maternal mortality; it was reasonably clear that the testimony rested on the assumption that the pregnant woman was desirous of bearing the child, and was cooperative throughout the pregnancy.
The medical testimony requires the finding of fact that the life endangerment standard as used in the Hyde-Conte amendment of 1976 and in the 1977 and 1978 enactments is not a term used in the medical profession as a standard for determining medical procedures, and that it is not susceptible of any agreed definition among medical practitioners. The medical witnesses emphasized that any life endangerment concept necessarily had a number of dimensions. Since every pregnancy involves a degree of risk to the life of the mother, however remote in the case of the young and healthy woman, the threshold problems with the statutory term were first, determining what degree of risk to the life of the mother must be present to warrant abortion, and, second, what probability of eventuation of the risk visualized must be present. A separate set of problems involves relating the patient's medical condition to the available resources of sophisticated medical treatment and support, the regimen of patient behavior essential to the success of the pregnancy, and the probability or improbability of the patient's having the means, being in the circumstances, and having the will to carry out the medical program. A distinct group of problems arises out of the necessity for evaluating mortality risks in terms of the co-existence of pregnancy with a disease or complex of disease conditions, independently involving a distinct risk of mortality and the effective treatment of which is, at minimum, complicated by the pregnancy, and, in instances, requires giving up the use of the optimum medications in order to avoid grave harm to the fetus, or because any effective medication would unavoidably enhance the risks of mortality inherent both in the pregnancy and in the disease.
The medical testimony made clear that potentially life threatening conditions identified very early in the pregnancy very often could not be predicted as even relatively certain to create an unacceptably high risk of mortality at a later stage in the pregnancy notwithstanding that it would be said that such a condition would inevitably in a statistically significant number of pregnancies cause pregnant women's deaths. While a number of specifically describable diseases create risks of mortality that are unacceptably high, the medical evidence made it very clear that there is neither a closed list of life threatening conditions by which the life of the mother would be endangered if the fetus were carried to term, nor a compilation of risk factors cutting across disease conditions that would express a consensus medical judgment on the point at which statutory life endangerment would be present. For instance, multiple sclerosis and renal disease, mentioned in the joint statement accompanying the conference report in 1976 (supra p. 641), do not furnish a criterion against which other diseases can be measured. The reported data on maternal mortality
are not illuminating. Reports of the causes of maternal death, some dividing assigned causes into direct and indirect causes (that is, those directly related to the pregnancy and birth itself, and those related to complicating conditions), do not suggest any uniformity in the occurrence of causes or, perhaps, uniformity of diagnostic terms. New York data on 149 maternal death cases occurring in 1972-1976 list as causes (in order of frequency) pulmonary embolism, anesthesia, ectopic pregnancy, hypertensive states of pregnancy, cardiovascular diseases, obstetric hemorrhage, amniotic fluid embolism, ruptured uterus, cerebrovascular accidents, gastrointestinal complications, the category "liver, biliary, spleen," and other less common causes. Minnesota data collected over the period 1950 through 1974 give the causes of death in 487 cases; in the order of frequency the causes of death were hemorrhage, infection (including pulmonary embolism), toxemia (classified in New York under "hypertension states of pregnancy"), heart disease, amniotic fluid embolism, chorioepithelioma, anesthesia, air embolism, transfusion deaths, diabetes, and electrolite imbalance.
There was, for example, testimony related to a tabulation of seventy-nine "Risk Criteria," used for identifying potential complications in pregnancy, evaluation of which would determine whether the pregnant woman could safely bear a child out-of-hospital: the criteria did not indicate specific maternal mortality risks as such, but the first forty-eight factors, grouped under socio-demographic factors (age and residence near hospital), maternal medical history, maternal obstetrical factors, previous infants' factors, maternal laboratory findings and physical findings, traverse the range of factors that can at varying intensity levels become indications for termination of pregnancy. Included are chronic hypertension, renal disease (moderate to severe), urinary tract infection, history of psychotic episodes, history of epilepsy or seizure, required use of anticonvulsant drugs, drug addiction or current addiction therapy, heart disease (systolic murmur, significant heart enlargement), diabetes mellitus, thyroid disease, history of pulmonary embolism, history of asthma or recent chronic bronchitis, history of any bleeding disorder or hemolytic disease, and "others"; maternal laboratory findings indicative of risk to the woman or fetus are hematocrit value below 27%, sickle cell hemoglobin, pap smear class 3 or greater, and evidence of fetal chromosomal disorder in amniotic fluid.
The medical evidence made it abundantly clear that the medical profession does not treat pregnancy, the threat of complications in pregnancy, and the factor of the pregnant woman's attitude toward her pregnancy and child bearing in terms related to determining whether "the life of the mother would be endangered if the fetus were carried to term." Treatment, including surgical treatment, of a proportionately serious pathological condition in a pregnant woman may result in miscarriage, and physicians would not consider such treatment as inducing an abortion. The termination of the pregnancy as a therapeutic measure is undertaken essentially when the purpose of the patient and physician is averting unacceptable risks of injury to the mother's physical or mental health from the pregnancy, given the patient's condition of health and attitude toward her pregnancy, or is averting an unacceptable risk of grave fetal deformity. The life endangerment test is simply alien to the medical approach when put forward as a sole test, for it extends only over an indeterminate range of instances that appears to exclude significant instances in which before Roe v. Wade, and the first changes in the state statutes, the therapeutic abortion committees of hospitals were approving abortion. Conspicuously, the language excludes the rubella cases and those psychiatric cases which were not based on evident risk of suicide.
The medical evidence made equally clear that, although it was possible to theorize that a variety of conditions could be considered as life-endangering, the medical witnesses did not consider that they could certify such conditions as meeting the statutory standard either for the purpose of assuring hospital admission for abortion or for the purpose of claiming payment under state medicaid plans governed by the Hyde standard. They were not impressed by the suggestion that, if they certified in good faith that in their professional judgment the abortion was necessary because the life of the mother would be endangered if the fetus were carried to term,
they would not have to fear charges of fraud, or investigation of their practices. Their concern centered on the circumstance that there could be no broadly shared understanding of the novel term either within the profession or between the profession and DHEW, and that, in practice, it could operate only as a crisis intervention standard. Dr. Seymour L. Romney testified that the Hyde standard and the monitoring of practice under it would have a severely inhibitory effect on physicians' willingness to undertake and to certify cases because of their inability to have marshalled and to present verifiable scientific data to support their professional judgment under later DHEW enforcement review; he visualized an increased risk of serious complications that would tend to arise from protracting observation until professionally certifiable necessity became a demonstrable certainty. He estimated that application of the Hyde standard would have meant that 50% to 75% of the 1976 medicaid abortions would not have been certified for performance. Dr. Johan W. Eliot testified that few abortions could be performed under the Hyde standard, and that it would not cover cases in which abortion was clearly medically necessary, but in which it would not be possible to certify that the mother's life would be endangered if the pregnancy were carried to term. He estimated that, of the total abortions performed before the "Hyde amendment," only two or three percent would have been certified for reimbursement under the language of the amendment, and that, in the case of women who wished to carry their pregnancies to term, abortion would have been certified as necessary in only about 1% of the total abortion cases; his experience indicated to him that a third to one half of abortions that came under his view were based on socio-economic considerations and were not "medically necessary," and that the remaining 47% to 65% could be classified as "medically indicated" or "medically advisable," and medically necessary from the point of view of preventive medicine to restore and preserve the patient's mental and physical health using the World Health Organization definition of health (not simply absence of disease but complete mental and physical well-being). Dr. David Bingham testified that the medically necessary standard then in use in Connecticut embraced far more cases than the Hyde life endangerment standard. He estimated that 80% to 90% of abortions performed at the Planned Parenthood outpatient clinic in Norwich, Connecticut, were medically necessary, and that, in his judgment, 5% to 10% of them would meet the Hyde life-endangerment standard, as he interpreted it.
The teaching of the testimony as a whole, not excluding the testimony of the physicians presented as witnesses by the guardian, was that the Hyde-Conte amendment could not be equal and uniform in interpretation and application, but that medical judgments under the amendment would necessarily reflect individual professional evaluations of conditions of inherently uncertain prognosis, that could occur in very different degrees of severity and with radically different degrees of access to supportive care, and could become manifest at widely different gestational ages and physiological, psychological, and social circumstances. More particularly significant was the very substantial risk that professional reluctance to certify under a standard alien to medical experience and terminology would deny medical assistance to women in instances in which it would not have been withheld under the older abortion committee standards.
The less complete testimony on the 1977 and 1978 additional standard of "severe and long-lasting physical health damage" in substance was that it, again, was not terminology used by or familiar to the medical profession, and that it did not embrace any added class of definable instances. The evidence was that so far as concerned first trimester abortion practice, the language added in 1977 was materially restricted in practical utility by the two physician requirement. Dr. Romney pointed out that the "would result" language of the clause put physicians in the impossible situation of predicting outcomes; he judged that the consequence of requiring two physicians to join in determining the existence of the condition would result in reducing certification to what he called the "classic" life threatening conditions: the cardiac problems, ...