37 A.D.2d 700 | N.Y. App. Div. | 1971
Order, Supreme Court, New York County, entered June 2, 1971 (1) annulling the directive of the Commissioner of Social Services dated April 8, 1971 limiting medicaid reimbursement for abortions to those “medically indicated ”, and (2) directing said Commissioner to continue to provide reimbursement for abortions authorized pursuant to section 125.05 of the Penal Law, affirmed, without costs and without disbursements. We note, at the outset, that while the learned Justice at Special Term devoted considerable space in his opinion in ruling that the action of appellant constituted a violation of the due process and equal protection provisions of the United States Constitution, we find that the resolution of the controversy herein does not directly involve any constitutional problem. The conclusion reached at Special Term is sustained on the following bases: (A) Subdivision 2 of section 365-a of the Social Services Law lends itself to a construction which would include medical care for an “ elective abortion ” or any abortion not interdicted by law. Indeed the respondent Commissioner so construed it from the time of its adoption to the date of his order. (B) The April 8, 1971 directive is repugnant and contrary to the legislative intent and to the public policy of the State as expressed by the 1970 amendment to the Penal Law liberalizing the abortion law. (C) By denying reimbursement for abortions to indigent women this administrative action will effect the substantial evil which- the amendment to the Penal Law was enacted to eliminate. The directive is not only contrary to the legislative intent, it exceeded the respondent’s authority and should therefore be annulled as ultra vires. (See Southern S. S. Co. v. Labor Bd., 316 U. S. 31.) Apart from the foregoing considerations we note also that there was failure to comply with title 42 of the U. S. Code (§ 1396a, subd. [d]) requiring approval of the Secretary of Health, Education and Welfare as a condition precedent to any modification of the State plan to reduce the scope or extent of medical assistance. Concur — Markewich, J. P., Nunez and Tilzer, JJ.; Steuer, J., dissents in the following memorandum : I agree with the majority that the opposition to the relief sought on procedural grounds is not well taken. I differ as to the substantive questions presented. Respondent Commissioner of Social Services issued a directive, dated April 8, 1971, which limits Medicaid reimbursement for abortions to those which are medically indicated. Upon the argument there was a semantically based contention that this directive was so vague that it was meaningless, or that it encompassed every abortion that was performed by a doctor. If it be assumed that the directive is faulty for either of these reasons, it presents no barrier to the plaintiffs and they can be reimbursed for the abortions performed in the past and as yet not compensated for, as well as those to be undertaken. Hence they would not be prejudiced by the respondent’s action and the proceeding should have been dismissed. Actually, however, the directive is clear, all parties understood it, and that is why they are here. An abortion is medically indicated when the examining physician determines that it is an advisable procedure to preserve the life or health of the expectant mother. It is not medically indicated when the pregnant woman undergoes it because she does not, for any other reason, desire to bear a child. The sole question is whether the respondent has the power to do what the directive provides, although this question has several facets. The first is whether the procedural limitations in the statute itself preclude it, at least without prior approval. For two reasons it does not. The first is that the provisions of the