United States Court of Appeals,

                           Fifth Circuit.

                            No. 94-30445.

    HOPE MEDICAL GROUP FOR WOMEN, on behalf of itself and the
Medicaid-eligible women of the State of Louisiana to whom it
provides health care, and Ifeanyi Charles Okpalobi, M.D., on behalf
of himself and his Medicaid-eligible patients seeking abortions, et
al., Plaintiffs-Appellees,

                                    v.

   Edwin EDWARDS, Governor of the State of Louisiana, et al.,
Defendants-Appellants.

                           Sept. 11, 1995.

Appeal from the United States District Court for the Eastern
District of Louisiana.

Before WISDOM, GARWOOD and DAVIS, Circuit Judges.

     W. EUGENE DAVIS, Circuit Judge:

     This appeal centers on the complex issue of public funding for

abortions.   The plaintiffs, Hope Medical Group for Women and Dr.

Ifeanyi Okpalobi, filed suit in federal district court on behalf of

their Medicaid-eligible patients seeking to enjoin Louisiana from

enforcing a state statute prohibiting the state's Medicaid program

from funding   abortions   except    in   cases   where   an   abortion   is

necessary to save the life of the mother.            The district court

issued an injunction prohibiting the state from enforcing the

statute in so far as the statute prohibits funding for abortions to

terminate pregnancies resulting from rape or incest.             The state

subsequently appealed. For the reasons explained below, we affirm.

                                    I.

     The plaintiffs' suit focusses on LA-R.S. 40:1299.34.5, which


                                    1
prohibits     Louisiana's   state   Medicaid       program   from    offering

abortions except when necessary to save the life of the mother.

They contend that this restriction violates Title XIX of the Social

Security Act and the 1994 version of the so-called Hyde Amendment.

Title XIX establishes the Medicaid program, a jointly funded

federal-state     program   designed       to   provide   medical   care   for

qualified individuals "whose income and resources are insufficient

to meet the costs of necessary medical services."               42 U.S.C. §

1396.      States choosing to participate in the program receive

federal funds appropriated under Title XIX and use these funds to

finance the health care of state residents who meet the eligibility

criteria set forth in the Act.

         Although a state's participation in the Medicaid program is

voluntary, participating states must abide by the requirements

imposed by Title XIX and regulations issued by the Health Care

Finance Administration (the "HCFA"), which is the federal agency

created by the Act to administer the Medicaid program.              See Wilder

v. Virginia Hospital Ass'n, 

, 502, 

,

2513-14, 

(1990).           Title XIX enumerates eight broad

categories of medical services that state programs must provide to

individuals classified as "categorically needy":1

(1) inpatient and outpatient hospital services;

(2) other laboratory or X-ray services;

(3) nursing facility services;

     1
      42 U.S.C. § 1396a(a)(10) sets forth the eligibility
criteria for determining whether an individual is "categorically
needy."

                                       2
(4) early and periodic screening, diagnostic and treatment services
     for recipients under the age of 21;

(5) family planning services and supplies;

(6) physicians' services and services furnished by a dentist;

(7) services furnished by a nurse-midwife;

(8) services furnished by a certified pediatric nurse practitioner
     or certified family nurse practitioner.

42 U.S.C. § 1396d(a).

      The obligation of participating states to provide abortion

services    under   Title    XIX   are   circumscribed,    however,   by   the

so-called Hyde Amendment.          In 1976, congress enacted the first

version of the Hyde Amendment as a rider to an appropriations bill.

The Hyde Amendment restricted the use of federal funds for abortion

services under Title XIX. Although the specific language and scope

of the Hyde Amendment changed over the years, the version in force

until 1981 essentially limited funding for abortions to three

cases:     (1) where the mother's life was in danger, (2) where the

abortion was to terminate a pregnancy resulting from rape or

incest, and (3) where "severe and long-lasting physical health

damage to the mother would result if the pregnancy were carried to

term."   See Pub.L. 95-205, 91 Stat. 1460 (Dec. 9, 1977).

      From 1981 until 1993, Congress enacted an even stricter

version of the Hyde Amendment which prohibited federal funds for

abortions "except where the life of the mother would be endangered

if the fetus were carried to term."            See eg. Pub.L. No. 101-166,

103   Stat.   1159,   1177    (1989).        Louisiana's   abortion   funding

restriction mirrors the 1981-1993 version of the Hyde Amendment.


                                         3
The Louisiana provision provides that:

     Notwithstanding any other provision of law to the contrary, no
     public funds, made available to any institution, board,
     commission, department, agency, official, or employee of the
     state of Louisiana, or of any local political subdivision
     thereof, whether such funds are made available by the
     government of the United States, the state of Louisiana, or of
     a local governmental subdivision, or from any other public
     source shall be used in any way for, to assist in, or to
     provide facilities for an abortion, except when the abortion
     is medically necessary to prevent the death of the mother.

LA-R.S. 40:1299.34.5 (emphasis added).

     In 1993, Congress enacted a new version of the Hyde Amendment

which, for the first time since 1981, permitted federal funds to be

used for abortions to terminate pregnancies resulting from rape or

incest.   Pub.L. No. 103-112, 107 Stat. 1082 (1993).                     The 1994

version of the Hyde Amendment thus expanded the availability of

funds for abortions under Title XIX.               However, because Louisiana

retained its restrictive abortion funding ban, the state's Medicaid

program could not fund abortions in rape and incest cases even

though federal funds were available under the 1994 version of the

Hyde Amendment.      The plaintiffs subsequently filed the present

suit,   arguing    that     Louisiana's      abortion      funding   restriction

violates Title XIX and the 1994 Hyde Amendment.

     After a hearing, the district court ruled in favor of the

plaintiffs   and     enjoined    the       state    from     enforcing    LA-R.S.

40:1299.34.5's ban on funds for abortions in rape and incest cases

as long as the state receives federal funds under Title XIX.                  The

court held that the 1994 Hyde Amendment substantively modified

states' obligations under Title XIX and that Congress' intent in

enacting the      Hyde    Amendment   "was    to    ensure    that   states   fund

                                       4
abortions in those narrow circumstances where federal funds were

available under the Hyde Amendments."             Hope Medical Group v.

Edwards, 

, 1152 (E.D.La.1994). The court concluded

that LA-R.S. 40:1299.34.5 conflicts with Title XIX "as amended" by

the    Hyde   Amendment   because    it    does   not   "provide   Medicaid

reimbursement to eligible women who have abortions terminating

pregnancies resulting from rape or incest."             

  The

state timely appealed from the court's judgment enjoining the state

from    enforcing   its   abortion    funding     restrictions.      Before

addressing the merits of the district court's decision, however, we

must first address whether a recent amendment to Louisiana's

abortion funding statute moots this appeal.

                                     II.

       During a special legislative session following the district

court's order enjoining enforcement of LA-R.S. 40:1299.34.5, the

Louisiana legislature amended the provision. The amended provision

permits public funds for abortions in cases of rape and incest as

well as in cases where the abortion is needed to save the life of

the mother.     See LA-R.S. 40:1299.34.5(B).        Although the parties'

briefs on appeal do not address whether the amendment moots this

appeal, one of the plaintiffs, Dr. Okpalobi, raised the mootness

issue in a motion to dismiss the appeal and again during oral

argument.     Because the presence of a live case or controversy is a

threshold jurisdictional requirement, we must address it even if it

is not raised by the parties.

        A case is moot for Article III purposes if the issues


                                      5
presented    are    no     longer   live    or   the   parties    lack    a   legally

cognizable interest in the outcome.               See Campanioni v. Barr, 

(5th Cir.1992).            An exception to the mootness doctrine

exists in cases where a controversy is likely to recur, but may

evade review.       See Henschen v. City of Houston, 

(5th

Cir.1992).         After    reviewing      the   amended   version       of   LA-R.S.

40:1299.34.5, we conclude that the present case falls within this

exception to the mootness doctrine.

         The amended version of the funding restriction provides that

public funding for abortions in rape and incest cases will only be

available so long as "a decision or order of a court of competent

jurisdiction" declares that the original version of the statute

violates Title XIX. LA-R.S. 40:1299.34.5. The amended restriction

thus allows abortion funding in rape and incest cases only if a

court order continues to compel the state to do so.                       

of the court order, the provision's exception for rape

and incest cases becomes inapplicable and the original restriction

prohibiting publicly-funded abortions except in cases where the

mother's life is in danger becomes effective.                    Id.2    The amended

provision further provides that state officials "shall vigorously

and expeditiously pursue judicial remedies seeking to obtain ...

reversal" of any order compelling the state to fund abortions in

     2
      The amendment divides the statutory restriction into two
parts. Part A contains the original restriction prohibiting
abortions except where the mother's life is in danger. Part B
permits abortions in rape and incest cases. Part B of the
statute is triggered only upon the entry of a court order holding
Part A invalid. Once the court order is dissolved, Part B
becomes ineffective.

                                           6
rape and incest cases.      See LA-R.S. 40:1299.34.5.

     The language of the revised statute clearly indicates that the

Louisiana   legislature     amended       the   state's   abortion   funding

restriction so that it could bring its Medicaid program into

compliance with the district court's injunction.            The conditional

language of the statute and the language directing state officials

to seek a reversal of the injunction reveal the continued presence

of a live controversy between the parties over the validity of LA-

R.S. 40:1299.34.5.   In City of Mesquite v. Aladdin's Castle, Inc.,

, 289, 

, 1074-75, 

(1982),

the Supreme Court held that the repeal of a city ordinance struck

down as a violation of the First Amendment did not moot the appeal

because "the city's repeal of the objectionable language would not

preclude it from reenacting precisely the same provision" if the

lower court's order enjoining the city from enforcing the ordinance

was ever vacated.    In the present case, the plain language of the

LA-R.S.   40:1299.34.5(D)    manifests      the   state's   intent   to   deny

abortions in rape and incest cases as soon as the district court's

injunction can be vacated.     Given the state's power to reenact the

original version of its funding restriction and its stated intent

to do so, we conclude that this appeal is not moot.            We therefore

turn to the merits of the district court's injunction.

                                  III.

     The plaintiffs raise essentially two arguments in support of

the district court's injunction against the Louisiana abortion

funding restriction.   First, they contend that the 1994 version of


                                      7
the Hyde Amendment independently requires states to fund all

abortions permitted by the amendment.        Second, they alternatively

argue    that   LA-R.S.   40:1299.34.5    violates   Title   XIX   and   its

accompanying     regulations   because     the   provision   unreasonably

prohibits abortions without regard to medical necessity.           We will

consider both arguments in turn.

                                   A.

     The plaintiffs first contend that the 1994 Hyde Amendment

substantively amends Title XIX by requiring state Medicaid programs

to cover all abortions in the two categories of cases enumerated in

the amendment:      (1) abortions required to save the life of the

mother, and (2) abortions to terminate pregnancies resulting from

rape or incest. The plaintiffs' reading of the 1994 Hyde Amendment

essentially eliminates the discretion of state Medicaid programs to

place limitations on abortion services in cases of rape or incest

and in cases where an abortion is necessary to save the life of the

mother.

     The plaintiffs' argument relies primarily on the legislative

history of the Hyde Amendment.           During the congressional floor

debates preceding the passage of the 1994 Hyde Amendment, several

legislators stated that a proposal to eliminate the amendment would

result in states having to fund non-therapeutic abortions.               For

example, Senator Nickels explained that a repeal of the Hyde

Amendment "would result in mandating that states pay for these

abortions with state dollars."      139 Cong.Rec. S12,581 (Sept. 28,

1993).    Likewise, Senator Hatch argued that "every state will be


                                    8
required to provide matching funds for abortion on demand" if the

Hyde Amendment were repealed.          

           According to the

plaintiffs, these statements reveal Congress' understanding that

states   must     fund   all   abortions     for    which    federal      funds    are

available.

      The plaintiffs also point to the absence of the so-called

"Bauman Amendment"        language    in    the    1994   version    of    the    Hyde

Amendment.      The Bauman Amendment was originally added to the 1979

version of the Hyde Amendment, and provided that "the several

states are and shall remain free not to fund abortions to the

extent that they in their sole discretion deem appropriate."                       The

plaintiffs argue that the absence of this provision in the current

version of the Hyde Amendment demonstrates that Congress intended

to make Medicaid funding of abortions covered under the Hyde

Amendment mandatory, and thus remove the states' discretion to

limit abortion services provided through their Medicaid programs.

      The defendants counter by arguing that the Hyde Amendment does

not   impose    any     independent   substantive         obligations     on     state

Medicaid programs apart from Title XIX.                     They read the Hyde

Amendment as a mere appropriations provision that restricts the use

of federal funds for abortions except under limited circumstances.

They argue that the amendment is purely permissive with regard to

state funding of abortions under the two exceptions where federal

funds are permitted by the Hyde Amendment.

      Most   of   the    cases   interpreting       the    Hyde    Amendment      have

generally focussed on whether the Hyde Amendment relieves state


                                        9
Medicaid programs of Title XIX's requirements with respect to

abortions for which federal funding is not available under the

amendment.   See Preterm, Inc. v. Dukakis, 

, 125 (1st

Cir.1979);   Roe v. Casey, 

(3rd Cir.1980);   see also

Harris v. McRae, 

, 309, 

, 2684, 

(1980) ("Title XIX does not require a participating

State to include in its plan any services for which a subsequent

Congress has withheld federal funding.").     However, in Hern v.

Beye, 

(10th Cir.1995), the Tenth Circuit addressed the

converse question of whether the Hyde Amendment independently

imposes an obligation on participating states to fund all abortions

permitted by the amendment.     The court concluded that the Hyde

Amendment does not impose substantive obligations on State Medicaid

programs:

     [T]he Hyde Amendment does not affect the states' underlying
     obligations imposed by Title XIX and federal Medicaid
     regulations. That is, although the Hyde Amendment relieves
     states' of having to fund abortions for which federal funding
     is unavailable, it does not alter states' obligations with
     respect to abortions for which federal funding is available.

(emphasis in original).   The court reasoned that state

restrictions on abortion funding must be evaluated with reference

to the requirements of Title XIX and its accompanying regulations,

not the Hyde Amendment.   

with the Tenth Circuit that the Hyde Amendment does

not impose any independent obligations on states apart from the

requirements of Title XIX.      The plain meaning of a statute's

language governs its construction unless so doing would clearly

violate congressional intent or lead to absurd results. See United

                                10
States v. Rodriguez-Rios, 

, 1044 (5th Cir.1994).

        Turning to the language of the Hyde Amendment and the case

law applying the amendment, we agree with the defendants' argument

that the Hyde Amendment does not create substantive obligations.

On its face, the Hyde Amendment merely restricts the use of federal

funds for abortions.      The 1994 version of the amendment provides:

     None of the funds appropriated under this Act shall be
     expended for any abortion except when it is made known to the
     Federal entity or official to which funds are appropriated
     under this Act that such procedure is necessary to save the
     life of the mother or that the pregnancy is the result of an
     act of rape or incest.

Pub.L. No. 103-112, 107 Stat. 1082 (1993).          Although the 1994

version of the Hyde Amendment permits the use of federal funds for

abortions in rape and incest cases, the amendment contains no

language obligating state Medicaid programs to fund abortions under

these    circumstances.      Nor   does   the   amendment   purport   to

substantively amend Title XIX with respect to the authority of

state Medicaid programs to tailor the scope of their medical

coverage.

     Neither the Hyde Amendment's legislative history nor the

absence of the Bauman Amendment language persuade us to abandon the

plain meaning of the statute.      The excerpts of the congressional

debate cited by the plaintiffs focussed on the implications of a

proposal to remove the Hyde Amendment from the 1994 appropriations

bill for health and human services programs.       When viewed in this

context, these statements appear merely to reflect the fear of the

Hyde Amendment's proponents that a defeat of the amendment would

result in states having to fund all medically necessary abortions

                                   11
under Title XIX.       These statements focus on states' obligations

under Title XIX, not whether the Hyde Amendment imposes independent

obligations on state Medicaid programs.             They do not, therefore,

suggest that the Hyde Amendment's language restricting abortion

funding can    be     read   to   conversely    require    states   to   provide

abortions permitted by the amendment.

      We also disagree that the absence of the so-called Bauman

Amendment similarly dictates that we abandon the plain meaning of

the Hyde Amendment. During the Congressional debates preceding the

passage of the Bauman Amendment in 1979, Representative Bauman

explained that the intent of the Bauman Amendment was to modify

states' obligations under Title XIX and to grant participating

states the authority to eliminate abortion services from their

Medicaid programs.      Cong.Rec. 25425-35426 (Dec. 11, 1979).            Thus,

as with the debates over the Hyde Amendment, the debates over the

Bauman Amendment centered on the obligations imposed by Title XIX,

not the Hyde Amendment.           Indeed, Representative Bauman explained

that the purpose of the Hyde Amendment "has been from the beginning

to restrict Federal funding and not in any way to place burdens on

the rights of States."        

      We therefore follow Hern in holding that the Hyde Amendment

does not create any independent obligations on states participating

in   the   Medicaid    Program     to   fund   abortions   permitted     by   the

amendment.    Accordingly, we must now turn to the text of Title XIX

and its accompanying regulations to determine whether the Louisiana

funding restriction violates these requirements.


                                        12
                                       B.

      Whether Louisiana's funding restriction violates Title XIX

turns on the extent to which the Act affords participating states

the discretion to place restrictions on the medical services

offered through their Medicaid programs.            Although Title XIX does

not specifically include abortion as a mandatory service, the

parties concede that abortion services fall under several of the

eight broad categories of medical services mandated by the Act,

including     inpatient     hospital     services,       outpatient    hospital

services, physician's services, and family planning services.               See

42   U.S.C.   §     1396d(a).    The   plaintiffs    contend    that   abortion

services are therefore mandated by Title XIX and that Louisiana's

funding restriction violates the Act because it generally prohibits

abortions except in cases where the mother's life is in danger.

      Title XIX "confers broad discretion on the states to adopt

standards     for    determining   the   extent     of    medical   assistance"

provided through their Medicaid programs.                Beal v. Doe, 

, 444, 

, 2371, 

(1977).                  However,

states' discretion to limit the scope of the medical services

offered through their Medicaid programs is subject to important

restrictions.       Title XIX specifically provides that participating

states must establish "reasonable standards" that are "consistent

with the objectives" of the Act.            42 U.S.C. § 1396a(a)(17).      Some

courts have read this provision as mandating that states must cover

all medical procedures certified as "medically necessary" by a

recipient's physician.          See Weaver v. Reagen, 

(8th


                                       13
Cir.1989);         Pinneke v. Preisser, 

, 548 n. 2 (8th

Cir.1980).         Other courts have declined to impose such a strict

"medical necessity" restriction on states' discretion.               Instead,

they read Title XIX as granting states some discretion to limit

medical services based on their judgment as to whether a particular

medical service is medically necessary.          See 

.3       Under this approach, a state program's decision to limit a

service based on the degree of medical necessity is subject only to

Title XIX's requirement that the limitation must be reasonable.

  promulgated   under   Title   XIX    provide

additional guidance in assessing the reasonableness of a state

restriction on the medical services offered through its Medicaid

program.       These regulations provide that:

        (b) Each [medical] service must be sufficient in amount,
        duration, and scope to reasonably achieve its purpose.

        (c) The Medicaid agency may not arbitrarily deny or reduce the
        amount, duration, or scope of a required service ... to an
        otherwise eligible recipient solely because of the diagnosis,
        type of illness or condition.

        (d) The agency may place appropriate limits on a service based
        on such criteria as medical necessity or on utilization
        control procedures.

42 C.F.R. § 440.230 (emphasis added).          A participating state may,

therefore, choose to limit the provision of particular medical


        3
      In Preterm, the court rejected the argument that a state
Medicaid program must cover any medical procedure certified by a
doctor as medically necessary. Rather, the court reasoned that
state legislatures may make "the macro-decision ... that only
certain kinds of medical assistance are deemed sufficiently
necessary to come under the coverage of its plan." 

                                      14
procedures or treatments as long as the restriction complies with

§ 440.230.

       Almost all the federal circuit cases addressing whether state

abortion funding restrictions violate Title XIX have held that

state restrictions similar to LA-R.S. 40:1299.34.5 violate Title

XIX.       See 

;      Casey, 

;    Hodgson

v. Board of County Comm'rs, County of Hennepin, 

, 608

(8th Cir.1980);       Zbaraz v. Quern, 

, 199 (7th Cir.),

cert. denied, 

, 

, 

(1980);

;         Little Rock Family Planning Services v.

Dalton, 

(8th Cir.1995).4           In many of these cases, the

state abortion funding restrictions were actually less restrictive

than LA-R.S. 40:1299.34.5 because they allowed funds for abortions

in cases of rape or incest.         Although each of these courts offer

slightly different rationales for holding the restrictions invalid,

they each generally arrive at the same conclusion:                the state

restrictions were inconsistent with the basic objective of Title

XIX to provide necessary medical services to eligible recipients.

       In Preterm, the First Circuit struck down a Massachusetts

abortion funding restriction that was less restrictive that the

Louisiana restriction at issue in this case.             The Massachusetts

statute       prohibited   the   state    Medicaid   program   from   funding

abortions except in cases where the mother's life was in danger and

       4
      Recent federal district court decisions have similarly held
that such restrictions are invalid. See Planned Parenthood v.
Wright, No. 94 C 6886, 

(N.D.Ill. Dec. 6, 1994);
Planned Parenthood v. Engler, 

(W.D.Mich.1994);
Planned Parenthood v. Blouke, 

(D.Mont.1994).

                                         15
where the pregnancy resulted from rape or 

-

127.       The plaintiffs in Preterm argued that the state's funding

restriction violated Title XIX because it did not permit funding

for abortions in cases where the health of the mother was at risk.5

       Although the First Circuit acknowledged that the state's

abortion funding restriction was arguably a limitation based on

medical necessity, the court concluded that restrictions which

limit medical services "to life and death situations" and cases of

rape       and    incest   contravene    the    objectives    of    the   Act.   

the court, the state funding restriction contravened

the objectives of Title XIX in two respects.                       First, the court

reasoned that Title XIX's objective of providing needed medical

care is          broader   than   the   stark   "life   and   death"      restriction

embodied in the Massachusetts provision.                The court concluded that

the state's restriction thus "crossed the line between permissible

discrimination based on degree of need and entered into forbidden

discrimination based on medical condition." 

                    The court

further held that the restriction contravened Title XIX by failing

to incorporate physician input into whether or not a given abortion

procedure is medically necessary.               According to the court, Title

XIX "provides for a central role for the physician in determining

proper treatment."           

       In Hodgson, the Eighth Circuit similarly held that a Minnesota


       5
      At the time, the Hyde Amendment permitted funds to be used
for abortions in cases where the mother would suffer severe and
long-lasting physical damage if forced to carry the pregnancy to
term. See Pub.L. 95-205, 91 Stat. 1460 (Dec. 9, 1977).

                                           16
statute limiting Medicaid-funded abortions was 

.    As with the Massachusetts statute, the Minnesota statute

limited abortions offered through its Medicaid program to cases

where the abortion was necessary to save the life of the mother and

in cases of rape or incest.      The court concluded that Minnesota's

funding restriction was arbitrary because the state's Medicaid

program subsidized "health-sustaining" services in general, but, in

the case of abortion, subsidized abortion procedures only if they

were "life-sustaining."    

concluded that the state's

restriction on abortion funding was thus "not in accordance with a

uniform standard of medical need."        

and Hodgson were decided against the backdrop of

the pre-1981 version of the Hyde Amendment, which, like the 1994

version of the amendment, permitted federal funding for abortions

in cases of rape and incest.     The Tenth Circuit, however, recently

addressed this precise issue against the backdrop of the 1994

version of the Hyde Amendment.        In Hern, the court ruled that a

Colorado   statute   contravened    Title   XIX   because   it   restricted

abortions provided through the state's Medicaid program to cases

where an abortion was necessary to save the life of the mother.

Like the Louisiana abortion funding restriction, the Colorado

restriction did not provide funds for abortions in cases of rape or

incest.    The court held that the statute contravened Title XIX

because it "categorically denies coverage for a specific, medically

necessary procedure except in those rare instances when a patient's

life is at stake."      

      The court reasoned that this


                                     17
restriction was antithetical to a basic objective of Title XIX—"to

provide necessary medical services to qualified individuals."                       

        Therefore, Hern essentially tracks the reasoning of

Hodgson    and      Preterm    in   holding      that     the     Colorado     funding

restriction        violated   Title   XIX      because     it   was     an    arbitrary

restriction based solely on a recipient's condition or diagnosis.

       We agree with the reasoning of these decisions and hold that

Louisiana's abortion funding restriction similarly violates Title

XIX.    The text of Title XIX reveals that the Medicaid program is

not limited to merely providing medical services necessary to save

patients' lives.        Title XIX contains no language suggesting that

the medical services mandated by the Act are mandatory only in life

and death situations.           Indeed, Title XIX specifically requires

participating states to provide preventive medical services, such

as prenatal care, dental care, and "periodic screening, diagnostic

and treatment services" for eligible recipients under age 21.                       See

42   U.S.C.    §    1396d(a)(4)-(5).        Title    XIX    also      requires    state

Medicaid programs to provide outpatient hospital services.                       See 42

U.S.C. § 1396d(a)(2)(A). That Title XIX requires states to provide

medical services not typically associated with life and death

situations manifests the broad scope of the program.                     As noted in

Hodgson,      the    broad    objective     of    Title     XIX    is    to    provide

"health-sustaining" medical services to eligible recipients, not

merely "life-sustaining" 

.

       Given the broad scope of Title XIX, Louisiana's funding

restriction is inconsistent with the objectives of the Act because


                                          18
the restriction categorically limits abortions offered through the

state's Medicaid program to life and death situations without

regard to the medical necessity of abortions in rape and incest

cases.      During the hearing, the plaintiffs produced evidence

supporting their claim that abortions in rape and incest cases are

often medically necessary even though the mother's life might not

be in danger.       The plaintiffs' evidence included research reports

and expert testimony detailing the mental and physical health

problems attendant to pregnancies resulting from rape or incest.

The plaintiffs also introduced a December 1993 letter sent by the

HCFA to the directors of each state Medicaid program.                    The letter

stated that, in the opinion of the HCFA, Title XIX now requires

participating states to fund medically necessary abortions in rape

and incest cases because of the expansion of funding under the 1994

version of the Hyde Amendment.            This language suggests that, in at

least    some    cases,     abortions     in   cases   of    rape   or   incest   are

medically       necessary    and   must    therefore    be    provided    by   state

Medicaid programs under Title XIX.6

         The defendants failed to controvert the plaintiffs' evidence

that abortions in rape and incest cases are frequently medically


     6
      The HCFA letter also suggests that abortions in rape and
incest cases are "per se" medically necessary and, therefore,
must be provided by states without restriction. We need not,
however, decide whether this language in the HCFA directive
purports to totally eliminate states' discretion to restrict
abortions in rape and incest cases. Regardless of whether the
directive can be read to eliminate states' discretion over
abortions in rape and incest cases, Louisiana's restriction
violates Title XIX because it categorically limits
Medicaid-funded abortions to life and death situations.

                                          19
necessary.        Indeed, the defendants do not dispute the plaintiffs'

argument that Louisiana's abortion funding restriction is not

grounded on the health or medical needs of Title XIX patients.

Although Title XIX and 42 C.F.R. § 440.230 allow state Medicaid

programs to adopt appropriate limits based on medical necessity,

such restrictions must be consistent with the Act's objective of

providing     a    broad   range    of   health-sustaining   services.       For

example, restrictions that limit the provision of medical services

to life and death cases may be appropriate where the medical

benefits of certain procedures or treatments are significantly

outweighed by their risks to patients' health.            Such a restriction

would    be   consistent     with    promoting   the   health   of   Title   XIX

patients.     Restrictions might also be appropriate where the state

legislature or the state Medicaid program determines that a medical

treatment or procedure is not medically necessary.               See 

.7          However, the defendants offer no grounds for

concluding that abortions in rape and incest cases are never

medically necessary.

     7
      See also Mother Doe et al. v. Stewart, No. 74-3197 (E.D.La.
Feb. 20, 1976) (Ainsworth, J.). In Mother Doe, a three judge
district court upheld a Louisiana statute that prohibited
"non-therapeutic" abortions. The court held that a state can,
consistent with Title XIX, prohibit abortions that are not
medically necessary:

              [I]n view of Congress' recognition of a State's limited
              resources, its attitude toward abortions and its
              silence on the subject, we believe that Congress did
              not intend that States should pay for non-medically
              necessary abortions as necessary medical expenses when
              States are not required to fund other medically
              non-necessary services such as elective cosmetic
              surgery.

                                         20
       We    also    disagree    with    the    defendants'      contention    that

Louisiana's interest in encouraging childbirth over abortion is

sufficient to sustain the state's abortion funding restriction.

The defendants' argument relies primarily on language taken from

, 97 S.Ct. at 2371-2372.                     In Beal, the

Supreme Court upheld a state statute that prohibited the state's

Medicaid program from offering non-therapeutic abortions.                         The

court reasoned that states had a legitimate interest in encouraging

childbirth, and that this interest is sufficiently compelling to

support state restrictions on Medicaid funding for non-therapeutic

abortions:

       The respondents point to nothing in either the language or the
       legislative history of Title XIX that suggests that it is
       unreasonable for a participating State to further this
       unquestionably strong and legitimate interest in encouraging
       normal childbirth. Absent such a showing, we will not presume
       that Congress intended to condition a State's participation in
       the Medicaid program on its willingness to undercut this
       important interest by subsidizing the costs of non-therapeutic
       abortions.

97 S.Ct. at 2371.             The defendants contend that the

Court's reasoning in Beal supports Louisiana's funding restriction

even   though,       unlike   the   restriction       in   Beal,    the   Louisiana

provision also prohibits therapeutic abortions except in cases

where the mother's life is in danger.

         Although we agree that Louisiana's interest in encouraging

normal      childbirth   is     legitimate     and   supports      restrictions    on

non-therapeutic abortions, we do not agree that this interest is

sufficient      to    sustain    the    state's      present    abortion    funding

restriction.         As we previously explained, one of the principal


                                         21
objectives of Title XIX is the provision of necessary medical

services to eligible recipients.             A state cannot, therefore, adopt

an abortion funding restriction based solely on its interest in

encouraging childbirth without taking the medical necessity of the

procedure into account.

     In sum, we conclude that LA-R.S. 40:1299.34.5 violates the

requirements     of    Title      XIX    because   it   categorically      prohibits

funding for abortions in cases of rape or incest without regard to

whether    the   procedures        might     be    medically      necessary.      The

defendants offer no medical basis for restricting abortions to life

and death situations, nor do they contest the plaintiffs' position

that abortions        in   rape    and    incest    cases   are    often   medically

necessary.    The state's abortion funding restriction is therefore

inconsistent with the broad objective of Title XIX to provide

needed medical care to qualified recipients.                      Accordingly, the

district court did not err in enjoining the state from enforcing

LA-R.S. 40:1299.34.5 as long as the state receives funds under

Title XIX.

                                           IV.

     For the reasons stated above, we AFFIRM the district court's

order     enjoining        the     defendants        from      enforcing       LA-R.S.

40:1299.34.5's ban on funds for abortions in rape and incest cases

as long as the state receives federal funds under Title XIX.

     AFFIRMED.

     GARWOOD, Circuit Judge, concurring:

     I concur in Judge Davis's thoughtful and well-crafted opinion,


                                           22
and append this writing merely to underscore my understanding as to

what we do not hold or opine respecting in two particular areas.

       While I agree that Louisiana's "unquestionably strong and

legitimate interest in encouraging normal childbirth," Beal v. Doe,

  at   446,    

  at    2371   (1977),    is   not

sufficient justification for the State, as a Title XIX participant,

to categorically deny abortion funding to all Medicaid-eligible

patients who are victims of rape or incest "without taking the

medical necessity of the procedure into account" (majority op. p.

5687), I believe that interest may properly be taken into account

by the state in determining the character and degree of medical

necessity, in cases where the mother's life is not at stake, which

will       be   required   in     order   to    justify      provision   of    abortion

services. In other words, the interest in preserving human life is

a rational justification for a participating state to require

greater and more concrete and verifiable medical necessity in cases

of abortion than in cases of procedures which do not terminate

human life.        I do not understand Judge Davis's opinion to hold or

opine to the contrary.              Nor do I understand us to address the

question of just what character or degree of medical necessity and

demonstration thereof a participating state may lawfully require

before funding an abortion for a Medicaid-eligible patient whose

pregnancy results from rape or incest.1

       1
      The three-judge court in Mother Doe et al. v. Stewart, No.
74-3197 (E.D.La. Feb. 20, 1976), held that Louisiana's then
policy of providing abortion funding for Medicaid-eligible
patients only where either necessary to save the mother's life or
"necessary to prevent serious and permanent impairment to the

                                           23
     Second, the State of Louisiana in this appeal has taken an

essentially all or nothing position, namely that it is entitled to

participate in Title XIX while at the same time declining to ever

provide Medicaid-eligible patients any funding for any abortions

save only those necessary to save the mother's life.          The State's

only complaint of the district court's decree is that the decree

conflicts with this supposed right of the State.          We are thus not

faced    with   issues   of   the    kind   raised   by   Judge   Bowman's

well-reasoned dissent in respect to the form of the district

court's decree in Little Rock Family Planning Services v. Dalton,

(8th Cir.1995).         The form of the decree here has not

been put in issue on this appeal,2 and I do not understand Judge

Davis's opinion to address that matter.




physical health of the mother" was "consistent with the Social
Security Act" (id. at 16, 17). Mother Doe was summarily
"affirmed" by the Supreme Court. Doe v. Stewart, 

,

, 

(1977) (per curiam; Justices
Brennan, Marshall, and Blackmun dissenting). The Supreme Court
jurisdictional statement of the plaintiffs-appellants in Doe v.
Stewart lists as the second of the two "Questions Presented,"
"Does the Medicaid policy of the State of Louisiana, which
provides payment for only therapeutic abortions, as defined by
state law, violate the requirements of the Social Security Act of
1935, as amended?", and explains that "the Louisiana Medicaid
Program would not pay for [plaintiff-appellant] Jane Doe's
abortion because her pregnancy had not been medically determined
to be seriously threatening to her life or her physical health."
Mother Doe involved an unmarried minor's pregnancy not claimed to
have resulted from rape or incest.
     2
      All the State has placed in issue on this appeal is the
claim that LA.R.S. 40:1299.34.5's restriction of any abortion
funding to instances where necessary to save the mother's life is
wholly valid notwithstanding Louisiana's continued participation
in Title XIX.

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