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Federal Court Upholds Medicaid Restriction for Undocumented Immigrants
by Greg Siskind and Amy Ballentine

This week the Second Circuit Court of Appeals issued a decision in a case pending for more than 20 years dealing with restrictions on the ability of undocumented immigrants to receive publicly funded prenatal care. The case, initially filed in 1979, challenged a regulation issued by the Department of Health, Education and Welfare (since split into the Departments of Education and Health and Human Services) denying all Medicaid benefits to undocumented immigrants.

Since the case was first filed, a number of significant changes have been made to the Medicaid system. In 1981, Congress authorized state’s to provide Medicaid funds to all pregnant women, regardless of their immigration status. In 1984, Medicaid coverage for pregnant women was made mandatory, regardless of the woman’s immigration status. In 1986, a judge in this case ruled that the 1979 regulation denying Medicaid benefits to undocumented immigration violated the Medicaid statute and issued an injunction prohibiting its implementation. Shortly after this ruling, Congress amended the Medicaid statute to bar undocumented immigrants from Medicaid coverage except in cases of a medical emergency.

In 1996, Congress passed a sweeping welfare reform act, which severely limited the ability of all noncitizens to obtain federal public benefits. The exception for emergency care was retained. However, in a report accompanying the bill, Congress stated that it did not intend emergency care to include pre-natal or delivery care. It also eliminated automatic Medicaid coverage at birth once the children were born. After this law was passed, the Department of Health and Human Services sought to have the injunction reversed.

The judge agreed that Congress clearly intended to bar undocumented expectant mothers from Medicaid, and so proceeded to rule on the constitutionality of that action. He found that at least some of the mothers who formed the class action suit could assert the rights of their unborn children, who would be US citizens, and that the children were harmed by this outcome, only because of the status of their mother. The court found that this outcome could not be justified and violated the Equal Protection Clause of the Constitution.

The Second Circuit first established as facts that the children of mothers who do not receive proper prenatal care generally have health problems throughout their lives, and that it is much more cost effective to provide prenatal care than a lifetime of intensive medical treatment. Despite this, the court found that Congress clearly intended to, and could, constitutionally deny Medicaid benefits to pregnant women not in the US legally.

The class members made two primary arguments against the constitutionality of the Medicaid restriction, first that it was unconstitutional as applied to them, and second that it was unconstitutional as applied to their unborn children who would be US citizens. On the first claim, because of the broad power Congress has over immigration law, there only had to be a rational basis for its decision to exclude undocumented expectant mothers from Medicaid coverage. Because Congress sought to eliminate a possible incentive for undocumented immigration by denying welfare benefits, the restriction was found constitutional.

The plaintiffs argued that their as yet unborn children would be able to assert a claim seeking compensation for the denial of prenatal care after they were born. The court found this argument without merit, based on the fact that Roe v. Wade declared that a fetus does not have a constitutional right to be born. The court found this position logically extended to the proposition that the fetus has no constitutional right to better prospects of good health after birth. Because the harm occurs before the child becomes a person as recognized under the Fourteenth Amendment, before there could be an Equal Protection violation, the court found it was not actionable.

The plaintiffs also challenged the automatic denial of Medicaid coverage to their US citizen children once they were born. Under a 1984 change to the Medicaid statute, all children whose mothers qualified for Medicaid were automatically qualified for one year. Because undocumented mothers of US citizen children could not qualify for Medicaid, the children were denied Medicaid benefits. The children could still qualify, but because it is not automatic, it requires forms to be filled out and eligibility requirements to be met. The Second Circuit found that this restriction caused harm to the US citizen children.

While the court was not unanimous in the reasoning used to reach the decision, it found that the denial of automatic Medicaid eligibility to the US citizen children of undocumented mothers was a denial of Equal Protection. It remanded the case to the district court judge to modify the injunction.

The court’s opinion will have a huge impact on the Medicaid programs in the states in its jurisdiction – New York, Vermont and Connecticut – but the court said little about the form the changes should take. Its only comment was that “because the alien mother, unlike the citizen mother, cannot obtain Medicaid coverage for herself prior to giving birth, it seems likely that the Secretary will have to adopt some procedure permitting the alien mother, during her pregnancy, to apply for and obtain a Medicaid number for her child that is automatically effective upon the child’s birth.

It is estimated that in New York alone more than 13,000 babies a year will be denied prenatal care. Under the previous injunction, the federal government reimbursed the state for about 50 percent of the costs of its prenatal Medicaid program, which was offered based only on income, without regard to immigration status. Officials with the state are concerned that without federal reimbursement, it will not be able to continue to offer the program to undocumented women.

Without prenatal care, the cost to the state will also rise substantially. The cost for prenatal care for 13,000 births last year was about $15.5 million, of a total Medicaid budget of $30 billion. The average healthy birth cost $1,200, while the cost of a low birth weight baby of a woman who did not receive adequate prenatal care is anywhere from $10,000 to $65,000. This does not include the potential cost associated with a lifetime of medical care.

In the wake of the Second Circuit’s decision, New York State legislators were examining ways to continue to provide prenatal care to all women in the state, regardless of their immigration status. One possible proposal is to provide the care using exclusively state funds, as do other states, like California.

One interesting side note to the case is that the Second Circuit raised the issue of Roe v. Wade itself, without either of the parties addressing the seminal abortion case. Lawyers say that the Supreme Court could use this case to re-examine Roe. Indeed, lawyers for the class say they are having a hard time deciding whether to appeal the case because of the implications for Roe.


About The Authors

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com


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