Federal Courts Have Commonly Read Abortion Into Medicaid’s ‘Mandatory Categories’

Since the 1970s, federal courts have regularly interpreted the “mandatory categories of care” within Medicaid to include abortion and thus mandate abortion coverage. That judicial interpretation of Medicaid will be adopted by courts in interpreting federal health care legislation, unless abortion is expressly excluded.

In addition to the leading case of Planned Parenthood Affiliates of Michigan v. Engler—where the Sixth Circuit held that “abortion fits within many of the mandatory care categories, including ‘family planning,’ ‘outpatient services,’ ‘inpatient services,’ and ‘physicians’ services.’ 73 F.3d 634, 636 (6th Cir. 1996)—at least six other circuit courts (the First, Third, Fifth, Seventh, Eighth, and Tenth) have held that abortion is covered under Medicaid (unless there is a specific statutory exclusion like the Hyde Amendment). Some, like the Sixth Circuit, have specifically held that abortion is covered under the broad “mandatory categories of care” including “family planning” within Medicaid (Title XIX of the Social Security Act, 42 USC 1396d(a)).

The First Circuit, in Preterm, Inc. v. Dukakis held that abortion is covered by Medicaid and implicitly concluded within the mandatory Medicaid categories. 591 F.2d 121, 125 (1st Cir. 1979).

The Third Circuit, in Roe v. Casey, noted with agreement that “[t]he district court took note of the fact that standard abortion procedures ‘involve most, if not all’ of the types or classes of services which are to be furnished to the categorically needy” within Medicaid. Roe v. Casey, 623 F.2d 829, 832 (3rd Cir. 1980).

The Fifth Circuit, in Hope Medical Group for Women v. Edwards, held that a state statute limiting Medicaid-funded abortion procedures was “inconsistent with the broad objective of Title XIX to provide needed medical care to qualified recipients.” 63 F.3d 418, 428 (5th Cir. 1995). The court stated, “[a]lthough Title XIX does not specifically include abortion as a mandatory service, the parties concede that abortion services fall under several of the eight broad categories of medical services mandated by the Act, including inpatient hospital services, outpatient hospital services, physician’s services, and family planning services.” Id. at 425.

The Seventh Circuit, in Zbaraz v. Quern, agreed with the First Circuit’s decision in Preterm “that limiting Medicaid assistance to life-threatening abortions “violate[s] the purposes of the Act and discriminate[s] in a proscribed fashion” 596 F.2d 196, 199 (7th Cir. 1979).

The Eighth Circuit in 1980 held that “[the Medicaid mandatory categories] include medical procedures to induce abortions.” Hodgson v. Board of County Com’rs, Hennepin County, 614 F.2d 601, 607 (8th Cir. 1980). And in Little Rock Family Planning Services, P.A. v. Dalton, the court held that “[a] state plan must cover medical services that a person’s physician certifies are “medically necessary.” 60 F.3d 497, 499 (8th Cir. 1995). Though the Dalton court admitted that “[Title XIX] does not identify any specific medical procedures, whether they are Caesarean sections, transfusions, bypass surgery, or abortions.” Id. at 499, it concluded that “[b]ecause abortion falls within several of these mandated categories [of medical service], a medically necessary abortion is a mandatory covered service.” Id.

The Tenth Circuit, in Hern v. Beye, held that “[a]bortion falls under several … ‘mandatory coverage’ categories, including ‘inpatient hospital services,’ 42 U.S.C. § 1396d(a)(1), ‘outpatient hospital services,’ id. § 1396d(a)(2)(A), ‘family planning services,’ id. § 1396d(a)(4)(C), and ‘physicians’ services furnished by a physician,’ id. § 1396d(a)(5)(A).” 57 F.3d 906, 911 (10th Cir. 1995).

In addition, several federal district courts have read abortion into Medicaid.

In Doe v. Busbee, the court concluded that “[i]t is clear that an abortion is a medical procedure which falls within the five general categories set out in Title XIX.” 471 F.Supp. 1326, 1331 (N.D. Ga. 1979).

In Smith v. Rasmussen, the court held that “[a]bortions . . . fall within several of Medicaid’s mandatory categories of care.” 57 F.Supp.2d 736, 755 (N.D. Iowa, 1999).

In Planned Parenthood Affiliates of Ohio v. Rhodes, the court broadly held that “[t]he ‘promotion’ of abortion, whether it consist of counseling, encouraging, referring, assisting or even performing medically necessary abortions is included in the five general categories.” Planned Parenthood Affiliates of Ohio v. Rhodes, 477 F.Supp. 529, 540 (E.D.Ohio, 1979).

Finally, in reading these decisions, it must be understood that a “medically necessary” abortion is—under the Supreme Court’s abortion doctrine—whatever an abortion provider, in his/her personal, subjective judgment, determines it to be. The terms “necessary” and “medically necessary” are virtually synonymous, because both vest the abortion provider, in his or her subjective judgment, with complete discretion to determine their meaning. As the lower federal courts have applied the terms, an abortion is “necessary” because a woman requests it, and it becomes “medically” necessary when the doctor agrees to it. Consequently, when these two terms are combined—“medically necessary” to preserve the “health” of the woman”—a “medically necessary” abortion means any abortion a provider agrees to perform for any reason.