Mabel Wadsworth Women's Health Center; Family Planning Association of Maine d/b/a Maine Family Planning and Primary Care Services; and Planned Parenthood of Northern New England, Plaintiffs
Ricker Hamilton, Acting Commissioner of the Maine Department of Health and Human Services, in his official capacity, Defendant
ATTORNEY FOR PLAINTIFFS: ZACHARYHEIDEN, ESQ MAINE CIVIL
LIBERTIES UNION FOUNDATION
ATTORNEYS FOR DEFENDANT: SUSAN HERMAN, AAG MONCURE HALLIDAY,
AAG OFFICE OF THE ATTY GENERAL
DECISION AND JUDGMENT
A. M. HORTON, JUSTICE.
Motion for Summary Judgment and Plaintiffs' Cross-Motion
for Summary Judgment came before the court for oral argument
September 28, 2017, at which point the case came under
following reasons, Plaintiffs' Cross-Motion For Summary
Judgment is denied and Defendant's Motion for Summary
Judgment is granted.
The Medicaid/MaineCare Framework
joint state-federal program known as Medicaid, codified as
Title XIX of the Social Security Act, provides federal funds
to enable states to extend subsidized medical care to needy
persons. See 42 U.S.C. §§ 1396-1396v
(2017); 42 C.F.R. § 430.0 (2017). See also Biewald
v. State, 451 A.2d 98, 99 (Me. 1982).
participation in Medicaid is voluntary. However, once a state
chooses to participate, it must comply with the requirements
of federal law and regulations thereunder. A participating
state must have a plan that is approved by the federal
government and that provides, at minimum, certain mandatory
services. See 42 C.F.R. §§ 430.0 et seq.
These mandatory services include pregnancy related services,
and family planning services. See 42, U.S.C §
other hand, federal law prohibits federal Medicaid funds from
being used to fund abortions, except in cases of rape or
incest, or when the life of the mother is in danger. The
prohibition is codified in the Hyde Amendment, an
appropriations measure that Congress has enacted every year
since 1976, most recently through Pub. L. 115-31, div. H.
tit. V § 507 (2017). In operation, the Hyde Amendment
precludes federal reimbursement to states for any abortion
services other than those within the exceptions Congress has
State of Maine participates in the Medicaid program
voluntarily through a program known as "MaineCare".
See Biewald, 451 A.2d at 99. See also 22
M.R.S.A. §§ 3172-3184 (2016). The MaineCare program
is administered by the Maine Department of Health and Human
Services (DHHS). Defendant Hamilton is acting Commissioner of
specific healthcare services covered by MaineCare are defined
in rules promulgated by DHHS rather than by the MaineCare
statute. Regarding pregnancy related care, MaineCare covers
"antepartum care, delivery, postpartum care, and other
services normally provided in uncomplicated maternity
care." 10-144 C.M.R ch. 101(11), § 90.04-4(B)
(2016). A child born to a mother covered by MaineCare will
also be covered under MaineCare for one year following birth.
10-144 C.M.R. ch. 332, pt. 2, § 13.1(1) (2016). This
coverage will continue even if the child's mother does
not remain eligible for MaineCare throughout the year.
Id. So long as family income eligibility
requirements are met, MaineCare will provide coverage for
children and teenagers through age twenty. 10-144 C.M.R. ch.
332, pt. 3, § 2.1 (2016).
contrast to its broad coverage of pregnancy and child-related
services, MaineCare covers abortion services only in the case
of rape or incest, or if the pregnancy is life-threatening.
The limitation on coverage is defined in a DHHS rule,
codified at 10-144 C.M.R. ch. 101(11), § 90.05-2(A)
["Rule 90.05-2(A)"]. Rule 90.05-2(A) in one form or
another has been in effect almost as long as the federal Hyde
Amendment has been in effect.
other words, MaineCare covers abortion services only to the
extent the services are eligible for reimbursement with
federal Medicaid funds, and this has been the case for
2014 and 2016 Maine spent more than one billion dollars per
year covering optional benefits under its MaineCare program.
(JSMF ¶94.) DHHS is not aware of any data showing that
MaineCare's lack of coverage for abortions, except when
federal reimbursement is available, provides any fiscal
benefit to the State. (JSMF ¶95.)
Plaintiffs' Status as MaineCare Providers
three Plaintiffs are enrolled MaineCare providers of family
planning and abortion services. (JSMF ¶ ¶ 1, 5,
15.) As enrolled MaineCare providers, the Plaintiffs are paid
directly by the State, through DHHS, when they provide a
patient with a service covered by the MaineCare program.
patient of Plaintiffs decides to terminate her pregnancy
through abortion, the decision may be for a variety of
reasons (J.S.M.F ¶¶35-46.) These reasons include:
the inability to provide financial support for a child, the
belief that having a child would interfere with educational
or career goals, the exacerbation of an existing physical or
mental health condition, and the desire to escape an abusive
relationship, and abnormal fetal development. (J.S.M.F
¶¶37-40, 43, 45).
individual woman is a plaintiff in this matter. (JSMF
charge between $500 to $600 for abortion services performed
up to 14 weeks from a patient's last menstrual period.
(JSMF ¶20.) After 14 weeks, the cost of an abortion
increases to between $725 and $ 1000. (JSMF ¶20.)
However, Plaintiffs always try to enable any woman who wishes
to terminate her pregnancy to obtain an abortion regardless
of her ability to pay. (JSMF ¶23.) Plaintiffs offer
eligible women financial assistance to obtain an abortion.
(JSMF ¶21.) One of the Plaintiffs writes off up to $12,
000 a year for abortion services provided to needy women.
(JSMF 22.) Plaintiffs have no record of any woman being
denied access to abortion services due to her inability to
pay. (JSMF ¶24.)
appropriate circumstances, Plaintiffs provide abortions and
then seek reimbursement from the Maine Department of Health
and Human Services. (JSMF ¶25.) Between 2010 and 2015,
Plaintiff Mabel Wadsworth Women's Health Center submitted
three claims for reimbursement for abortion services. (JSMF
¶29.) Two of those claims were denied. (JSMF ¶29.)
case, the parties have presented the court with all of the
facts that are material to the court's decision on the
pending Motions. There are no disputed issues of fact that
could justify denying both of the pending Motions.
Accordingly, the question before the court is: Which side is
entitled to judgment based on the law and the record before
Complaint in this case presents four counts, designated as
"causes of action":
• First, Plaintiffs contend that the DHHS rule limiting
MaineCare funding for abortions, 10-144 C.M.R. ch. 101(11),
§ 90.05-2(A) ["Rule 90.05-2(A)"] is invalid
because it exceeds DHHS's rulemaking authority and is
contrary to Maine statute
• Second, Plaintiffs contend that Rule 90.05-2(A)
violates their patients' right to liberty and safety
guaranteed by the Maine Constitution. ME. CONST., art. I,
• Third, Plaintiffs assert that Rule 90.05-2(A) violates
their patients' right to equal protection of the laws, as
guaranteed by sections 1 and 6-A of article I of the Maine
Constitution. Me. CONST., art. I, §§1, 6-A.
• Fourth, Plaintiffs assert that Rule 90.05-2(A)
violates their patients' right to substantive due
process, also as guaranteed by sections 1 and 6-A of article
I of the Maine Constitution. Me. CONST., art. I,
prayer for relief, Plaintiffs' Complaint seeks a
declaratory judgment invalidating Rule 90.05-2(A) on the
grounds that it exceeds DHHS's statutory authority and
violates the Maine Constitution provisions just cited. The
Complaint asks that Defendant be enjoined from enforcing the
Plaintiffs' Cross-Motion for Summary Judgment seeks
judgment in their favor on all of the grounds set forth in
Defendant's Motion for Summary Judgment seeks judgment on
all counts of the Complaint, but also raises several
threshold issues as to standing and jurisdiction that merit
discussion before the questions that the Plaintiffs raise are
Threshold Issues of Standing, Ripeness, Justiciability
Defendant claims that (1) Plaintiffs lack standing as
aggrieved parties for purposes of obtaining judicial review
under the Maine Administrative Procedure Act, 5 M.R.S. §
8058; (2) Plaintiffs lack standing to challenge Rule 90.05-2;
(3) Plaintiffs' claims are not ripe for review; (4)
Plaintiffs cannot bring claims directly under the Maine
Constitution; and (5) Maine's Declaratory Judgment Act
does not provide an independent jurisdictional basis for
first count is brought pursuant to section 8058 of
Maine's Administrative Procedure Act (APA) which allows
for judicial review of administrative agency rules. 5 M.R.S.
§ 8058 (2016).
8058 allows any aggrieved party to bring an action for
declaratory judgment in the Superior Court for the
"review of an agency rule, or of any agency's
refusal or failure to adopt a rule where the adoption of a
rule is required by law." 5 M.R.S. § 8058.
Plaintiffs' APA challenge contends that Rule 90.05-2(A)
is contrary to the Maine statutory mandate for coverage of
abortions and hence is invalid because it exceeds DHHS's
argues that Plaintiffs are not "aggrieved" parties
because their claims are speculative and not ripe for review.
person is aggrieved within the meaning of 5 M.R.S. §
8058 "if he has suffered a particularized injury, i.e.,
agency action operating directly and prejudicially on a
party's personal rights." Gross v. Secretary of
State, 562 A.2d 667, 670 (Me. 1989) (citing Hammond
Lumber Co. v. Finance Authority, 521 A.2d 283, 286 (Me.
Plaintiffs are enrolled MaineCare providers who provide
abortion services to MaineCare eligible patients. Because
MaineCare covers abortion services only in limited
circumstances, Plaintiffs cover some or all of the cost of
abortion services they provide to MaineCare eligible
patients. (JSUMF ¶ 115.) Furthermore, because MaineCare
does not cover abortions except in limited circumstances,
Plaintiffs spend their own resources to provided financial
counseling to patients in an effort to help them raise funds
for an abortion. See (JSUMF ¶ 117.) Finally, and perhaps
most importantly, Plaintiffs are engaged in the business of
performing abortions (JSMF ¶¶l, 5, 15.) and would
be reimbursed directly under MaineCare if abortions were
fully covered to the same extent pregnancy services are
covered. If Plaintiffs prevail in this litigation, they will
directly benefit by receiving payment for abortions provided
to MaineCare eligible women.
Rule 90.05-2(A) operates to diminish the Plaintiffs'
opportunity to earn income through MaineCare reimbursement
for abortion services, Plaintiffs suffer a particularized
injury sufficient to confer standing as aggrieved parties, at
least for purposes of their APA challenge. See Singleton
v. Wulff, 428 U.S. 106, 112-13 (1976) (holding that
abortion-provider physicians suffer a concrete injury from
the operation of a state statute excluding abortions from
the court concludes that Plaintiffs have standing, as
aggrieved parties, to challenge the validity of Rule 90.05-2,
at least on the ground that it exceeds DHHS's rulemaking
as the Law Court has noted in a seminal opinion on standing,
Common Cause v. State, 455 A.2d 1 (Me. 1983), a
party may have standing for some purposes and not for others.
With respect to the Plaintiffs' constitutional challenges
to Rule 90.05-2, Defendant argues that the Plaintiffs lack
standing to litigate their patients' liberty, safety, due
process and equal protection rights under the Maine
points out that no women have been joined as plaintiffs, and
also that Plaintiffs have not produced any admissible
evidence establishing that Rule 90.05-2(A) has resulted in
the denial of an abortion to or otherwise harmed any
respond by contending that they have third-party standing to