*1 trial. Costs for a new court the district play fair notions of traditional offends against Kirk. taxed pay for make a defendant process to due Owens-Corning asks that delay. another’s delay damages be recalculated award of
the it is unconstitu- further maintains it for delay damages on this impose
tional acting in was never period because it time HEALTH ELIZABETH BLACKWELL by delay caused was the faith and bad WOMEN; Phil- Greater CENTER FOR rule law adopt the of we to court. Were Fund; adelphia Medical Women’s Owens-Corning, we would by articulated CHOICE, themselves on behalf of 238(b)(2) “dur- to state Rule to redraft have Medicaid-eligible of women not cause did ing which defendant Pennsylvania of Commonwealth trial,” “during of delay of the instead financial, health provide whom delay trial.” We plaintiff caused services, Appellees, counseling care and find that inclined and we not so delay trial. no plaintiff caused KNOLL, Treasurer of Baker Catherine argues Owens-Corning also Pennsylvania, in her Commonwealth rule, language of the notwithstanding the Snider, capacity; Karen F. Sec- official delay caused pay it to requiring retary the Com- of Public Welfare process. Ow
judiciary a violation of due Pennsylvania, in her offi- monwealth theory comprehend the ens-Corning fails to Knowlton, Deputy Sherry capacity; cial merely Delay damages underlying Rule 238. of Medical Assis- of the Office money that he or plaintiff for compensate a Pennsyl- of the Commonwealth tance if he or on the award have earned she would capacity; P. vania, Robert her official it. Costa promptly received she had Casey, of the Commonwealth Governor Hotel, Pa. Lauderdale Beach capacity, Pennsylvania, in his official rule also A.2d their successors. being prevent defendant functions to Snider, by keeping Knoll, interest unjustly F. enriched Karen Baker Catherine process during litigation Sherry Robert P. could be earned Knowlton and money. essentially plaintiffs Casey, Appellants. on what to Owens-Corn n. We find no merit Id. 6. No. 94-1954. damages delay violate ing’s argument Appeals, Accordingly, States Court process in this instance. United due Circuit. court’s deci Third in the district we find no error delay damages plaintiff. sion to award 13, 1995. Argued Jan. July 1995. Decided
VI. Conclusion Nygaard’s Dissent Amended Judge jurors two who were 1995. Aug. The refusal remove an abuse of discre- challenged for cause was Aug. Rehearing In Denied Banc required tion. Because defendant in order peremptory of its strikes waste two remedy error, per se reversal prior Allowing evidence
required. into unrelated
testimony of witness error, permitting as was trial was
court to an of an answer into evidence
introduction Ac- co-defendant.
interrogatory a settled judgment
cordingly, we will reverse matter and remand the district court *2 Treasurer, Secretary of the
the State Welfare, Department of Public Pennsylvania Assis- Secretary Medical Deputy and the Commonwealth”) ap- (collectively, “the tance *3 court the district order of from the peal summary for motion Providers’ granting the its hold- based court judgment. The district Pennsyl- claim Providers’ ing on the Hyde by the preempted is statute vania Amendment. Atty. (argued), Office of W. Stoner Sandra Secretary of Health that We conclude PA, Pa., for Harrisburg, appellants of Gen. re- is owed deference Services and Human Snider, Knoll, F. Karen Baker Catherine interpretation garding her Knowlton, Casey. P. Sherry Robert the Secre- Because mandates. Dechert, (argued), McLaughlin Mary A. reporting require- tary has determined PA, appel- Rhoads, Philadelphia, for Price & under the Medicaid permissible are ments for Health Center Elizabeth Blackwell lees Amendment, Act, by the as modified Med- Women, Philadelphia Women’s Greater provision, and they contain a waiver only if CHOICE, themselves Fund, behalf of ical Act Control Pennsylvania Abortion since of Medicaid-eligible women of Com. and § provision, we find no such contains 3215© financial, health they provide Pa. to whom directly in con- Pennsylvania statute counseling services. and care thus, law, invalid and flict with federal Gen., Hunter, Atty. Mi- Secretary’s Asst. Frank W. that it conflicts extent Biddle, Stiles, Atty., Furthermore, Barbara C. U.S. chael R. because interpretation. Staff, Mollin, Civ. Attys., Appellate requirement Alfred certification second-physician DC, as amicus Div., 3215(c) for U.S. Washington, contrary to a federal § to pursuant curiae. extent also invalid regulation, it is regulation. scope of that beyond goes COWEN, and NYGAARD Before: ALITO, Judges. Circuit I. COURT OF THE
OPINION Title of So- XIX action concerns This Act, commonly as the Security known cial COWEN, Judge. Circuit §§ 1396-1396u program, U.S.C. Medicaid for Health Center The Elizabeth Blackwell 1993). (1988 purpose of the Supp. V & health Women, reproductive comprehensive a help provide medical program is to Medicaid first-trimester facility provides care people. Under treatment low-income abortions, Women’s Medical the Greater financial receives federal program, fi- provides Fund, agency that non-profit a administering Med- return assistance women low-income nancial assistance develops within the state program that icaid CHOICE, abortions, and to obtain order law and federal established parameters provides informa- hot-line which telephone (1994). § 430.0 regulations. 42 C.F.R. many its callers on tion and referrals program a Medicaid Establishment planning abor- issues, including family and While of each state. “Providers”), voluntary part on the (collectively, ask tion participate obligated to are not enjoin en- states invalid and to declare Court chooses 3215(c) program, each state that of Medicaid and of sections forcement 3215© develop own state its Act, required 18 do so Pennsylvania Control Abortion (1983 approved by Secre- must plan which & §§ 3201-3220 Pa. Cons.Stat.Ann. funds, a receive federal tary. In order to reporting and Pennsylvania’s Supp.1994), conform, on its face both plan must pub- state’s requirements for physician certification require- various federal applied, the Medicaid licly-funded abortions 1396c; 1396a, see Har- 42 ments. Pennsylvania, The Governor program. McRae, ris v. addition, 100 S.Ct. regulations federal require (1980); New Jer that each covered service be “sufficient in sey Department amount, duration, Health and Human scope reasonably Services, Cir.), achieve purpose,” cert. 440.230(b) C.F.R. denied, (1994), mandate “may states arbitrarily L.Ed.2d 60 deny or amount, reduce the dura- tion, scope required ... service to an XIX, Under Title categories certain eligible otherwise recipient solely because medical care mandatory, are and must be diagnosis, type illness, or condition.” provided by every state plan, while 42 440.230(c). C.F.R. categories other of care optional, *4 If, hearing, after a finds that each state has the discretion to cover the approved an plan longer no complies 1396a(a)(10). § service. See 42 U.S.C. By with the provisions Act, of the Medicaid law, required states are to fund medically that the state had comply failed to substan- necessary physician services. 42 U.S.C. tially any applicable with require- federal 1396a(a)(10)(A), 1396d(a). §§ Participating ment, the Secretary may notify the state that states must eligibility requirements establish federal financial participation will be with- that are “consistent with objectives” held or limited. 42 § U.S.C. 1396c. 1396a(a)(17). Title 42 § XIX. U.S.C. “Title 1976, In Congress passed what is broadly XIX’s common- primary stated objective [is] to ly called Hyde Amendment, pro- State, each enable as far practicable, as hibits federal reimbursement for abortions furnish medical assistance to individuals except in the narrow circumstances that Con- whose ineome and resources are insufficient gress deems to medically be necessary. to meet the costs of necessary medical ser- 1976, Congress Since has added the Hyde Doe, vices.” Beal v. 432 U.S. 97 Amendment to appropriations annual bills for (1977) (cit- S.Ct. Department the U.S. of Health and Human ing 1396,1396a(a)(10)). 42 §§ U.S.C. “A fur- (“HHS”). Services provisions While its have objective ther policies is that governing eligi- varied to degree some year from year, bility be in the ‘best recipi- interests’ of the Hyde effect of the Amendment been to ent.” Hodgson County v. Board Commis- withdraw federal funding under Medicaid for sioners, County 601, Hennepin, 614 F.2d most abortions.1 (8th Cir.1980) 607 (citing 42 U.S.C. § 1396a(a)(19); 206.10(a)(ll)). 45 § C.F.R. Hyde The Amendment for year fiscal 1994 The state provide must alsо safeguards permitted, for the 1981, first time since ex- assure that its plan penditure Medicaid will be of federal funds for adminis- abortions when tered “in pregnancy “the manner the result simplicity consistent act of rape or incest” 1396a(a)(19). administration.” 42 as well as “necessary § when to save hand, On life of the other the mother.” 103-112, Pub.L. No. “provide state must 509, 1082, (1993). 107 Stat. procedures methods The full relating to the version of Hyde of, pro- utilization payment for, and the Amendment care and vides: services available under plan ... necessary safeguard against None of the funds appropriated under this unnecessary utilization.” 42 U.S.C. Act expended shall be abortion § 1396a(a)(30)(A). except when it is made known to the Fed- original Amendment, 1. Hyde The nancy enacted in were carried to term when so determined 1976, limited federal funding to abortions where physicians.” two Pub.L. No. "the life of the mother endangered would be (1977). 91 Stat. 1460 year through From that the fetus were carried to term.” Pub.L. No. 94- Hyde provided for reim- (1976). 90 Stat. bursement for pregnancy abortions when a re- Hyde expanded following Amendment for the year fiscal rape sulted rape from or incest. The and incest funding to include abortions for provision was eliminated from the Amend- victims of and incest as well as "instances ment from appropriations 1982 until the bill for where long-lasting severe physical health year fiscal damage to the mother would preg- result if the notify [state letter is purpose are which funds entity official to eral pro- a recent Con- this Act that such about directors] under appropriated life of the necessary to save the “Hyde cedure to the enacted revision gressionally result pregnancy is the mother or the Medicaid affects Amendment” which rape or incest. act of of an revision you how this and to tell program Id.2 implemented. law is to be previously held that
This Court has statute, by the as modified the Medicaid mandatory medical all ser- Amendment, participating As with other requires funding for which fed those is avail- to fund abortions Federаl states vices for which Roe v. Ca is available. eral reimbursement able, required to cover abor- States Cir.1980). sey, 623 F.2d By necessary. medically that are tions Preterm, 605; Inc. Hodgson, 614 also F.2d definition, necessary to that are abortions (1st Cir.), Dukakis, cert. medically mother are the life of the save denied, addition, year Congress this necessary. are bound We L.Ed.2d resulting pregnancies abortions added Accordingly, Medic here. precedent category rape and incest *5 aid, rape abortions is funding for incest and medically necessary abortions for which mandatory states. participating for lan- Based on the funding provided. reported Hyde Amendment was The 1994 and year’s Hyde Amendment guage of this requiring provision a of committee with out history Congressional the of debate on rape for and seeking reimbursement women rape of of victims about the circumstances crimes to the to the report abortions incest incest, change in that this we believe officials. appropriate law enforcement signifies Hyde Amendment the text 1993) (daily Cong.Rec. H4304 ed. June of Congressional that abortions intent (§ 207). However, point of order was a rape or resulting from incest pregnancies language Hyde Amendment raised medically necessary light in of both procedure of the parliamentary violated psychological health factors. prohibits medical and Representatives, which of House “legislate” appropriations Therefore, resulting rape on an from attempts to abortions conceded and point The was order bill. to fall with- considered or incest should be from the stricken bill. entire amendment the medically that are scope in of services Cong.Rec. H4307-08. necessary. delegated her Secretary of has The HHS rape incest be The should definition the Medic- authority to oversee and enforce with each in accordance State’s determined Financing Care program to the Health aid may impose reasonable own law. States (“HCFA”). 35,- Fed.Reg. Administration reporting or documentation (1984). 35,249 promulgated has HCFA may be recipients or nec- providers, provides: regulation that a that an essary to assure themselves abor- expendi- funding] available [Federal terminating a purpose tion was for physician an when tures for abortion rape act pregnancy caused found, writing to the Med- and certified impose reporting may not incest. States pro- the basis of his agency, icaid that on deny requirements that or documentation life of the mother judgment, the fessional coverage abortions endangered impede if the fetus were where would be for carried term. rape or pregnancies incest. result from do reporting requirements (1994). To insure that § 441.203 C.F.R. impede coverage covered prevent or addition, for HCFA In on December abortions, requirement reporting directors, Medicaid issued a directive procedure consid- must be waived and explaining: 108 Stat. is identical in lan- 2. Amendment guage No. to the 1994 Pub.L. version. ered be treating reimbursable by rape caused or incest unless the state physician (1) his or pro- agency: her obtains a statement from certifies opinion, patient unable, physician performing the abortion that fessional physical or woman psychological reasons, was a victim rape or incest that she
comply personally requirement. reported the crime to the
appropriate law enforcement together (2) name of offender; obtains By March all physician from the States must ensure signed woman’s state- their ment effect; State Plans do not lan- contain verifies the reporting guage precludes [federal crime with funding] appropriate agency. law-enforcement abortions performed that are Pa.Cons.Stat. save the § 3215(3) Ann. (Supp.1994).4 Pennsylva- life of the mother or to pregnan- terminate nia Abortion Control Act does not resulting cies contain or incest. provision. waiver Letter, from Sally Richardson, K. Directоr, addition, in eases where carrying the Bureau, to All State Medicaid Di- fetus to term would endanger the life of the (Dec. 1993) rectors (emphasis added), mother, Pennsylvania Act provides that App. at 92-93.3 no state or federal funds can expended However, the Pennsylvania Abortion unless danger is certified by physician Act, Control no federal or state funds can be who is not physician perform who will provided for the pregnancies termination abortion and who has no financial interest position HCFA reaffirmed its regarding the non-notarized, obtained a signed statement another letter to state Med- pregnant from the stating woman that she Directors, *6 icaid which stated: incest, rape was a victim of or as the case HCFA will not establish be, a timeframe may within reported crime, and she the rape which cases of or reported incest must be including offender, the identity of the if to a law agency. enforcement or other State known, to a law agency enforcement having policy law or should dictate when and to requisite or, jurisdiction the in the case of rape whom a reported. or a case of incest must be pregnant incest where a victim, is the minor However, my noted in December county to the protective child agency service letter, the reporting require- State-established stating and the name of the law enforcement ments requirement not serve as an coverage additional agency protective or child agency service to deny to impede payment or for report which the was made and the date pregnancies abortions where rape result or from made; report was (sic). incent (2) physician receives from the facility or The State procedures must establish per- seeking payment, signed the statement of the mit requirements waived, the reporting to be and pregnant woman para- which is described in reimbursed, procedure the physi- the treating graph The statement shall bear the no- that, ciаn opinion, professional in his or her certifies any tice that false statements made therein unable, patient the physical or for punishable by are law and shall state that reasons, psychological comply to with the re- pregnant the woman aware that false re- porting requirements. ports to law enforcement authorities are Letter, Richardson, Sally Director, from K. Med- punishable law; by and Bureau, icaid to All State Medicaid Directors (3) verifies with the law agency enforcement (Mar. 25, 1994) (emphasis added), App. at 116— protective or child agency service named in 17. the pregnant statement of the woman wheth- 4. 3215(j) Section Pennsylvania report Abortion rape er a of or incest was filed with provides: Control Act agency in accordance with the statement. No agency Commonwealth any shall report make Commonwealth any shall payment statements, from Federal or State appropri- funds evidence of false reports of false to by ated perfor- Commonwealth for the law enforcement authorities or fraud in the any pursuant mance of procurement abortion attempted procurement subsection or (c)(2) or payment unless the Commonwealth from appropri- Federal State funds first: by ated pursuant the Commonwealth to this (1)receives physician from the facility section attorney appropriate district seeking payment signed by and, statement jurisdiction appropriate, where to the At- physician performing stating torney abortion General. that, prior abortion, performing he 3215(j). Pa.Cons.Stat.Ann. pre- invalid, under familiar nía statute Pa.Cons.Stat.Aim. procedure. principles. emption 3215(c) (Supp.1994).5 Id. at challenge commenced
The Providers 3215(c) Penn- 3215(j) of the to sections for support found court also The district Act, their own Control Abortion sylvania kinds that “the same holding in the fact Medicaid-eligible behalf and on behalf requirements set and certification reporting Medicaid-eligible victims incеst ap- had Pennsylvania statute in the forth who endangered but whose lives Hyde women versions in earlier peared certification. second-physician obtain cannot cur- in the They removed were Amendment. court district argued oppo- The Providers version, abortion and efforts rent cer- reporting and rejected the Commonwealth’s Con- were them to include nents omitted). (citation are inconsistent The dis- tification Id. at gress.” Amendment, therefore invalid thus concluded trict court elim- congressional the United intent history Supremacy Clause of indicates at 5. Id. requirements. reporting inate the Constitution.6 States held that Further, also district court granted the Providers’ court The district advanced interests crime-fighting and other judgment on the Su- summary motion justify chal- by the Commonwealth Blackwell Elizabeth premacy Clause claim. inconsistent provisions were lenged Knoll, No. 94- Women Center Health were Act and of the Medicaid purposes (E.D.Pa. 1994 WL slip op. at at 4. impermissible. Id. therefore 1994). Relying on decision our Sept. enjoined the Common- court The district (3d Cir.1980), the Casey, Roe v. 3215(c) and enforcing sections wealth that Penn- acknowledged first court district Control Pennsylvania Abortion 3215(j) for which all abortions must cover sylvania Court This appeal followed. Act. This under the provided reimbursement federal stay motion granted the Commonwealth’s then rea- The court Hyde Amendment. ap- pending court of the district the order soned: expedite request peal, and Providers’ restricts requested whereas *7 appeal. this We incest, rape or of funding to cases of the the issue abortion as amicus HHS to address pregnancy require reporting can continuation a state or where extent to which mother, the second-physician the certification endanger the life of the would in imposes additional Act the Pennsylvania statute Medicaid an abor- be entitled to addi- for a woman to these order To the extent of limitations. therefore, Pennsylva- tion. limitations, the tional requisite jurisdiction and having agency the 3215(c) Pennsylvania Abortion
5. Section reported by personally the victim. part: pertinent been provides, in has Act Control (3)When performed the case in abortion no Federal funds and Commonwealth No which, prior by incest by appropriated pregnancy the Common- caused which are funds abortion, expended by State or local has been performance of the be shall to the wealth government performance of by for the a law reported the victim personally abortion, except: jur- having requisite enforcement isdiction, necessary to avert the minor, When abortion or, to the case of a certification mother death agency and protective service county child per- physician will such physician. When has party act the incestuous other pecuniary or or has abortion form report. named been the abortion there proprietary interest 3215(c). 18 Pa.Cons.Stat.Ann. physi- separate from a certification be a shall has no such interest. who cian (2) second-phy- challenged the providers also 6. The performed case When abortion provision of Title as violative sician certification which, prior by rape pregnancy caused Four- Clause of the Due Process XIX and abortion, has been performance of the did district court The teenth Amendment identity of together reported, with claims. these additional address known, offender, to a enforcement law II. REQUIREMENTS REPORTING The Commonwealth maintains that on its
FOR RAPE
face,
OR INCEST
the 1994
Amendment is a simple
prohibition on the use of
money
federal
HHS,
Secretary
The
who administers
specified
certain
purposes.
It sets neither
program,
the Medicaid
interpreted
requirements
prohibitions
nor
states;
on the
Medicaid
statute as modified
the 1994
says
it
nothing explicit about reporting or
Hyde Amendment,
provide that,
absent a
procedures.
certification
The Common-
provision,
waiver
reporting requirements for
wealth concludes
the principles
articulat-
rape or incest
unduly impede
abortions
Pennhurst,
ed in
applied
when
case,
to this
deter a woman’s
right
exercise of her
require that
the district
holding
court’s
medically necessary procedure.
Letter,
reversed because it cannot reasonably be
(Dee. 28, 1993),
(Mar.
93;
App.
Letter,
at
said
Congress
has “unambiguously” for-
1994), App. at 117.
The
does not
bidden reporting and
require-
certification
regard reporting requirements
per
as
se in-
ments such as those
contained
the Penn-
valid.
Id.
If
judgment
is a reasonable
sylvania law.
exercise of
Secretary’s discretion,
it is
The
entitled to
Commonwealth’s
due deference.
reliance on
Our inquiry is
Penn-
misplaced.
hurst is
upon
therefore focused
Pennhurst
whether
involved
Secre-
obligations
tary’s
interpretation
states under the
warrants our
federal
deference.
Devel-
opmentally Disabilities Assistance and Bill of
Rights Act, 42
(“DDA-
§§
A.
BRA”).
In reversing our holding that
The
disputes
Commonwealth
both the Sec-
“bill
rights”
provision of the DDABRA
retary’s and the district
interpreta-
court’s
created
rights
enforceable
and obligations,
tions of the Hyde Amendment mandates re-
the Supreme Court found no evidence that
garding reporting requirements. The Com- Congress intended
grant
to condition the
monwealth maintains that
federal funds on the states’ “assum[ing] the
are valid and
upheld
should be
in their en- high cost of providing ‘appropriate treatment’
tirety.
in the ‘least restrictive environment’ to their
mentally retarded citizens.”
Commonwealth
acknowledges
U.S.
that un
unambiguously.
[Pennhurst, 451
at
incest. Accordingly, the Commonwealth was
(citation
knowledges that
pro
aid
in Title XIX federal
by participants
developing
in
flexibility
states be allowed
regulations.
law
grams
federal
statutory
with
their
administering
procedures for
309, 316-17,
Smith,
88 King v.
statute and
obligations
the Medicaid
(1968);
eligibility requirements
Roe
cannot be so onerous
Casey,
they
C. a they create mandate bеcause this tent with women who for some formidable barrier competing inter- thus faced with We are eligible to obtain abor- be would otherwise as amended statute ests within the The Penn- rape and incest. of tions cases On one Hyde Amendment. by the 1994 hurdles creates numerous sylvania require- statute hand, Pennsylvania reporting (1) a woman rape incest victims: for and averment require physician’s that ments rape incident of report the personally must signed a state- the woman setting forth that authori- law enforcement or incest to state the result of pregnancy her was ment that offender; ties, together with the name ground on the be defended rape or incest can (2) they that required to aver physicians are under interest they further the state’s that from the signed statement have obtained being able “make Hyde Amendment preg- verifying that she pregnant woman Secretary that an abortion was known” to the incest, that she rape nant as a result or representation upon a woman’s performed reporting requirements, complied with was the result pregnancy that reporting false that is aware that Pennsylvania and she requirement incest. The law; the Common- and punishable rape or incest to report the that a woman law verify law enforcement must with a wealth agencies be defended as can law enforcement protective service agency or child repre- that the woman’s attempt to ensure reasonably made. It can report that part state’s are true as sentations can be argued that these unnecessary against “safeguard obligation to rape or 1396a(a)(30)(A). incest for a victim insurmountable utilization.” 42 quality the care to be availability history provision estab- of this 7. The expects provided. that under The committee added it to ensure states lishes eliminating complicated provision, the States will be and impose bureaucratic would eligibility policies determining unrewarding unproductive for mechanisms obtaining recipients care. investigation deter and that will would methods procedures assure that the develop will pro- in order to provision was included This relationships working with med- most effective will not States vide some assurance facilities, suppliers practitioners, ical unduly complicated of determin- methods use encourage their service in order care and delaying effect of ing eligibility which have the provi- cooperation participation in the full fashion the decision on in an unwarranted plan. State under the sion of services or that the eligibility medical assistance reprint- Cong., S.Rep. 1st Sess. No. 89th provisions administer States will not 1943, 2017. U.S.C.C.A.N. adversely ed in 1965 way affects the services in a *11 ion, unable, may patient who be traumatized the event. We the physical for or vastly rape underreported reasons, psychological are aware is a comply to crime, reasonably argued it can be requirement. Pennsylva-
reporting requirements such as (Dec. Letter, 28, 1993), App. also See substantially nia’s can deter some women (Mar. Letter, (reiterat- 25,1994), App. at 117 receiving services intended to be avail- ing the for provision need waiver in state- able to them under the statute. reporting requirements). established Secretary responsi- HHS bears of the Under Secretary’s interpretation, phy- bility reconciling competing of these interests may sicians take into account both the imme- Comí; Supreme has not- the statute. The long-term psychological diate and conse- appreciating complexi- “[p]erhaps ed that quences reporting rape of or incest to au- ty wrought, Congress of what it had con- thorities that could leave a woman to unable Secretary exceptionally ferred on broad reporting requirements. fulfill those A waiv- authority prescribe to applying standards for reporting er thus ensures that requirements certain [Medicaid] sections Act.” prevent impede do not or coverage cov- for Panthers, Gray Schweiker v. Pennsylvania’s ered abortions. Without as- it surance that will waive the reporting re- Secretary com- has concluded that these quirements if physically the woman is or peting interests are best reconciled psychologically comply, unable to the Penn- reporting requirements pro- contain a waiver sylvania requirements Abortion Control Act allowing treating physician certify vision a comprise impermissible eligibility criteria. comply that the woman was unable to with requirements reporting physical psy- or The December 1993 HCFA directive chological reasons. Secretary’s attempt give constituted the interpretive guidance to states in advance explained point The Director of HCFA their plans.8 submission of state Medicaid in her December 1993 directive all state interpretation The HCFA directive is an Medicaid directors: Amendment mandates as recon mandatory As with all other medical ser- with competing ciled interests within funding vices which Federal is avail- statute. Since directive clari able, required States are abor- cover law, explains existing fies and deem medically necessary.... tions that are “interpretive.” Sullivan, Bailey v. may impose reporting States reasonable or (“If (3d Cir.1989) the rule in requirements recipients documentation merely question explains existing clarifies or providers, necessary may or be as- regulations, or be law it will deemed inter sure an themselves that abortion was for pretive.”); American Min. v. purpose terminating pregnancy MSHA, (D.C.Cir.1993) rape an caused act of or States incest. (setting distinguish out factors to between impose reporting or documenta- rules). interpretive As deny impede tion or rule, interpretive Secretary’s pronounce coverage pregnancies for abortions where exempted ments are from the APA result from or incest. notice- To insure requirements. and-comment reporting requirements do 5 U.S.C. prevent 553(b)(A) (notice abortions, requirement ap impede coverage does not for covered rules, reporting requirement interpretive “to ply general must be statements procedure policy, agency organization, waived and the considered or rules of treating physician reimbursable if the cer- procedure, practice”). This Court opin- Supreme validity tifies that his or her professional upheld Court have action, Ridge yet grounds 8. We aware related tional because the has not Shalala, currently pend- No. which is hearing called for nor issued decision about Court, ing in this in which the Commonwealth plan conformity Pennsylvania’s challenging requirement HHS's "waiver” as vio- Shalala, Casey Amendment. No. 94-390 lative of the Administrative Procedures Act. The (M.D.Pa. 28, 1994). Nov. jurisdic- district court dismissed action on *12 182 interpretation 62; It true that Bureau’s is Bailey, F.2d at 885 rules. interpretive — “Program only in a Statement”— appears Hospital, Guernsey Memorial v.
Shalala than guideline 1237, agency 1232, an internal 131 —, —, 115 S.Ct. U.S. —rather subject to the regulations “published (1995). 106 L.Ed.2d Procedure] Administrative rigors of the long recognized have Courts comment.” Act, including public notice and must be conferred to weight” “considerable agency internal at 562. But BOP’s 21 F.3d of a department’s construction an executive “interpretive is akin to guideline, which it is entrusted to statutory scheme notiee-and- require that “do[es] rule” has an Supreme Court The administer. comment,” Guernsey Memorial v. Shalala of deference to principle nounced ——, [115 S.Ct. Hospital, 514 U.S. interpretation: administrative (1995) (slip 1239, 1232, 106] 131 L.Ed.2d consistently this followed has been deference, 11), to some is still entitled op., at meaning to the decision as whenever Court Safety ., Occupational v. Martin cf reconcil has involved statute or reach 144, Comm’n, 499 U.S. Review and Health a full under conflicting policies, and ing 1171, 1179, 113 117] L.Ed.2d [111 157 S.Ct. statutory poli force of standing of the construc (1991), “permissible it is a since depended has given situation cy U.S.A., Chevron, Inc. statute.” tion of the knowledge ordinary re upon more than Council, Natural Resources v. Defense subjected to specting matters 2778, 837, Inc., [104 843 S.Ct. 467 U.S. reprеsents If this choice regulations.... 694] 81 L.Ed.2d conflicting accommodation reasonable — —, -—, Koray, U.S. Reno v. agen committed policies that were 2026-27, 132 L.Ed.2d statute, should by the cy’s care omitted). (1995) (footnote stat appears from the unless it disturb it of the com- Secretary’s reconciliation The history that the ac its ute or statute and in the Medicaid peting interests Congress not one that commodation Because Hyde is reasonable. Amendment sanctioned. would have contemporane- Secretary’s consistent and Chevron, U.S.A., v. Resources Inc. Natural of the Medicaid ously expressed construction 844-45, Council, Defense statute as amended (1984) 2782-83, 81 L.Ed.2d one, considera- it is accorded is a reasonable omitted). (citations appro- deference Such principles announced weight under ble Secretary’s though the in- priate here even Chevron. “legislative in a not contained terpretation is See, Ass’n to the Secre- e.g., Health Insurance we will defer Accordingly, rule.” Shalala, 23 F.3d Amend- interpretation tary’s America Cantrell, Pennsylva- (D.C.Cir.1994); ment, 803 F.2d Hicks v. that because and hold Cir.1986). (4th Indeed, the Su- lack a reporting requirements waiver 791-92 nia recently may deprive eligible our decision preme procedure Court reversed therefore Sizer, has Koray v. benefits which women them, Cir.1994), to defer are to we had declined made where available interpretation law and are of Prisons’ in conflict with the Bureau extent federal 3585(b). Supreme Court ex- Service § Louisiana Public invalid. 368-69, F.C.C., plained: Comm’n. 90 L.Ed.2d Bureau, agency charged with S.Ct. as the (under Clause, a Supremacy federal ... administering the credit statute scope congres- of its 3585(b)’s acting within detention” “official interpreted power delegated authority has sionally spent time require language to credit 3142(e) regulation and render unen- preempt “deten- by a defendant laws). Thus, Pennsylva- until forceable state explained, have As we tion order”.... law, adopts a nia, waiver pursuant to state interpretation is the most ... the Bureau’s Secretary’s accordance with reading provision in natural reasonable enjoined directive, 3585(b)’s Commonwealth language. “official detention” enforcing and incest reporting give We must substantial deference requirements. to an agency s construction of regula its own
tion. Martin v. Occupational Safety and
*13
Comm’n,
Health Review
144,
499 U.S.
150-
III. SECOND PHYSICIAN
51,
1171,
111
S.Ct.
The that the Secretary’s con comports struction plain with the language of funding] [Federal is in expendi- available regulation. the phrase The “[Federal fund tures for an physician abortion when a has ing] is available ... for an abortion when a found, and in writing certified to the Med- physician has found and certified [that the agency, icaid that on the pro- basis of his life is endangered]” mother’s not limit does fessional judgment, the life of the mother physicians class who have the authori endangered would be if the fetus were ty certify. We believe that reading this carried to term. regulation gives phrase physician” “a added). ordinary 42 C.F.R. its (emphasis 441.203 meaning. natural This — regulation Meyer, has not F.D.I.C. v. —, been altered substance —-—, since its promulgation. initial 114 S.Ct. (1994) (“[W]e construe a statutory term in Secretary The construes regulation accordance with ordinary or natural provide any if physician including a wom- — meaning.”). attending an’s physician that —certifies life of the mother endangered, would be Further, fed- the history physician of certi- funding eral is “available.” Consistent regulation with fication indicates that the Secre- holding our Casey Roe v. that tary states are intended this construction at the time of
required by the Medicaid Act to fund all
the regulation’s promulgation. The 1976
abortion
services
are allowed under
provided
for federal fund-
Hyde Amendment, the Secretary
ing
concludes
“where the life of the mother would be
that a
regulation
state
that attempts, in
endangered
ef-
if the fetus were
earned
fect,
require
physician’s
second
certifica-
94^39,
term.” Pub.L.
No.
90 Stat.
tion
addition
ato
given by
certification
“a
The 1976
Amend-
physician” is inconsistent
regulation.
ment did
require
physician’s
certifiea-
Gardebring,
recog-
reading
Court, while
Supreme
regulation’s
is
compelled by
plain
nizing that had not
taken
Secretary
language
position
other indications
the Secre-
litigation,
until
held that:
regulation's
intent
the time of the
tary's
when
regulation
it is the
that we
Secretary's
promulgation.
construing,
and when there is no
claim
tion. §§ (citing 42 U.S.C. L.Ed.2d stated that: rule-making which posed objective to as 1396a(a)(10)). further A finan- provide Federal will Department plans are adminis sure that abortions cost of participation cial simplicity consistent a manner tered “in on the attending physician, only where interest of and the best administration judgment, professional her of his basis 1396a(a)(19); Hodg 42 U.S.C. recipients.” necessary the abortion certified Secretary’s con son, at 607. would be mother life because regulation implementing struction carried to were if the fetus endangerеd provision certification endangerment term. *14 In objectives. these to further said could be added). (1977) (emphasis Fed.Reg. 42 40486 441.203, § 42 promulgating C.F.R. mean- notice as this Secretary construed The Secretary noted: the fraud, physi- the of “in absence ing that the require- the certification purpose of The 43 conclusive.” be judgment would cian’s to Department the to enable is not ment (1978). Fed.Reg. 4574 judgment, but rather physician question Amendment, the 1977 enacting In in fact judgment has physician that ensure Hyde Amend- 1976 the retained most This is efficient the exercised. been for abor- concerning funding language ment a agency or by a State which manner endangered. is life mother’s when the tions Department the project or program —or 1460 § 91 Stat. No. Pub.L. re- other enforcement conducting audits that the Secretary concluded The statutory the that ascertain views— the manner question Congress to of failure finan- Federal a claim for for requirements imple- previously Secretary had the which been in an have abortion participation cial its reenactment exception, the mented met. as con- understood be change, should without Thus, to the will defer Fed.Reg. 4574. Secretary’s inter- approval gressional regulation of her Secretary’s interpretation Thus, not- Fed.Reg. pretation. eligi- triggering condition that the sufficient silence, the Secre- Congress’ withstanding certi- abortion is funded bility a Medicaid con- regulations implementing tary’s life a woman’s any physician that by fication be that Congress to the intent strued carrying the by fetus endangered would be by physi- a endangerment life certification term. Fed.Reg. 4570 required. be should cian Secretary’s construction to the In Secretary’s contrast 50.304). con- (§ Accordingly, the Penn- regulation, certification the federal C.F.R. regulation, of her struction narrow requirements certification sylvania’s funding 441.203, for federal providing § as part pertinent Secretary’s criteria. the a woman’s “any physician” including when — 3215(c) Pennsylvania Abortion the life of attending physician —certifies or federal provides no Act consis- Control endangered, is be mother would abortion, ex- for an expended funds will regulation. history tent with cept: consis is also Secretary’s construction necessary avert the is abortion When XIX of Title requirements with other tent by a on certification of the mother death Section regulations. implementing per- physician mil When physician. 1396a(a)(17) establish that states mandates pecuniary or has abortion form “consistent that are eligibility there the abortion interest proprietary XIX. objectives” of Title separate abe shall certification Doe, Supreme 1396a(a)(17). In Beal v. such interest. has no who physician broadly “Title XIX’s explained Court 3215(c)(1) (emphasis Pa.Cons.Stat.Ann. to enable each objective [is] primary stated Medic- added). Commonwealth’s Under furnish medical state, practicable, far as as attending physician scheme, even aid income and whose to individuals assistance certifies abortion provide who is costs of to meet insufficient resources life necessary because Doe, procedure Beal services.” necessary medical endangerment, yet there must be another I believe that what would have effect, certification. give Commonwealth’s us due, her is not deference but rather regulation renders the certification of an amok, at- deference run I reach a different re- tending physician reading irrelevant. This sult than majority, and must dissent.1 contrary Secretary’s regulation, I.
provides funding that federal un- available der such circumstances. A. Accordingly, Pennsylvania because the sec- Federal courts are by commanded Chevron ond-physician requirement certification and a host of give other cases to deference to necessary abortions to save the life of the certain legal conclusions of administrative mother conflicts implement- with a Medicaid agencies. But deference “cannot be allowed ing regulation by Secretary, construed sliр judicial into inertia which results in requirement is invalid. assumption unauthorized major policy properly decisions made CONCLUSION Congress.” FLRA, BATF v. hold Secretary’s We construction (1983); *15 Hyde of the Amendment is and reasonable accord EEOC v. Arabian Am. Oil Co. requires due deference. Under the Secre- (“ARAMCO”), 244, 260-62, 499 U.S. 3215(c) tary’s interpretation, both and (1991) S.Ct. Pennsylvania Abortion Con- (Scalia, J., (“deference concurring) 3215© is not ab- (1) trol Act are insofar as invalid fail to dication”); Hosp. St. Luke’s v. allow for a rape waiver of the and incest Servs., Health & Human 810 F.2d reporting requirements in with accordance (1st Cir.1987) BATF). (quoting It is there- (2) the HCFA require directives and certifi- fore carefully vital that we consider each case by physician cation a second in cases where to determine whether deference is warrant- endangered. life of the mother is Ac- ed, and, so, if how much to accord. Anything cordingly, we will affirm the order of the potential judicial less has the to be abdication district enjoins court to extent that it judicial rather than review. See Hi-Craft (1) Commonwealth requiring certifica- NLRB, Clothing v.Co. 660 F.2d 914-16 tion physician, a second enforcing and (3d Cir.1981); Bowen, West v. 879 F.2d rape and reporting requirements incest (3d Cir.1989) (Mansmann, J., concurring adopts, pursuant law, until it to state waiv- dissenting); Weis, Jr., Joseph Hon. A W. er in accordance with the HCFA directive. Perspective Judicial On to Ad- Deference In all respects, provisions other these remain Agencies: ministrative Some Grenades enforceable. We entry will remand for the Trenches, From the 2 Admin.L.J. of an order tailored accordance (1988). decision.
B. NYGAARD, Judge, Circuit dissenting. The full language Amendment provides Today, that, follows: majority as holds simple expedient letter, writing appropriated a sub- None of the funds under this eabinet-level preempt bureaucrat expended federal can Act shall be abortion statutory enactment of an except elected it is made when to the Fed- known legislature. holding It prin bases its entity eral or official to funds are ciple Chevron, set forth in appropriated deference pro- under this Act that such U.S.A., Inc. v. Natural Resources necessary cedure save the life of the Defense Council, Inc., 837, 104 S.Ct. mother pregnancy or is the result (1984), L.Ed.2d 694 and later cases. rape Because of an act or incest. are, My back, doing
1. regrettably you reasons for so your for the should lean clutch the sides of whole, chairs, digest readers who must yourselves...." them somewhat steel Hon. Antonin Scalia, lengthy and involved. As Justice Scalia once Judicial Inter- Administrative Deference- said, Law, pretations "Administrative law is not for sissies—so 1989 Duke L.J. 511. 842-43, at 2781-82 at 107 Stat. No. Pub.L. omitted). (footnotes written, statutory lan- As re- requires nor forbids state guage neither appropriate level of recapitulate, “the To in cases of or porting requirements agency’s construction of a due an deference correctly re- incest, majority quite and the depends on the it administers statute providers jects position Pennsylvania clarity of the statute.” per requirements are court that such district Human Dep’t Health & States United se in conflict with Cir.1991). Servs., 928 F.2d 178-180). majority then (majority at one, step examine the statuto In we Chevron goes hold that we must defer on to Congress ry language whether to determine interpretation of the Director Chevron issue; has, if it we directly spoken to the has reporting Bureau that of the Medicaid Pennsylva step two. proceed to do not even requirements are invalid certification Snider, 886, 902 Soc’y nia Medical provision. Id. at 183- of a waiver absence (3d Cir.1994). spo Only Congress I this to be incorrect. believe step two of the Chevron apply ken limited to review analysis. And then we are C. ing agency’s construction of whether the reviewing “permissible.” Before a statute is Chevron, the Environmental Protection two, however, step can even reach court to de- Agency promulgated a rule explicitly implicit must find “stationary statutory fine the term source” authority ly delegated to the manufacturing plant. The Clean an entire statutory issue. provision сonstrue Act, requiring permits for new Air while *16 Barrett, 494 Adams Fruit Co. v. sources, gave stationary no indica- modified 1384, 1390, 108 L.Ed.2d defined. such a source should be tion of how (“[A] precondition to deference judicial re- approaching In the standard delegation congressional under Chevron is a choice, agency’s Supreme view of the simply I authority.”). do of administrative analysis: employed a bifurcated Court delegation was a here. See not believe there First, always, question of whether is the part IV. infra pre- Congress directly spoken to the question at issue. If the intent cise clear, the end of the Congress is that is II.
matter,
court,
agen-
as well as the
unambiguously
cy,
give
must
effect to the
A.
If,
Congress.
howev-
expressed intent
majority, relying
Bailey v.
er,
Congress
Sulli-
has not
.The
the court determines
Cir.1989)
(3d
van,
and Amer-
directly
precise question at
885 F.2d
addressed the
Safety
issue,
Mining Congress v. Mine
&
simply impose its
ican
the court does not
Admin.,
statute,
Health
995 F.2d
as would
own construction
(D.C.Cir.1993), concludes that
the letters
necessary in
of an adminis-
the absence
Rather,
interpretive
validly promulgated
interpretation.
the stat-
constitute
trative
(majority
legislative rules
ambiguous
respect to rules rather than
ute is silent or
181).2
that,
issue,
reluctantly
agree
I
specific
question for the
must be
binding
precedent,
circuit
the letters
agency’s
answer is
court is whether
I unfet-
interpretive
as
rules. Were
permissible construction of the
treated
based on a
however,
by precedent,
I would con-
tered
statute.
Comm'n,
Texaco,
Cir.1992);
majority's
v. Federal Power
hold-
Inc.
2. This conclusion is vital to the
Act,
Indeed,
(3d Cir.1969).
ing. Under the Administrative Procedure
412 F.2d
nonlegislative.
legislative
be either
rules
legislative
promulgated in ac-
which is not
rale
according
legislative
promulgated
rule must be
A
APAis not
cordance
procedures of 5
to the notice and comment
See,
Chrys-
e.g.,
of law.
entitled to have the force
which the
did not do in
Brown,
Corp.
ler
E.,
E.g.,
v. United States
this case.
Inc.
Beazer
60 L.Ed.2d
Agency,
Envtl. Protection
963 F.2d
rules,”
“spurious
elude that
the letters are
[legislative].
yet
Put
way,
another
“what
whatsoever,
weight
distinguishes
entitled to no
I
interpretive
shall
legislative
explain shortly.
legal
rules is
upon
base
which the rule
rests.
If the rule is
specific
based on
Bailey,
opined
“[i]f the rule
statutory provisions,
validity
and its
stands
question merely
explains existing
clarifies or
or falls on the correctness of the agency’s
regulations,
law or
it will be deemed inter-
interpretation of
provisions,
those
it is an
pretive.”
majority
189 (D.C.Cir.1980)). It inherently “avoid[s] this, Beyond all of the APA rulemaking arbitrary unpublished nature impose determina salutary discipline. Ruiz, discipline tions.” Morton v. That 94 deters casual and sloppy action, thereby and 39 L.Ed.2d forestalls No the confusion and litigation needless tice and that can comment also result salutary serves the such action. discipline And that purpose forcing reduces educatе tendencies toward over-regulation facts, bu- itself policy options issues and reaucratic overreaching, and discourages issuing binding available before regulations. low-profile attempts to create practically- FLRA, Texaco, (quoting F.2d at 763 binding norms that Congress or the Ad- 744); Marshall, F.2d at Batterton v. ministration would not have approved. (same); F.2d at 703-04 accord Marshall v. Anthony, Robert A. Interpretive Rules, Co., Western Union Tel. Poli- 621 F.2d Statements, cy Guidances, Manuals, (3d Cir.1980); and the ‘Well, Anthony, Robert A. Agencies Like —Should Federal Use Them to Permit, You Want the Don’t Agency You?” Public?, Bind the 1311,1373-74 Duke L.J. Nonlegislative Make Documents Efforts (1992), published also as Administrative Con- Public, Bind the 44 Admin L.Rev. States, ference of the United Recommenda- Anthony, Agency [hereinafter Efforts]. Reports, tions Report Recommenda- say I can it no better than Professor Antho tion 1992 ACUS 136-37.6 ny, who states: Jersey Department New Health & by Values served rule- Servs., Human Cir. making process large are ones. Fairness 1981), explained: by giving is furthered notice to those who APA The proce- notice comment bound, are to be proposed both when the good dures exist for reason: to ensure that rule is about to be considered and when administrators, unelected who are not di- the final rule is definitively published. rectly accountable populace, are accuracy thoroughness of an to justify forced quasi-legislative their agency’s by actions are enhanced the re- rulemaking before skepti- an informed and quirement that it invite and consider the public. cal procedures When these are not world, comments of all the including those followed situations where are directly able, persons affected who are applicable, fact promotes a court neither uniquely, often pertinent to supply infor- agency’s ultimate mission respect nor analysis. mation and acceptability by ignoring the law agency’s indis- and therefore the effectiveness of a final condoning cretion or agency’s shortcut. rule by openness elevated of the There great danger is indeed a giving procedures through it has been de- (and often, Chevron deference legislative ef- liberated public’s sense of use- fect) to rules promulgated without the bene- ful participation process in a that affects fit of notice and rulemaking. comment First them. legitimacy Its upon rests all of all, encourages agencies to flout the considerations, these as upon well the Administrative Procedure Act and issue foundational fact has ob- binding regulations in informal formats. See served the procedures laid down Con- Community v. Young, Nutrition Inst. gress for establishing rules the bind- (D.C.Cir.1987) (Starr, J., *19 F.2d con- ing force of law. The agency’s accounta- curring and dissenting) (agencies may yield bility for deepened its rules is by the temptation to legislative rules with issue requirement court-made aof reasoned ex- interpretive effect in formats to scruti- avoid planation upon based a substantial ny). all, rule- reviewing After once a court defers making record. rule, upholds as the The Administrative general Conference applicability United merits of that are intended adopted States Anthony's Professor impose binding recommen- substantive standards obli- 5, 1384; dation. 1992 ACUS 41 gations upon Duke L.J. at see persons using leg- affected without 1 C.F.R. 305.92-2. rulemaking procedures Recommendation (normally 92-2 islative ing includ- provides "[a]gencies notice-and-comment).” should not issue state- consideration, the validi- in its here, ness evident law without
majority
it becomes
does
consistency
reasoning,
ty of
its
legisla
agency taking true
of the
the bother
and all
pronouncements,
later
earlier and
Worse,
private par
it results in
tive action.
give
power
per-
case,
those factors
(and,
in this
Commonwealth
ties
suade,
lacking power
to control.
by
proposition
“a
Pennsylvania) being bound
shape and will
opportunity to
had no
decades
approach
reaffirmed three
This
was
challenge
meaningful opportunity to
have no
Gilbert,
Elec.
v.
429 U.S.
later in General
Co
National Fаmi
applied
it is
to them.”
when
401, 411,
125, 141-42,
50 L.Ed.2d
97 S.Ct.
Ass’n, Inc. v.
Planning
Reprod. Health
ly
&
(1976),
analyzed an EEOC
where the Court
(D.C.Cir.1992)
Sullivan,
227, 240
interpretive rule under
guideline as an
38;
Efforts, supra, at
(citing Anthony, Agency
doctrine.7
Skidmore
Anthony,
Agency
Which
quoting Robert A.
course,
Chevron,
a watershed deci-
Bind Citizens
Interpretations Should
judicial
regu-
deference
sion in the area
(1990));
Courts,
Reg.
7 Yale J. on
however,
latory agencies.
Significantly,
Richard J.
1 Kenneth C. Davis &
see also
promulgated
properly
involved
Chevron
3.5,
Pierce,
Law Treatise
Administrative
simply
That case
did
legislative rule.
(Chevron
(1994)
inappro
deference
at 119-20
court
of consideration a
deal with the level
rules).
I find such
priate
nonlegislative
rule, and
give
interpretive
an
did
should
juris-
politically undemocratic and
result both
not overrule Skidmore.
prudentially odious.
Chevron,
Indeed,
years following
III.
that Skid-
Supreme Court has reaffirmed
appropriate stan
is the
more consideration
majority,
treating the two let-
The
while
interpretive rules.
of review for
dard
rules,
gives
interpretive
nevertheless
ters as
Occupational Safety & Health Re
Martin v.
Chevron, a case
them full deference under
Comm’n,
144, 157, 111 S.Ct.
view
499 U.S.
of a
rule
that arose
the context
(1991),
705). Indeed,
applied
we
this stan
FLRA
appropriate
Gilbert is the
standard of review
interpretive
an
dard of review to an
rule
Atchison,
interpretive
rules.
In
T. &
give
it
nounced
letter form and refused to
(7th Cir.1994)
Peña,
Ry.
S.F.
First
thoroughly
did not
consider the
issue
re-
Finally, I turn to the
issue of
ex-
porting
requirements.
and certification
pertise.
If
this case involved
*24
directors,
the two letters to state Medicaid
typically
issues we
review under the Medic-
agency provides
explanation
why
no
at all
Act, I
say
aid
would be the first to
provision.
states must have a waiver
Other Secretary
developed
a tremendous
explanation
than the
it offers in its amicus
here,
amount of it. That is not the case
(which
requested),
agency
brief
we
offers
Hyde Amendment,
however. Under
justification
no
for its rule. This is similar to
abortion,
funding for
in
rape
even
cases of
Mathews,
the situation we faced in
590 F.2d
incest,
was forbidden
through
from 1982
1258,
rejected
agency’s
at
where we
in-
Quite simply,
pregnancies
abortion of
terpretation.
by rape
caused
and incest is
something
agency
has had to deal with within recent
brief,
Secretary
Even in her
states
memory.
institutional
certainly
And it
is no
only that
lack
provision
of a waiver
could
expert
criminology
rape
on the
and incest
“insuperable
become an
barrier” to
victims
reporting.
any
It therefore
compara-
lacks
rape
seeking
and incest
Medicaid-funded
advantage
tive
vis-a-vis this court with re-
abortions, relying entirely on the fact that
spect to the issue at hand.
I would therefore
“vastly underreported”
is a
crime. This
agency’s
not accord
interpretation
con-
speculative
reasoning,
is both
and shallow
trolling weight.
Clothing,
See
660
and,
event,
any
nothing
is
more than a
Hi-Craft
915; Mathews,
1259;
F.2d at
590
at
F.2d
litigating position
weight.
entitled to no
See
Director,
1318,
Mangifest,
OWCP
826 F.2d
Martin,
L.Ed.2d 493
I re
main unconvinced that the
has re
My
philosophically
conclusion is
annealed
ally
necessary
taken the
“hard look” at this
agency’s
the fact that the
letters do not
question.
Greater Boston Television
Cf.
merely regulate
private
party;
at
Corp.
Comm’n,
v. Federal Communications
tempt
preempt
to
a state statute. One of the
(D.C.Cir.1970) (“hard
reasons for Chevron
deference is
“feder
necessary
satisfy
look”
to
reviewing court
judges
constituency
al
have no
—who
—have
agency
action not
“impermissi
based on
duty
respect
legitimate policy
to
choices
whim, improper
ble
misplaced
influence or
Chevron,
made
those who do.”
467 U.S.
denied,
zeal”),
cert.
403 U.S.
91 S.Ct.
argument
at
104
at
S.Ct.
2793. The
(1971).
2233,
policy choices
judges. IV. considerably, howev That situation shifts finally Pennsylvania’s brings That me There, er, preemption. in the context requirement. certification physician second (1) are: une policymakers alternative two explaining its agency’s two letters Unlike bu theoretically accountable only lected and and certification reporting interpretation of balance; and on one side
reaucrats
Secretary promulgat-
requirements, here the
the other.
legislators state
the elected
purported
legislative rule with the
a valid
ed
tips
case,
the balance
and I
is our
think
That
§ 441.203
42 C.F.R.
of law. See
force
law, not
sharply
upholding
in favor of
physician”). Her
of “a
(speaking
terms
interpretation. Under the
agency’s
federal
*25
therefore,
to
interpretation,
appear
would
Clause,
agency only has
Supremacy
a federal
her
directly
regulation,
the text of
flow
clearly, consci
preempt when it
power
existing duty.
of an
merely reminding states
delegated
lawfully
entiously and
exercises
APA, not when
authority
under
553
believe, however,
Congress
I do not
interpretive rule.
Puerto
an
it issues
Cf.
any authority
delegated
for the Secre-
ever
v.
Petro
Isla
Dep’t Consumer
Rico
Affairs
recognize that
I
tary make
a rule.
1350,
495, 503, 108 S.Ct.
Corp., 485 U.S.
leum
“exceptionally
au-
Secretary
broad
has
(“a
clear and
99 L.Ed.2d
itself,
thority”
interpret
the Medicaid Act
always
purpose is
re
[federal]
manifest
Panthers,
Gray
453 U.S.
v.
Schweiker
Ray v. Atlantic
quired”
preemption);
(1981);
L.Ed.2d 460
Co.,
151, 157, 98 S.Ct.
Richfield
Act is
majority at
but the Medicaid
see
(1978) (same).
L.Ed.2d 179
statutory
under
at
here. The
text
not
issue
circuit,
Hyde
to the
interpretation is
Indeed,
an
of this
law
appropriations bill that funds
preempt
law.
interpretive rule
cannot
Sons,
is not one scintilla
Dunlap
program,
there
&
United States Walter
See
Cir.1986) (“Be-
Hyde
Con-
Inc.,
Amendment that
evidence
800 F.2d
interpret
Secretary to
gress intended the
FmHA
regulations on which
relies
cause
appropria-
extent of her
congressional
scope
either the
of a
do not have the force
validity
state-imposed second
or the
is no indication tion
and because there
directive
requirements. Unlike
physician
agency regulation
certification
Congress
intended
statutes administered
uniform state
most substantive
supersede long-standing
law
Hyde Amendment
area,
regulatory agencies, the
accept
govern-
decline
in this
enabling the
provision
contains no
regulations con-
position that
ment’s
trol.”).
sense,
regulations with the force of law.
to make
good logical
be-
This makes
best,
law,
mere
At
it is silent on the issue. The
displace
and an
it takes law to
cause
silence, however,
fact of
does
force of law. Oth-
interpretive rule lacks the
necеssarily imply
existence of a deliber-
appear to be in
er
and commentators
courts
statute,
3.59,
gap
much less a
“gap”
ate
Wright, supra,
See Koch &
accord.
Congress intended
Secre-
we must infer
(Supp.1995) (citing South Central
at 73-74
regula-
Comm’n,
through administrative
tary to fill
Pub.
Tel. v. Louisiana
Serv.
Bell
(5th
delegation, the
Cir.1984),
was no
on oth-
tion.16 Because there
vacated
properly treated
as an
rule.
ASSOCIATES,
In re INDIAN PALMS
ARAMCO,
256-58,
(WFT).
LTD.,
at
111 S.Ct.
U.S.
B.C. 90-25765
Gilbert,
1235;
at
at
Batterton,
410-11;
Applying a to 42 C.F.R. Skidmore 441.203, probably, it would under normal BANK; FEDERAL CALIFORNIA Indian circumstances, controlling be entitled to Associates, Palms Ltd. Office of all, weight. regulation, was enact- after United States Trustee ed soon after the first Amendment was changed passed and has not since. *Argo Partnership, Loan Limited Moreover, because the Amendment has Appellant. always permitted funding for Medicaid abor- No. 94-5265. tions the life of the mother where would endangered, does otherwise Appeals, United States Court of expertise have considerable in this area. Or- Third Circuit. then, majori- dinarily, agree I would ty Secretary’s interpretation is con- Argued Dec. 1994. trolling. July Decided III(C), already As I have discussed in Part however, ease, preemption this is a and an
interpretive preempt rule cannot state law.
Dunlap, Accordingly, F.2d at 1239. I Pennsylvania’s uphold physi- second
would requirement.
cian certification
V. incorrectly majority
Because the defers Secretary’s interpreta- to the Chevron
tions, and no basis for its because there is itself,
holding I
dissent. (1989) (“An delegation through legis- ambiguity simply
not obtain untrammeled discretion lative should not not a Herz, silence.”); ("Courts supra Sunstein, at 204 law-interpreting power.”); Cass R. equate clarity a mere lack of with a Deal, Constitutionalism the New 101 Harv. After delegation decision-making authority (1987) (same). L.Rev. Sunstein, agency.”); Interpreting Cass R. Statutes * State, (Pursuant order). Regulatory 103 Harv.L.Rev. to Court’s 9/12/94