AGO 80-001.

• Case Date: April 15, 1980
• Court: North Dakota

North Dakota Attorney General Opinions 1980. AGO 80-001. LETTER OPINION OPINION 80-1April 15, 1980 (OPINION) Mr. T. N. TangedahlExecutive Director Social Service Board of North Dakota State Capitol Bismarck, ND 58505Dear Mr. Tangedahl: This opinion is in response to your request of March 5, 1980, in which you state the following:

In the 1965 Special Session, the North Dakota Legislature enacted what is now codified as North Dakota Century Code chapter 50-24.1, Medical Assistance for Needy Persons. That chapter was written and designed for the purpose of qualifying the state to receive federal funds under Title XIX of the Social Security Act, otherwise known as the Medicaid program. Since the effective date of the 1965 Act North Dakota has been a participant in the Medicaid program, and has received federal funding by virtue of its having a state plan which conforms to the requirements set forth at 42 U.S.C. Section 1396a. (a).

On February 25, 1980, and under date of February 20, 1980, the Social Service Board of North Dakota received a letter from Mr. Francis T. Ishida, Regional Administrator, Department of Health, Education and Welfare, concerning a telephone call of February 19, 1980, and detailing the following information:

On January 15, 1980, the United States District Court for the Eastern District of New York ruled in McRae v. Secretary, HEW, (Civ. No. 76 C 1804) and New York City Health and Hospitals Corporation v. Secretary, HEW, (Civ. No. 76 C 1805) that provisions contained in HEW's appropriations acts since FY 1977 that limit the use of Federal funds for abortions are unconstitutional. Those provisions are commonly referred to as the Hyde Amendment. Specifically, the District Court's order stated that all versions of the Hyde Amendment are "unconstitutional as applied to abortions that are necessary in the professional judgment of the pregnant woman's attending physician exercised in the light of all factors, physical, emotional, psychological, familial, and the woman's age, relevant to the health-related well-being of the pregnant woman." The judgment ordered the Department to: "A. Cease to give effect to (the Hyde Amendments) so far as they forbid the making of Medicaid payments for abortions performed by qualified Medicaid providers in cases in which the abortions are necessary in the professional judgment of the pregnant woman's attending physician; B.

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