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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.

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