[55] KALODNER, Circuit Judge (dissenting).

The majority holds that "the plaintiffs are entitled to a declaratory judgment declaring that the Pennsylvania regulations are inconsistent with Title XIX of the Social Security Act, 42 U.S.C.A. § 1396 et seq.; during the first and second trimesters of pregnancy," and further concludes that it is unnecessary to reach the plaintiffs' constitutional arguments. (emphasis supplied).

I dissent from the majority's holding that "the Pennsylvania regulations are inconsistent with * * * the Social Security Act." I disagree, too, with its conclusion that it is unnecessary to reach the plaintiffs' constitutional arguments.

I would affirm the holding of the three-judge court that the "Pennsylvania Regulations do not conflict with Title XIX of the Social Security Act." (emphasis supplied).

I would also reverse the holding of the court below that "the Regulations and/or Procedures of the Pennsylvania Medical Assistance Program are unconstitutional because they are in violation of the Equal Protection Clause since they create an unlawful distinction between individual women who choose to carry their pregnancies to birth, and indigent women who choose to terminate their pregnancies by abortion."

I would, however, enjoin enforcement of the Regulations on the ground that they are being administered in violation of the Equal Protection Clause of the Fourteenth Amendment in that they are not enforced against welfare recipients who threaten suit when they are denied reimbursement for non-therapeutic abortions, and enforced only against those who do not threaten suit. It is settled that State administrative procedures which are per se valid and constitutional may nevertheless be enjoined when they are unconstitutionally applied.

The views expressed will be discussed seriatim as follows:

I. THE PENNSYLVANIA REGULATIONS' CONSISTENCY WITH TITLE XIX.

This must be said in preface:

First, two other Circuit Courts which have spoken to the question have expressly refused to subscribe to the view now espoused by the majority. Rose v. Ferguson, 515 F.2d 279 (6th Cir. 1975); Doe v. Rose, 499 F.2d 1112 (10th Cir. 1974).

Second, the majority's holding of inconsistency is nourished only by a single district court decision, Roe v. Norton, 380 F. Supp. 726 (D.Conn. 1974).

Third, our brother Weis, a member of the three-judge court below, specifically expressed his concurrence with its holding that the Regulations are not inconsistent with Title XIX, albeit he dissented from its holding that the Regulations are unconstitutional.

Fourth, the specific question " [w]hether the Social Security Act requires a federally-funded state medicaid program to pay for abortions that are not medically indicated," was answered in the negative by the Solicitor General of the United States in a "memorandum for the United States as Amicus Curiae." (emphasis supplied).

Fifth, The Medical Assistance Services Administration in the Social and Rehabilitation Service of the Department of Health, Education, and Welfare, which administers the Medicaid aspect of the Social Security Act, has made it clear in a statement on its "position" on abortion, that a state participating in the Medicaid program has the option of funding abortions, and, if it does, "the Federal Government shares the costs with the State."

The points outlined will be more fully developed after the following discussion of the critical provisions of Title XIX and the Regulations.

Title XIX of the Social Security Act, popularly known as Medicaid, and the federal regulations promulgated thereunder, establish a comprehensive system of health care for the needy. In the spirit of "cooperative federalism," Congress annually appropriates funds to enable each state, "as far as practicable under the conditions in such State, to furnish . . . medical assistance" to designated families and individuals "whose income and resources are insufficient to meet the costs of necessary medical services." 42 U.S.C. § 1396. (emphasis supplied).

A state is not required to participate in the Medicaid Program, but if it chooses to become a participant, it must submit a plan for medical assistance to the Department of Health, Education, and Welfare ("HEW") for approval, which is conditioned upon the plan comporting with the provisions of Title XIX. See 42 U.S.C. §§ 1396, 1396a(b). Thereafter, operation of the program is under state direction with continuing eligibility for federal grants subject to the state's compliance with the originally approved plan and federal regulations. See 42 U.S.C. § 1396c; 45 C.F.R. §§ 246-280.

As dictated by the federal statute and regulations, a state's Medicaid program must provide medical assistance to the "categorically needy," as spelled out by the majority. See 42 U.S.C. § 1396a(a)(10)(A).

A state may decide to limit coverage to the "categorically needy," or it may decide to include within the scope of its Medicaid program other groups or individuals in need of "necessary medical services."

A state whose medical assistance program extends beyond the "categorically needy," has the option of providing the five services made mandatory as to those in the "categorically needy" class, or selecting any seven of the services listed in clauses (1) through (16) of § 1396d(a). See 42 U.S.C. § 1396a(a)(13).

The five services made mandatory as to the "categorically needy" (included in Pennsylvania's Medicaid program) are:

"(1) inpatient hospital services (other than services in an institution for tuberculosis or mental diseases);

"(2) outpatient hospital services;

"(3) other laboratory and X-ray services;

"(4)(A) skilled nursing facility services (other than services in an institution for tuberculosis or mental diseases) for individuals 21 years of age or older (B) effective July 1, 1969, such early and periodic screening and diagnosis of individuals who are eligible under the plan and are under the age of 21 to ascertain their physical or mental defects, and such health care, treatment, and other measures to correct or ameliorate defects and chronic conditions discovered thereby, as may be provided in regulations of the Secretary; and (C) family planning services and supplies furnished (directly or under arrangements with others) to individuals of child-bearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies;

"(5) physicians' services furnished by a physician . . . whether furnished in the office, the patient's home, a hospital, or a skilled nursing facility, or elsewhere," § 1396d(a).

A state is required to include in its Medicaid plan "reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan which . . . are consistent with the objectives of [Title XIX] . . . ." 42 U.S.C. § 1396a(a)(17). A state may properly limit the coverage of its Medicaid program to the costs of "necessary medical services." A state plan for medical assistance must provide that a method of "utilization review" be established for each item of care or services listed in 42 U.S.C. § 1396d(a) so as "to safeguard against unnecessary utilization of such care and services . . . ." 42 U.S.C. § 1396a(a)(30); 45 C.F.R. § 250.20(a). The federal regulations specifically authorize "[a]ppropriate limits . . . placed on services based on such criteria as medical necessity or those contained in utilization or medical review procedures." 45 C.F.R. § 249.10(a)(5)(i).

Furthermore, any medical services made available to a "categorically needy" person must not be less in "amount, duration, or scope" than that provided other groups or individuals. Services made available to a group other than the "categorically needy" must be equal in "amount, duration, and scope" for all individuals within the group, 42 U.S.C. § 1396a(a)(10), but may be less than or differ from those benefits provided the "categorically needy."

In summary outline, Title XIX provides for a federal-state funded program which permits each state to decide whether it will participate and what services it will provide, and to whom, subject to the requirement that certain welfare recipients must be included and certain items of basic medical care must be furnished.

The Pennsylvania Medical Assistance Program ("PMAP") was designed to comport with the requirements of Title XIX. It provides, inter alia, for reimbursement for medical services to the "categorically needy," and the "medically needy," affording to the latter the five services made mandatory as to the "categorically needy," earlier here spelled out.

Regulations pertaining to the administration of PMAP provide for reimbursement of costs of an abortion only where "there is documented medical evidence," submitted by the attending physician and two other physicians, that "continuance of the pregnancy may threaten the health or life of the mother," or, that "the infant may be born with incapacitating physical deformity or mental deficiency," or, that "a continuance of pregnancy resulting from legally established statutory or forcible rape or incest, may constitute a threat to the mental or physical health of a patient," and "the procedure is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals."

The recited provisions of the Regulations, as the majority has well said, "in effect . . . define a compensable 'therapeutic' abortion, and exclude payment for non-therapeutic, or 'elective' abortions."

The plaintiff-welfare recipients contended below that the cited Regulations contravene Title XIX, because, in their view, an abortion, whether it be therapeutic or non-therapeutic, is a "necessary medical service" within the meaning of the Title and the purview of its categories of "physicians' services"; "inpatient and outpatient hospital services", and "family services."

In disposing of these contentions, the court below said:

" Congress was silent with respect to specific authorization of medical assistance for abortions. Pennsylvania standards must be scrutinized without curtailment by Congressional action and the State Regulations and/or Procedures must be given great latitude in providing for the administration of the Program. We, therefore, feel compelled to find Pennsylvania's Regulations do not conflict with Title XIX of the Social Security Act." (emphasis supplied).

The foregoing holding was prefaced by this significant statement:

"But, even if we assume, as do the Plaintiffs, that abortion payments are clearly authorized under Title XIX of the Social Security Act, nevertheless, Congress has given the States great latitude in establishing standards for the administration of the various plans, under the doctrine of a ' scheme of cooperative federalism.'"

The distilled essence of the holding below is that Title XIX does not, per se, require a Medicaid state to pay for a non-therapeutic abortion, and accordingly the Pennsylvania Regulations denying payment for such an abortion does not conflict with Title XIX.

The distilled essence of the majority's holding is that Title XIX, per se, requires a Medicaid state to pay for a nontherapeutic abortion "once the state has decided to finance full-term delivery and therapeutic abortion as methods for the treatment of pregnancy."

The Achilles' heel of the majority's holding is its non sequitur application of recent Supreme Court decisions, in which no issue as to the sweep of Title XIX was involved, and the critical question presented related only to constitutional challenges to state statutes making performance of a non-therapeutic abortion a crime.

The majority's application of these Supreme Court decisions is manifested by its following statement:

"Since the decisions of the Supreme Court have forced the states to include elective abortion in the legal practice of medicine through the second trimester of pregnancy, we also hold that the statute [Title XIX] requires Pennsylvania to fund abortions through the end of the second trimester." (emphasis supplied).

It need only be said on the score of the foregoing, that the 1973 Supreme Court decisions, which make legal a physician's performance of an elective abortion, cannot be utilized to construe the earlier enacted Title XIX as requiring a Medicaid state to pay the expenses of such an abortion, albeit these decisions are applicable to the presented issue of constitutionality of the Pennsylvania Regulations which has been avoided by the majority.

As earlier noted, two other circuits which have spoken to the Title XIX issue have subscribed to the holding of the court below and expressly refused to subscribe to the view espoused by the majority.

In Doe v. Rose, 499 F.2d 1112 (10th Cir. 1974), constitutional and statutory challenges were presented to the Utah Department of Social Services' "informal policy" concerning abortions.

The "informal policy" provided that a pregnant woman was not entitled to an abortion at the expense of Utah's Medicaid program without prior approval as a "therapeutic abortion" by the Executive Director of the Department. The "informal policy" defined a "therapeutic abortion" as one necessary to save the life of the expectant mother or to prevent serious and permanent impairment to her physical health, and none other.

The district court granted the plaintiffs' request for an injunction restraining enforcement of the "informal policy" on both statutory and constitutional grounds. The Tenth Circuit, on review, affirmed on the constitutional grounds only, declaring that it preferred to do so for these reasons:

"At the outset, so far as we are advised the applicable federal statutes regarding Medicaid make no mention, as such, of abortions. Hence, we lack specific guidance as to whether Congress intended that abortions be covered by Medicaid and, if so, more critically, which abortions were to be covered by medicaid benefits.

"The implementing state statutes of Utah, as well as the latter's state plan, submitted to and approved by the federal authorities, also make no mention, as such, of abortions. Hence, this is not an instance where the administrative policy under attack is mandated by either state or federal statute. By the same token, in our view there is nothing in either the federal or state statutes which specifically bars the policy here followed by Rose. In this regard, we are mindful of the Supreme Court's preference for statutory, as opposed to constitutional, resolution of welfare controversies. See Wyman v. Rothstein, 398 U.S. 275, 90 S.Ct. 1582, 26 L.Ed.2d 218 (1970). Nevertheless, in light of the applicable statutes' complete silence on the abortion question, we prefer to dispose of the present appeal on constitutional grounds, rather than by any strained effort to show that the policy in question is, in effect, though not in so many words, prohibited by either federal or state statute. . . ." 499 F.2d at 1114-1115. (emphasis supplied).

The Sixth Circuit, in Roe v. Ferguson, 515 F.2d 279 (6th Cir. 1975), reversed the district court's holding that Title XIX was contravened by administrative rulings by the Auditor of the State of Ohio and an Ohio statute which prohibited reimbursement for elective abortions to state Medicaid recipients.

In doing so, the Court expressly declared its accord with Doe v. Rose, supra, and the holding of the court below in the instant case, on the Title XIX issue, in the following statement:

" We are in accord with the decisions which have found no conflict between state restrictions of Medicaid payments to elective abortions and the provisions of the Social Security Act. There is no indication that Congress intended to require the furnishing of abortion services not required for the preservation of the health of the woman at a time when the performance of such abortions was illegal in most jurisdictions. In view of the disfavor shown toward abortions in other legislation, we are reluctant to infer that Congress intended to include required coverage for such controversial services without even mentioning the subject. When Congress passed the Family Planning Services and Population Research Act of 1970, 42 U.S.C. §§ 300a et seq. providing funds to states opting to participate in creating comprehensive programs of family planning services, abortion was specifically excluded as a means of family planning to be recognized under the Act. 42 U.S.C. § 300a-6.

"In establishing the Legal Services Corporation system, Congress again provided that no funds of the Corporation could be used for legal assistance for those seeking to procure a nontherapeutic abortion. 42 U.S.C. § 2996f(b)(8).

"In view of this evidence of the Congressional attitude toward abortion as a family planning technique or as an acceptable medical service in general, it is difficult to construe the silence of Congress in Title XIX as an endorsement of the view that nontherapeutic abortions are included in the 'necessary medical services' required to be furnished by a state participating in Medicaid. This is not to say that Congress may constitutionally exclude such abortion services from coverage in the Medicaid program. In the absence of a legislative history indicating a contrary position, however, we cannot say that the statute itself prohibits such an exclusion." 515 F.2d at 283 (emphasis supplied).

As earlier stated, the majority's holding is nourished only by a single district court case — Roe v. Norton, supra. There, the narrow issue presented was whether Title XIX prohibited "federal reimbursement for the expenses of an [elective] abortion," and thus compelled a Medicaid state to deny reimbursement for such an abortion. The issue arose by reason of the adoption of a regulation by the Connecticut Welfare Department banning reimbursement for non-therapeutic abortions because of its belief that it was compelled to do so by Title XIX. The district court ruled that "Title XIX must be construed to permit payment for elective abortions." In doing so, the district court further held that the Title "must be construed . . . to prohibit state regulations that impair a woman's exercise of her right, in consultation only with her physician, to have an [elective] abortion."

It must immediately be noted that the stated further holding is dictum under the prevailing circumstances.

Coming now to the majority's disregard of the views expressed by the Solicitor General of the United States, and the federal agency which administers the Medicaid program, on the score of the reach of Title XIX, in its holding that "the Pennsylvania Regulations are inconsistent with Title XIX":

As already stated, the Solicitor General in his Amicus Curiae Memorandum specifically opined that "the Social Security Act does not require a federally-funded state medicaid program to pay for abortions that are not medically indicated," and, the federal agency which administers the Medicaid program, in a statement on its "position" on abortion, made it clear that a Medicaid state has the option of funding abortions, and if it does, "the federal Government shares the cost with the State."

A more recent statement made by the Social and Rehabilitation Service, under which the Medical Services Administration operates, further reflects the Government's view that Title XIX does not exclude non-therapeutic abortions.

The statement declares in relevant part that "under Title XIX, federal financial participation is available for any abortions for which the state welfare agency provides." (emphasis supplied).

The foregoing evidences the federal Government's view that Title XIX neither prohibits, nor requires a Medicaid state's payment for non-therapeutic abortions, and that such states are free to either provide or deny at their option medical assistance for such an abortion.

It is undisputed that the Government has pursued a policy of sharing in a state's funding of non-therapeutic abortions, pursuant to its stated position.

The majority's disregard of the stated views of the federal agencies concerned with administration of Title XIX, contravenes the settled rule that construction of a statute by an agency charged with its administration should be accorded great deference, absent compelling indications that it is clearly wrong.

This, too, must be said:

It cannot be gainsaid that Title XIX does not make any reference to abortions — therapeutic or elective — and that its legislative history is similarly silent on that score.

In recognition of that fact, the majority concededly reached its holding as to the force of Title XIX with respect to abortions — therapeutic and elective — by "interpreting" Title XIX to support its conclusion. In doing so it said:

"It is impossible to believe that in enacting Title XIX Congress intended to freeze the medical services available to recipients as those which were legal in 1965."

The quoted statement clearly falls into the category of argument criticized as a "departure from ordinary principles of statutory interpretation," in the recent case of Burns v. Alcala, 420 U.S. 575, 95 S.Ct. 1180, 43 L.Ed.2d 469 (1975).

The same is true with respect to this further conclusory statement of the majority:

"We therefore conclude that once the state has decided to finance full-term delivery and therapeutic abortion as methods for treatment of pregnancy, it cannot decline to finance nontherapeutic abortions without violating the requirements of Title XIX." (emphasis supplied)

It may be noted at this juncture that the stated construction of Title XIX is sharply at odds with that of the Solicitor General in his Amicus Curiae Memorandum.

In spelling out his views as to "the extent of the 'medical assistance' which must be provided" under Title XIX, the Solicitor General said:

"Furthermore, a participating state need not pay for every kind of medical treatment encompassed within those five categories. The state is required only to set 'reasonable standards . . for determining . . . the extent of medical assistance . . . consistent with the objectives of [Title XIX]' 42 U.S.C. § 1396a(a)(17)," and, "[w]e disagree" with the contention "that the denial of assistance with respect to non-medically indicated abortions is not 'reasonable' under 42 U.S.C. § 1396a(a)(17)."

I agree with the Solicitor General's rejection of the contention that the denial of assistance with respect to nonmedically indicated abortions is not reasonable under Title XIX.

The Title's use of the phrase "amount, duration and scope of services" in its various provisions, indicates that "Congress anticipated that states would limit the types of services they covered . . ."

In summary, I would for all the reasons stated in the foregoing discussion, affirm the holding of the court below that the " Pennsylvania Regulations do not conflict with Title XIX of the Social Security Act." (Emphasis supplied).

II. THE CONSTITUTIONAL ISSUE.

The court below held that the Pennsylvania Regulations "are unconstitutional because they are in violation of the Equal Protection Clause since they create an unlawful distinction between individual women who choose to carry their pregnancies to birth, and indigent women who choose to terminate their pregnancies by abortion."

It premised its holding on these grounds:

"Under traditional Equal Protection standards, once the State chooses to pay for medical services rendered in connection with the pregnancies of some indigent women, it cannot refuse to pay for the medical services rendered in connection with the pregnancies of other indigent women electing abortion, unless the disparate treatment supports a legitimate State interest," and, "the State's decision to limit coverage to 'medically indicated' abortions, as arbitrarily determined by it, is a limitation which promotes no valid State interest."

I would reverse the unconstitutionality holding of the court below, albeit the Eighth and Tenth Circuits and four district courts have held unconstitutional regulations and statutes similar to the Pennsylvania Regulations, and no court has held to the contrary.

I agree with the dissenting view below that "there is no constitutional requirement that the State must finance exercise of a 'fundamental' right, nor does a classification which distinguishes between medically necessary and non-necessary abortions offend the Equal Protection Clause."

The sum of the holding of the court below is that since Pennsylvania's Medicaid program pays for medical services incident to full-term delivery, and/or therapeutic abortions, it violates the Equal Protection Clause when it denies payment for an elective abortion.

The holding reflects the court's subscription to the plaintiffs' contention that an elective abortion is one way of handling a pregnancy and accordingly such an abortion falls within the category of "necessary medical care" extended by Pennsylvania to pregnant eligibles. It also reflects rejection of Pennsylvania's contentions that its Medicaid program provides only for extension of "necessary medical care," and its payment for a full-term delivery and/or therapeutic abortion properly fall within the range of reasonably-defined "necessary medical care" for the condition of pregnancy, and that a non-therapeutic (elective) abortion does not do so.

Discussion of the constitutional issue must be prefaced by these observations with respect to the present state of the law as indicated by Supreme Court decisions:

A woman has a constitutional right to terminate her pregnancy during its first two trimesters. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

The Supreme Court did not hold in these cases that a state is under a duty to finance the exercise of the constitutional right to an elective abortion, nor has it ever held that medical care in general is a fundamental right, albeit it has recognized that "medical care is . . . 'a basic necessity of life' to an indigent . . . ."

The Supreme Court has declined to designate welfare in general as a fundamental right, although it has recognized the critical importance of welfare as providing "the very means by which to live."

The cornerstone of the plaintiffs' contention is that the Regulations, in the absence of a compelling state interest, violate the Equal Protection Clause in that they discriminatorily divide pregnant eligibles into two classes — one which chooses to carry pregnancy to full term delivery, and another which elects to terminate pregnancy for non-therapeutic reasons.

The fallacy of the stated contention is that it disregards the fact that Pennsylvania in its medicaid program has committed itself to extend medical care to its eligibles only where "necessary medical care" is required. The only classification made by the Regulations is between necessary medical care and non-necessary medical care. Such a classification does not call into play the "compelling state interest" test. It is subject only to the "reasonable basis", otherwise stated, "rational basis" test, spelled out in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). There, the Court held that a state regulation which reduced family welfare benefits did not violate the Equal Protection Clause. In doing so it said in relevant part at page 485, 90 S.Ct. at page 1161:

"In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 [31 S.Ct. 337, 55 L.Ed. 369]. 'The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.' Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 [33 S.Ct. 441, 57 L.Ed. 730]." (emphasis supplied).

I am of the opinion that the classification between "necessary medical care" and "non-necessary medical care" survives the application of the "reasonable basis" and/or "rational basis" tests.

It cannot be gainsaid that full-term delivery and/or therapeutic abortions reasonably and rationally fall within the category of "necessary medical care" for a pregnant woman, and that an "elective" or non-therapeutic abortion does not do so.

This, too, must be said:

The holdings of unconstitutionality in the Eighth and Tenth Circuit cases, cited in note 26, rested in large part on the analysis of the three-judge district court in Klein v. Nassau County Medical Center in holding that providing financial assistance to pregnant mothers who carry their babies to full term and delivery while denying financial assistance to mothers who choose instead an "elective" abortion denied the latter mothers the equal protection of the laws guaranteed by the Fourteenth Amendment. That analysis, in only slightly different terms is also advanced before this court by the plaintiffs. The persuasiveness of the analysis depends upon a willingness to accept the posture of the mother as one in which she is required to "resign her freedom of choice" not to bear the fetus term.

There is both a verbal and an emotional appeal about this argument. But the legal and economic fact as well is not precisely stated in it. The compulsion to "resign her freedom of choice" derives not from the state policy but from the mother's poverty. The equal protection clause as sought to be used here would require this court to determine that the state, having undertaken to relieve some of the burdens of poverty is required to remedy all of poverty's burdens. The state, with some support from the medical profession, in reaching a determination of what is medically necessary, and unquestionably with support based on the prevailing mores of the majority of our society, has decided to remedy that problem of poverty which is represented by the costs of medical care during pregnancy and the delivery of the baby. From society's point of view, there are a variety of arguments for the wisdom of such public expenditure, most based upon the desirability of preserving the life and well being of the expectant mother and of assuring healthy babies. The state, thus far, has not concluded that avoidance of unwanted babies is as important as avoidance of unhealthy babies. This may well be an improper determination of values. A court may regard the two objectives as of equal magnitude and conclude that the state is quite wrong. It would be an error, however, for courts to displace the value judgment of the legislature with the value judgment of the court absent a finding that the value judgment of the legislature is proscribed by the Constitution.

There are probably no programs of the state or federal government affording financial assistance that do not contain within them, sometimes unarticulated, norms of conduct that are prerequisite to receiving the assistance. Surely the unavailability of unemployment compensation to one who quits his or her job while affording it to one who has labored to retain it but has been laid off serves as an inducement to refrain from quitting. For the well-off person in our society, with some independent reserves, that inducement is irrelevant, and the individual is free to quit. For the low-income employee, that policy may well prevent the person from refusing to continue in employment that has become, perhaps, personally unbearable.

The examples could be multiplied. In their determinations of appropriate contexts of financial aid the federal and state legislatures have reflected societal prejudices about human conduct. These differentially affect the poor, who are dependent upon governmental assistance, and the more affluent, who are not. To require the states to forego this kind of policymaking would be to require the states to choose between leaving the pain of poverty unabated or to provide assistance neutral in its assertion of values. Not only would this seem to go well beyond present decisions of the Supreme Court of the United States in interpreting the equal protection clause but it would, if embraced, likely place financial assistance to the poor in many contexts beyond what is politically feasible, thus leaving all the poor worse off than under the present value distinctions made.

Only in the areas in which the poor are faced with governmentally imposed financial burdens — divorce court fees, appeal transcript fees — has the Supreme Court found that legislatures are constitutionally bound to relieve the poor of the burdens of their poverty. The instant case might be such a case, for example, if the Pennsylvania legislature had established a minimum doctor's charge, or even more clearly, a state license fee for an elective abortion. But in the instant case, the burden carried by the indigent mother who desires, an elective abortion has not been made greater by the state. It has simply not been eased, whereas the state has eased the burden of the costs of pregnancy for the mother who wishes to carry the fetus until term. That kind of distinction in affordance of financial assistance has not till now and should not be subject to judicial supervision under the aegis of the Fourteenth Amendment.

The Equal Protection Clause does not provide cure-all panaceas, or Utopian solution, with respect to all the problems incident to the condition of poverty, e.g. inability of an indigent pregnant woman to privately finance her non-medically necessary (elective) abortion. Otherwise stated, the Equal Protection Clause cannot be construed to afford a guarantee against all the incidents of the condition of poverty.

III. THE DISCRIMINATORY ADMINISTRATION OF THE REGULATIONS.

As earlier stated, I would enjoin enforcement of the Regulations on the ground that they are being administered in violation of the Equal Protection Clause in that they are not enforced against indigents who threaten suit when they are denied funding of an elective abortion, and they are enforced against those who do not threaten suit.

It has long been settled that State administrative procedures which are per se valid and constitutional may, nevertheless, be enjoined when they are unconstitutionally applied. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). More recently, the Supreme Court has stressed that "a law non-discriminatory on its face may be grossly discriminatory in its operation." Williams v. Illinois, 399 U.S. 235, 242, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586 (1970); Griffin v. Illinois, 351 U.S. 12, 17, n. 11, 76 S.Ct. 585, 100 L.Ed. 891 (1956).

The Pennsylvania Department of Justice concedes that "it entered into a policy of consenting to the granting of the requested relief [funding of an elective abortion] on an individual basis when . . . litigation was threatened," and it cites in corroboration a Stipulation detailing its policy filed in another action.

In making that concession, the Justice Department urges that "[t]his was not a policy of the Pennsylvania Department of Welfare in any way modifying the uniform application of the Pennsylvania Medicaid Regulations. This was, and still is, merely a policy of the lawyers for the defendant in pending litigation . . ."

The fact that Pennsylvania pays for an elective abortion when suit is threatened or pending establishes discriminatory administration of its Regulations. It is utterly irrelevant that payment for an elective abortion is made at the instance of "the lawyers for the defendant" and not by way "of the policy of the Department of the Pennsylvania Department of Welfare."

"The play's the thing."

The sum total of the existing situation with respect to the Regulations is that they are enforced as to some pregnant indigents seeking elective abortions and denied as to others in the same category.

Standing alone, and independently so, the stated circumstances constitute violation of the Equal Protection Clause of the Fourteenth Amendment.

I would for this reason remand the cause to the court below with directions to enjoin enforcement of the Pennsylvania Regulations in light of their Administration in violation of the Equal Protection Clause of the Fourteenth Amendment.

Judge Gibbons joins in this dissenting opinion except as to Part III.

[148] ADAMS, Circuit Judge (dissenting):

I respectfully dissent from the majority. In my judgment, the Pennsylvania regulations are not incompatible with the scheme of medical aid to indigents envisaged by Congress in Title XIX of the Social Security Act. In addition, I do not believe that the Pennsylvania schedule for reimbursements, that includes only medically indicated abortions, violates the Constitution.

These conclusions are grounded on reasons set forth in the dissenting opinion of Judge Kalodner here, and that of Judge Weis in the district court, and are based also on the various authorities referred to in those opinions.