Re: 2nd Circuit Upholds Constitutionality of Ban on Prenatal Care
From: art fougner, md (evsono@pipeline.com)
Wed May 23 17:29:59 2001
well then - this decision sets up an interesting collision between the
courts and the congress vis a vis the fetal protection bill which passed
the house.
art
At Wed, 23 May 2001, Dean Huffman wrote:
>
>..
>
>A sad commentary on our country -- see below.
>
>A famous US Supreme court in the late 1890's, United States v. Wong Kim Ark
>(169 US 649), <http://www.cetel.org/1898_wongkim.html>, established that
>the 14th amendment gives automatic citizenship to anybody born in the
>United States, irrespective of the status of the parents, except in the
>case of diplomats. (This case is under attack by anti-immigration groups --
>it is what confers automatic citizenship on American born babies of illegal
>immigrants.) Hence we have the fact that the newborn will automatically be
>a US citizen at birth, but that its mother can be denied prenatal care
>before birth. Therefore, if there is a prenatal condition that could have
>been treated or prevented, the costs (or cost savings) of care for the
>newborn could far outweigh the costs of postnatal care. Not very wise
>thinking. I wonder how this would play in Alabama where, according to
>previous posts from this forum, the fetus is a person.
>
>There is at least one federal appellate decision that I am aware of, from
>Georgia, under ERISA, that held that the insurance company had to pay for
>prenatal care for preterm labor because, even though the mother did not yet
>qualify for care under the insurance plan, her unborn fetus DID qualify
>and, further, the care for preterm labor was intended for the benefit of
>the fetus/newborn, rather than for the benefit of the pregnant woman. I do
>not have a citation for this case, from the 1980's, but I could probably
>find it if anybody wants. Ironically, the husband worked for the insurance
>company that refused to provide coverage for the preterm labor of his wife.
>Go figure.
>
>- - - -
>
>2nd Circuit Upholds Constitutionality of Ban on Prenatal Care for Illegal
>Aliens
>
>New York Law Journal
>
>The Welfare Reform Act's prohibition on Medicaid-sponsored prenatal care
>for illegal aliens is constitutional, the 2nd U.S. Circuit Court of Appeals
>ruled. The appeals court, in litigation that has run for 22 years, reversed
>a federal judge's finding that the statute was unconstitutional as applied
>to prenatal care for alien mothers, but agreed that their citizen children
>are automatically entitled to benefits.
>
>http://www.law.com/cgi-bin/nwlink.cgi?ACG=ZZZDI37B2NC
>
>- - - -
>
>The Welfare Reform Act's prohibition on Medicaid-sponsored prenatal care
>for most illegal aliens is constitutional, the 2nd U.S. Circuit Court of
>Appeals for ruled Tuesday.
>
>The appeals court, in litigation that has been running for 22 years,
>reversed the finding by Senior Judge Charles P. Sifton of the U.S. District
>Court for the Eastern District of New York that the statute was
>unconstitutional as applied to the prenatal care for alien mothers.
>
>But the court agreed with Sifton that citizen children of alien mothers are
>entitled to automatic eligibility benefits for one year following the birth
>of a child -- putting them on a par with citizen children of citizen mothers.
>
>In an opinion by Senior Judge Jon O. Newman, Lewis v. Thompson, 00-6104,
>the court remanded the case to Sifton for modification of his long-standing
>injunction, so federal officials can ensure that citizen children of alien
>mothers are treated the same as citizen children of citizen mothers.
>
>The suit was filed in 1979 by plaintiff Lydia Lewis on behalf of a class of
>women who were being denied Medicaid on the basis of their alien status.
>Judge Sifton issued an injunction in the case in 1987, and since that time,
>Congress made several changes in Medicaid eligibility that culminated with
>the enactment of the Welfare Reform Act in 1996.
>
>In the act, Judge Newman said, "Congress altered the terrain of this case
>yet again by imposing sweeping restrictions on aliens' access to federally
>sponsored government aid." Passage of the act was followed by the
>Department of Health and Human Services asking Judge Sifton to lift the
>injunction.
>
>Sifton refused. He found that the statute was harming citizen children of
>alien mothers through the denial of prenatal care and by the denial of
>automatic newborn eligibility under Medicaid -- simply because of the alien
>status of their parents.
>
>Finding the rationales for the denial of prenatal care "highly
>speculative," Sifton said the Department of Health and Human Services had
>failed to meet its burden of showing a "substantial" government purpose for
>the denials, which he said was a violation of the Equal Protection Clause
>of the Fourteenth Amendment.
>
>On the government's appeal, Judge Newman said, "rejecting the contention of
>the plaintiffs, we agree with the Secretary and the District Court that the
>Welfare Reform Act should be read to deny federally sponsored prenatal care
>to unqualified aliens."
>
>Newman said the plaintiffs were making two constitutional challenges to the
>denial of prenatal care, first as applied to unqualified alien pregnant
>women, and second, "as applied to the children of unqualified aliens, who
>automatically become citizens upon birth."
>
>Despite the plaintiffs' argument that the distinction between classes of
>children based on the alienage of their parents should subject the law to a
>heightened level of scrutiny, Newman said the court was applying a less
>stringent "rational basis," scrutiny to the law.
>
>"The Secretary offers three rationales for the denial of prenatal care to
>unqualified alien pregnant mothers: illegal immigration, self-sufficiency,
>and cost savings," Newman said. "The first alone suffices for rational
>basis review."
>
>In analyzing the plaintiffs' constitutional challenge as applied to
>children, the 2nd Circuit first agreed with Sifton that members of the
>plaintiff class had standing "to invoke the third-party rights of their
>children."
>
>Judge Newman then turned to the merits.
>
>"In our view, recognition of a newborn child's constitutional challenge to
>the prior denial of care in utero is foreclosed by Roe v. Wade just as
>clearly as would be a constitutional claim asserted on behalf of a fetus,"
>he said. "If, as Roe v. Wade instructs, a fetus lacks constitutional
>protection to assure it an opportunity to be born, we see no basis for
>according it constitutional protection to assure it enhanced prospects of
>good health after birth."
>
>Newman said, "We recognize, of course, that the child suffers after birth
>from lack of prenatal care in the womb," but even though a cause of action
>can lie for the consequences of a prenatal injury, "a legislative benefit
>does not imply a constitutional requirement."
>
>AUTOMATIC ELIGIBILITY
>
>But the court agreed with Sifton on the denial of automatic eligibility for
>Medicaid from the moment of birth.
>
>"The automatic eligibility is important because it assures immediate care,
>unfettered by paperwork and bureaucratic hurdles, at a critical time of the
>child's life," Newman said. "Because the Welfare Reform Act denies prenatal
>Medicaid assistance to an unqualified alien, she cannot meet Section
>1396a(e)(4)'s requirement of 'receiving medical assistance under a state
>plan on the date of the child's birth,' and her newborn child therefore
>does not qualify for a year of automatic Medicaid coverage under the
>literal terms of Section 1396a(e)(4)."
>
>The government had argued that every child born of a parent can still file
>for Medicaid coverage and show entitlement as a child following birth.
>
>"This argument calls to mind Anatole France's view of the equality that
>forbids rich and poor alike to sleep under bridges," Newman said. "Although
>all alien and citizen mothers are equally prevented from obtaining
>automatic coverage for their children at birth in the absence of their own
>Medicaid coverage during pregnancy, only the children of the plaintiff
>class members have been denied automatic eligibility at birth because their
>mothers were prohibited by the Act's alienage provisions from obtaining
>Medicaid coverage during pregnancy."
>
>Newman said the panel, which included Judge Amalya L. Kearse and Senior
>Judge Ralph K. Winter, was split on whether the claim for automatic
>eligibility should be upheld because of "a favorable statutory
>interpretation or a ruling of unconstitutionality, on either rational basis
>review or heightened scrutiny."
>
>"[B]ut we agree on the result," he said. "We therefore conclude that the
>citizen children of the plaintiff class must be accorded automatic
>eligibility on terms favorable as those available to the children of
>citizen mothers."
>
>Leaving it to Judge Sifton to develop a revised injunction, Newman said "it
>seems likely" that the Department of Health and Human Services would have
>to "adopt some procedure" to allow an alien mother to apply for a Medicaid
>number for her child that is "automatically effective upon the child's birth."
>
>Thomas M. Bondy of Washington, D.C., represented Health and Human Services
>Secretary Tommy G. Thompson. Richard Blum, Helaine M. Barnett and Scott A.
>Rosenberg, of the Legal Aid Society, represented the plaintiffs. Assistant
>Corporation Counsels Gail Rubin and Elizabeth S. Natrella represented the
>city of New York, which intervened in the action. Assistant Attorney
>Generals Mary Fisher Bernet and Marion R. Buchbinder represented New York
>state.
--
art fougner, md
A series of 1000 cases begins with but a single anecdote.
