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Mabel Wadsworth Women's Health Center v. Hamilton

Superior Court of Maine, Cumberland

October 24, 2017

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
v.
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.

         Defendant's 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 advisement.

         For the following reasons, Plaintiffs' Cross-Motion For Summary Judgment is denied and Defendant's Motion for Summary Judgment is granted.

         Background

         A. The Medicaid/MaineCare Framework

         The 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).

         State 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 § 1396a(a)(10).

         On the 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 deemed appropriate.

         The 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 DHHS.

         The 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).

         In 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)"].[1] 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.

         In 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 decades.

         Between 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.)

         B. Plaintiffs' Status as MaineCare Providers

         The 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.

         When a 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).

         No individual woman is a plaintiff in this matter. (JSMF ¶2.)

         Plaintiffs 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.)

         In 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.)

         Analysis

         In this case, the parties have presented the court with all of the facts that are material to the court's decision on the pending Motions.[2] 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 the court?

         Plaintiffs' 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, §1-
• 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, §§1, 6-A.

         In the 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 rule.

         The Plaintiffs' Cross-Motion for Summary Judgment seeks judgment in their favor on all of the grounds set forth in the Complaint.

         The 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 addressed.

         A. Threshold Issues of Standing, Ripeness, Justiciability and Jurisdiction

         Specifically, 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 seeking relief.

         Plaintiffs' 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).

         Section 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 rulemaking authority.

         Defendant argues that Plaintiffs are not "aggrieved" parties because their claims are speculative and not ripe for review.

         A 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. 1987)).

         Here, 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.

         Because 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 Medicaid coverage).

         Accordingly, 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 authority.

         However, 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 Constitution.

         Defendant 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 MaineCare beneficiary.

         Plaintiffs respond by contending that they have third-party standing to ...


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