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    NATIONAL EDUCATION ASSOCIATION OF RHODE ISLAND, et al., v. J. Joseph GARRAHY, et al. PLANNED PARENTHOOD OF RHODE ISLAND, et al., v. Thomas J. CALDARONE, Jr., et al.
    Civ. A. Nos. 82-0399P, 83-0406P.
    United States District Court, D. Rhode Island.
    Dec. 3, 1984.

      Lynette Labinger, Providence, R.I., for plaintiffs.
    Donald Elbert, R.I. Atty. General’s ■ Dept., Providence, R.I., Albert West, Providence, R.I., for defendants in No. 82-0399P.
    Donald Elbert, R.I. Atty. General’s Dept., Providence, R.I., for defendants in No. 83-0406P.
   OPINION

PETTINE, Senior District Judge.

Plaintiffs in this consolidated action seek permanent declaratory and injunctive relief, pursuant to 42 U.S.C. § 1983, against the enforcement of two statutes enacted by the Rhode Island General Assembly which regulate the availability of health insurance coverage for abortions. The first statute, Rhode Island General Laws § 27-18-28 (“the health insurers’ prohibition”), requires all insurers doing business in Rhode Island to exclude from comprehensive health insurance policies coverage for all induced abortions, except those where the life of the mother would be endangered if the fetus were carried to term or where the pregnancy is the result of rape or incest. Coverage for the abortions excluded by the statute may be obtained only by a separate, optional rider for which an additional premium must be paid. The second statute, R.I.G.L. § 36-12-2.1, prohibits the State of Rhode Island and its municipalities from providing public employees with health insurance covering the same class of excluded abortions. Plaintiffs challenge this statute only insofar as it applies to municipal employers (“the municipal prohibition”). Plaintiffs challenge the health insurers’ prohibition as violative of the Supremacy Clause insofar as it is inconsistent with Title VII, as an impermissible burden on the right of a woman, in consultation with her doctor, to choose to terminate her pregnancy, as that right is protected by the First, Fourth, Ninth and Fourteenth Amendments to the United States Constitution, and as a violation of the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs challenge the municipal prohibition as violative of Title VII of the Civil Rights Act of 1964, and as an impermissible burden on the protected right of abortion.

A temporary restraining order having been issued against the enforcement of both statutes, the matter is now before the Court on cross-motions for summary judgment, in support of which the parties have filed stipulations of fact. Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331, 1343(3), 2201, 2202, and 42 U.S.C. § 2000e-5(f)-

I. PARTIES

Plaintiffs challenging the health insurers’ prohibition are Planned Parenthood of Rhode Island (“PPRI”), a class of physicians and a class of individual women. PPRI is a licensed facility in Providence which provides abortion services. The class of individuals consists of all women of childbearing age in the state who have or will have comprehensive health insurance covering the cost of abortions, including the excluded abortions. The class of physicians consists of all licensed physicians who perform or wish to perform abortions in the state for women whose health insurance covers the cost of abortion. The defendant is the State Commissioner of Insurance, who would be required by law to enforce the prohibition.

Plaintiffs challenging the municipal prohibition are the Rhode Island Federation of Teachers (“RIFT”), the Rhode Island Chapter of the National Education Association (“NEA”) and a class of individual women. Both RIFT and NEA are labor organizations whose members include women of childbearing age and capacity who are employed by municipal subdivisions of Rhode Island. The class of individual women consists of all women of childbearing age and capacity who have been, are now, or will be employed by any municipal or other subdivision of Rhode Island. The class is represented by plaintiffs Krause and Doe, each of whom is of childbearing age and capacity, does not presently wish to bear children and would consider abortion if she became pregnant. Defendants are the State Commissioner of Insurance, who would be required by law to enforce the prohibition, and most of the school committees in Rhode Island. By agreement of the parties, the Lincoln School Committee shall serve as the sole active municipal defendant; the remainder of the school committees have agreed to be bound by any judgment rendered against Lincoln.

II. BACKGROUND

A. The Health Insurers’ Prohibition

At issue here is whether, consistent with the Pregnancy Discrimination Act of Title VII and the constitutional protection afforded a woman’s right to choose abortion, the state may properly compel all insurers in Rhode Island, including private insurers, to effectively impose a surcharge on insurance coverage for the excluded abortions.

The relevant facts are undisputed and may be briefly summarized. Before the planned effective date of the prohibition, virtually all comprehensive health insurance policies in Rhode Island which covered pregnancy-related conditions also covered all induced abortions. Stipulation of the Parties (“Stip.”) II, II8. Blue Cross and Blue Shield of Rhode Island (“Blue Cross”) and the Rhode Island Group Health Association (“RIGHA”), who between them provide the vast majority of health insurance policies in Rhode Island, Stip. II, 118b, have stated that but for the prohibition, they would not have deleted or segregated from their comprehensive policies the abortion coverage at issue here. Stip. II, 1f 9. The insurers have also stated that the abortions excluded by the statute represent the majority of all abortions performed in Rhode Island. Stip. II, If 11a. Before the Court entered its restraining order, Blue Cross and RIGHA had formulated their responses to the restrictions imposed by the General Assembly. Stip. II, 1115. Under the plans which the insurers intended to submit for approval to the Commissioner, the monthly cost of comprehensive coverage would be reduced for consumers who do not seek coverage for the excluded abortions. Those wishing the “abortion rider” would be required to pay an extra' premium, calculated by the insurers to represent the incremental cost of abortion coverage. The effect of this implementing plan would be to render comprehensive insurance, including abortion coverage, available at the rates which prevailed prior to the statutory restriction — but nonetheless at a price higher than the one charged for a policy without abortion coverage.

The implementing plan, however, would not make abortion coverage available to all who wished to purchase it, even at a higher price. For those women insured through employer-financed group plans, the decision whether to purchase the rider would be left solely to the employer. Id. Similarly, for women insured through a non-employer group plan, one hundred percent of the group’s members would be required to select the rider in order for the policy to include it. Id. Accordingly, any employer or any single group member could veto the rider for all the women insured under such plans. Women wishing to retain abortion coverage would then be required to leave the group plan — which could mean losing an employer-subsidy or group discount. Furthermore, Blue Cross would make available abortion and maternity coverage only under a family plan. Stip. II, If 15b. Hence, a single woman seeking to maintain coverage for abortions could not do so with Blue Cross at any price. Stip. II, 111[ 15b, 21. Rather, she would be required to switch to RIGHA which, unlike Blue Cross, does not permit its subscribers to choose their own physicians or facilities. Thus, the transition would carry substantial adverse consequences for at least some Blue Cross subscribers.

The plaintiffs highlight the fact that insurance coverage for no other medical procedure is regulated in this fashion. Stip. II, 1Í 22. Further, plaintiffs allege and defendants concede that loss of insurance coverage for the excluded abortions may delay or deter some employees from having abortions which they desire, Stip. II, If 23-26, and that such medically unnecessary delay in securing an abortion may operate to the detriment of women’s health. Id. at If 27. Plaintiffs submit the uncontroverted affidavit of Dr. Lynn Lowe in further support of these medical claims.

Defendants stipulate to all the facts marshalled by plaintiffs in opposition to the health insurers’ prohibition. They assert that the Legislature has merely expressed a policy preference for childbirth over abortion — a preference which defendants claim is shielded from constitutional scrutiny by the Supreme Court’s decisions in Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) and Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). In those cases, the Court held that state governments and the federal government, respectively, may encourage childbirth over abortion by declining to subsidize abortions with government funds.

B. The Municipal Prohibition

At issue here is whether the state has run afoul of either Title VII or the federal Constitution by barring all municipal employers in Rhode Island from providing employees with health benefits covering the excluded abortions.

The relevant facts are again undisputed. Prior to the enactment of the municipal prohibition, the Lincoln School Committee provided its employees, as part of their fringe benefits, with health insurance that covered the cost of any induced abortion. Stip. Ill, 1113. The policies were provided by either Blue Cross or RIGHA. Stip. Ill, 1113e. Prior to the state legislation, Lincoln had made no determination to eliminate coverage for the excluded abortions, Stip. Ill, ¶ 13f, although it has not objected to the state’s determination. Since enactment of the statute, at least Blue Cross, and possibly RIGHA, have notified all public employers, including Lincoln, that pursuant to the statute, coverage for the excluded abortions would be deleted from employees’ policies. Stip. Ill, 1116-17.

Plaintiffs call particular attention to the fact that the state does not typically involve itself in the myriad employment decisions made by local government employers. Such decisions include, for example, wage, benefit, collective bargaining, hiring, firing and budget determinations. Stip. Ill, ¶ 22. Likewise, the state pays neither the salaries nor the fringe benefits of municipal employees. Stip. Ill, 1123. Indeed, plaintiffs allege and the defendants concede that the municipality, and not the state, is the “employer” of its employees for purposes of Title VII. Id. Finally, plaintiffs again underscore the negative health effects that flow from a woman’s decision to delay, for inability to pay, the decision whether to have an abortion or to delay, or forego the abortion itself, if the woman wishes to terminate her pregnancy. Stip. II, 111123-27.

For their part, defendants take no issue with the foregoing facts. Rather, they argue only that they are entitled, as a matter of federal statutory and constitutional law, to decree that no public funds in Rhode Island shall subsidize the excluded abortions — irrespective of the consequences for female public employees. They again rely on the Supreme Court’s public funding decisions, which they argue recognize that the state may ensure that no public funds are spent by any governmental entity for the excluded abortions.

III. STANDING

With a single exception, defendants do not contest plaintiffs’ standing to challenge the statutes. The only issue defendants raise is whether the plaintiff municipal employees may properly attack the municipal prohibition as a violation of Title VII. Plaintiffs premise their Title VII claim on the theory that the Pregnancy Discrimination Act of Title VII reserves for individual employers the decision whether to offer employees abortion coverage and that the state’s blanket prohibition impermissibly usurps each municipality’s prerogative. Defendants argue that such a claim advances the federal statutory rights of employers and may not properly be brought by the employees. I cannot agree.

The constitutional dimension of the standing inquiry requires that the plaintiff allege “such a personal stake in the outcome of the controversy as to warrant his invocation of federal court jurisdiction and to justify the exercise of the court’s remedial powers in his behalf.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962)). The core of the Article III requirement is that the plaintiff allege real or immediately threatened injury in fact. See e.g., Gladstone Realtors v. Bellwood, 441 U.S. 91, 99-100, 99 S.Ct. 1601, 1607-1608, 60 L.Ed.2d 66 (1979). Plaintiffs here have plainly alleged such injury. The stipulated facts state that the cost of the excluded abortions in Rhode Island ranges from $185 to $1,000, Stip. II, ¶ 11c — a cost which any plaintiff employee would be forced to bear herself if the statute goes into effect and she seeks to have an excluded abortion.

Nor is there any “prudential” bar to plaintiffs’ standing in this case. See generally Ozonoff v. Berzak, 744 F.2d 224 (1st Cir.1984) (reviewing in detail prudential standards for standing). For plaintiffs here rest their challenge on alleged injury to their own rights, not merely those of third parties. The general rule denying standing where a claimant asserts the rights of a third party, see generally Warth v. Seldin, supra, applies only where the claimant lacks the constitutional prerequisite of an injury-in-fact, see, e.g., U.S. v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). Where, as here, the claimant alleges a “derivative injury” as a result of the deprivation of the third party’s rights, it is settled that he or she may sue. See L. Tribe, American Constitutional Law, § 3-27, at 108; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915) (alien employee may challenge state criminal prohibition on hiring aliens, although employer is subjected to criminal sanctions); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (private school owners may challenge enforcement of state statute criminalizing parents’ failure to send children to public school, although parents are subjected to criminal sanctions); see generally Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 434 (1974). The very justification for such a rule is exemplified by this case: if the party whose rights are asserted cannot or does not challenge the provision, then the derivately-injured party is left without a means of redress. See Tribe, supra, at 108; Note, supra, at 435.

IV. THE VALIDITY OF THE RHODE ISLAND STATUTES

A. The Title VII Challenge

In deference to the settled rule that a federal court, “for sound jurisprudential reasons, ‘ought not to pass on questions of constitutionality unless such adjudication is unavoidable,’ ” Harris v. McRae, 448 U.S. 297, 306-07, 100 S.Ct. 2671, 2682-83, 65 L.Ed.2d 784 (1980) (quoting Spector Motor Service v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944)), the Court will consider first the Title VII claims raised by plaintiffs.

Plaintiffs ground their Title VII claim against both of the challenged statutes in the Pregnancy Discrimination Act of 1978, (“the PDA”), 42 U.S.C. § 2000e(k). The Act requires employers who elect to provide their employees with health and disability benefits to include benefits for pregnancy-related conditions in their plans. See Barone v. Hackett, No. 81-90P (D.R.I. May 20, 1982) (Pettine, C.J.). In the critical language at issue here, Congress excepts coverage for abortions from this general rule:

This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

The question before this Court is whether the PDA reserves solely for the individual employer the decision whether to provide abortion benefits. Plaintiffs argue that the PDA does affirmatively protect the employer’s right to make the coverage decision, such that (1) the health insurers’ prohibition is fatally inconsistent with the PDA insofar as it will operate to induce employers to exclude the more costly abortion benefits and (2) the municipal prohibition is directly violative of Title VII insofar as it usurps from municipal employers the benefits choice.

In interpreting Title VII, the Court must look first to the language of the statute, ascribing to the words used their “ordinary meaning.” American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982). By its words, the PDA clearly confers federal statutory protection on the provision of pregnancy-related benefits and certain limited abortion benefits. Just as clearly, the words of the statute expressly decline to protect benefits for those abortions excluded by the Rhode Island statutes. Congress took care, however, to clarify that employers should not read this exclusion to amount to a federal prohibition on the provision of these abortion benefits. The critical words state that “nothing herein,” i.e., in Title VII, “shall preclude an employer from providing the benefits.” Yet, plaintiffs would apparently read “nothing herein” to mean “nothing,” thus finding in the PDA a congressional command that no law, enacted by any legislative body, shall bar or operate to restrict the provision of these benefits. But, as limiting language, the word "herein” could scarcely be more clear. Thus, far from imposing an affirmative bar to state legislation affecting the provision of abortion benefits, the language of the PDA states only a position of deliberate federal statutory neutrality with respect to these benefits.

The legislative history of the Act supports the identical conclusion. The House report which accompanied the bill explained:

Many members of the committee were troubled, however, by any implication that an employer would have to pay for abortions not necessary to preserve the life of the mother through medical benefits or other fringe benefit programs, even if that employer — a church organization for example — harbored religious or moral objections to abortion; such a requirement, it was felt, could compromise the religious freedom of such employers. The committee, therefore, amended the language of the bill to deal with the problem, by making clear that such employers will not be required to pay for abortions except where the life of the mother would be endangered if the fetus was carried to term. At the same time, the bill as amended makes plain that there is no intent to alter the effect of any other laws, including the National Labor Relations Act, upon the question of benefits for abortion, or to forbid employers to provide such benefits if they wish to. (emphasis in original).
House Report 95-948, reported in 1978 United States Code Congressional and Administrative News 4749, 4755.

Likewise, the remarks of individual congresspersons on the floor restated this position. See id. at 4766; 124 Cong.Rec. 21435 (remarks of Rep. Hawkins); 124 Cong.Rec. 21437 (remarks of Rep. Beard). Indeed, the words of the Committee Report address directly the effect which Congress believed the PDA should have on other laws:

There is no intent to alter the effect of any other laws, including the National Labor Relations Act, upon the question of benefits for abortion, or to forbid employers to provide such benefits if they wish to. (emphasis supplied).
1978 U.S. Code Cong. & Admin.News at 4755 (emphasis added).

Presumably, the category of “any other laws” includes state laws. Here, Rhode Island has chosen to legislate restrictions on the provision of these benefits. While these enactments raise grave federal constitutional problems, as I discuss infra, I do not find that they violate federal statutory policy.

Having found that the PDA announces a federal policy of neutrality on the question whether employers must provide abortion benefits, I find no fatal inconsistency in the health insurers’ prohibition — even if that enactment could weight the individual employer’s choice against the provision of benefits.

Likewise, I conclude that the PDA imposes no federal statutory limitation on the sovereign prerogatives of a state government to restrict the benefits paid to public employees — as Rhode Island has done through the municipal prohibition. While plaintiffs are correct in arguing that the municipal employer and not the state is, for purposes of Title VII, considered the plaintiffs’ “employer,” see Stip. III, ¶ 24; Vanguard Justice Society v. Hughes, 471 F.Supp. 670 (D.Md.1979); Curran v. Portland Superintendent of School Committee, 435 F.Supp. 1063 (D.Me.1977), I hold that Title VII imposes no bar on state legislation compelling municipal employers to withhold the benefits. History teaches that when Congress has taken legislative steps to subject state and local governmental employers to the commands of federal antidiscrimination legislation, these steps have been both deliberate, see, e.g., 42 U.S.C. § 2000e(a), enacted as Pub.L. 92-261 § 2(1) (1972) (amending Title VII to cover state and local employers), and controversial, see, e.g., United States v. City of Chicago, 573 F.2d 416 (7th Cir.1978) (rejecting city’s claim that Tenth Amendment prohibits finding that city government violated Title VII absent a showing of discriminatory purpose). Where, as here, Congress has unequivocally adopted a position of neutrality, and has disclaimed any intent to affect other laws on the subject, this Court cannot find the federal limitation on state legislation which plaintiffs seek. Accordingly, I hold that the municipal prohibition does not violate Title VII.

B. The Constitutional Challenge

I must consider plaintiffs’ constitutional challenge to the Rhode Island statutes within the analytical framework set forth by the Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and its progeny.

In Roe, the Court held that the constitutional right of privacy “is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” 410 U.S. at 153, 93 S.Ct. at 727. Recently, the Supreme Court has reaffirmed the vitality of Roe’s basic holding, recognizing that a woman’s right to choose to terminate her pregnancy is grounded in the “concept of personal liberty” guaranteed by the Constitution and traceable to the “individual’s ‘freedom of choice in matters of marriage and family life.’ ” City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 2491, 76 L.Ed.2d 687 (1983) (quoting Roe, 410 U.S. at 169, 93 S.Ct. at 735, Stewart, J., concurring).

In recognition of the fundamental right to choose abortion, the Court has insisted that strict scrutiny be applied to laws regulating abortion, and that such laws be justified by a “compelling state interest” and a showing that the regulation is “narrowly drawn” to protect “only the legitimate interests at stake.” 410 U.S. at 155, 93 S.Ct. at 728. In turn, the Court has recognized only two such compelling state interests: the interest in protecting the health of the woman, which becomes compelling at the end of the first trimester; and the interest in protecting potential life, which becomes compelling at the point of viability. Roe at 162-63, 93 S.Ct. at 731—32. The Court has been careful to note, however, that a woman’s right “is not unqualified and must be considered against important state interests in abortion.” Id. at 154, 93 S.Ct. at 727. Accordingly, the state may still enact legislation affecting even the first trimester, but only if two requirements are met: the regulation imposes no non-cte minimis burden on the woman’s exercise of her right, Women’s Medical Center of Providence v. Roberts, 530 F.Supp. 1136, 1144 (D.R.I.1982) (citing Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979)) or, as the Court in Akron articulated the standard, “has no significant impact on” it, 103 S.Ct. at 2492-93, and is justified by an “important state health objective,” id.

Additionally, and at the heart of this case, the state may, without running afoul of the Roe right, enact “governmental spending statute[s],” id., 103 S.Ct. at 2500, n. 33, which decline to commit public funds to abortion. In Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), the Court upheld Connecticut’s decision to withhold Medicaid funds for medically unnecessary abortions. With the caveat that its decision “signalled] no retreat from Roe or the cases applying it,” 432 U.S. at 475, 97 S.Ct. at 2383, the Court reasoned that while states are not free to interpose obstacles to a woman’s protected decision:

[t]he Connecticut regulation places no obstacle — absolute or otherwise — in the pregnant woman’s path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut’s decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The state may have made childbirth a more attractive alternative, thereby influencing a woman’s decision, but it has imposed no restriction on access to abortions that was not already there.

Id. at 474, 97 S.Ct. at 2382-83.

The same reasoning was applied four years later in Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), where the Court extended Maher to hold that the federal government may withhold Medicaid funds for even medically necessary abortions.

1. The Health Insurers’ Prohibition

The plaintiffs argue that the health insurers’ prohibition unconstitutionally burdens the right of abortion by interfering with a woman’s ability to insure against the risk of abortion, which in turn adds cost and delay to the procedure. Defendants argue that the statute represents a policy choice to encourage childbirth over abortion — a choice they claim is protected by Maher and Harris. Defendants liken private insurance payments to public funds in that the “consuming public” essentially funds all insurance through “risk spreading.” Def. Memo, 5, 7, n. 7. Plaintiffs counter that the public funding decisions are inapposite to a state-imposed restriction on “the ability of private persons and groups to enter into private insurance contracts with private insurance companies.” PI. Reply Memo, 4. Whether the health insurers' prohibition is constitutional must, accordingly, turn on the meaning which may fairly be given Maher and Harris.

The core principle animating the funding cases is the distinction drawn by the Court between affirmative government action in burdening the exercise of the abortion right, and government inaction in declining to remove existing burdens on the right. In articulating this principle, the Harris court explained:

although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category. The financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency....
448 U.S. 297, 316, 100 S.Ct. 2671, 2688.

Thus, while teaching that a state is not constitutionally compelled to pay to remove financial burdens it did not impose, the cases clearly gave no license to the converse, the idea that government is free to create financial obstacles to abortion.

Thus, viewed, the public funding cases provide the state with no refuge from constitutional scrutiny of the health insurers' prohibition. The health insurers’ prohibition has, on its face, nothing to do with the question whether public funds shall subsidize abortions. Rather, the statute imposes a surcharge on women wishing privately to insure against the risk of abortion. The state’s imposition of this surcharge on privately financed insurance is precisely the sort of affirmative “obstacle” which Maher and Harris stated the government was prohibited from creating. Indeed, in its holding, the Maher court relied heavily on the fact that a woman seeking an abortion would “continue as before to be dependent on private sources” for the required funds. Id. Yet, here, Rhode Island purports to restrict access to the very private funds on which the woman is supposed to rely. In a recent ruling striking down a Pennsylvania statute nearly identical to the Rhode Island health insurers’ prohibition, the Third Circuit recognized that such a restriction constitutes an impermissible, state-imposed obstacle to abortion:

The state generally need not commit public funds to abortion, and may in this respect choose childbirth over abortion as a matter of policy____ Pennsylvania has gone further in favoring childbirth over abortion, and has imposed a requirement on private insurers to issue policies that do not cover abortions and that cost less than policies which do cover them. This requirement adds an additional barrier to a woman’s access to an abortion and is unconstitutional.
American College of Obstetricians and Gynecologists v. Thornburgh, 737 F.2d 283, 303 (3rd Cir.1984) (citations omitted) (emphasis in original).

Like Pennsylvania, Rhode Island has attempted to translate the limited MaherHarris public funding doctrine into carte blanche to legislate so as to discourage abortion. Were states free to legislate so broadly to discourage abortion, Roe would not doubt meet a swift demise. On the contrary, the Akron decision, in reaffirming Roe, rejected the defendant’s premise and made plain that any statute, other than a “governmental spending statute,” 103 S.Ct. at 2500, note 33, that adds cost and delay to the abortion procedure will not survive if it has any significant impact on the abortion right, unless justified by a compelling state interest. 103 S.Ct. at 2495, 2503 (striking down a second trimester hospitalization and 24 hour waiting period requirement as impermissibly adding cost and delay).

Applying the Akron analysis, I conclude that the insurers’ prohibition must be subjected to strict scrutiny. Insofar as the statute applies to all three trimesters, Stip. II, ¶ 28, it must be judged by the strict standard of review applicable to the first. Women’s Medical Center of Providence v. Roberts, 530 F.Supp. 1136, 1144 (D.R.I.1982). Further, the restriction will burden, in that it will unquestionably have a “significant impact” on, many women’s right to choose abortion. The record states, and defendants concede, that solely as a result of the enforcement of the statute, some women who wish to terminate their pregnancies will be deterred from, or at least delayed in, doing so. Defendants further concede that medically unnecessary delay is detrimental to women’s health, and that deterrence due to financial inability may likewise be detrimental to women’s health. The uncontroverted affidavit of plaintiff Dr. Lynn Lowe confirms and explores these facts. Defendants apparently consider these impacts irrelevant to the statute’s constitutionality because the same impacts were present in the public funding cases. Because I have determined that those cases do not apply to a statute which restricts access to private funds, I must reject this argument. I hold, therefore, that the impacts stipulated by the parties are sufficiently “significant” to require that the statute bear strict scrutiny. I hold further that neither of the two compelling state interests thus far recognized by the Supreme Court — the interest in maternal health after the first trimester and the interest in protecting potential human life once the fetus is viable — has been or could be adduced in support of the health insurers’ prohibition. Indeed, its stated objective — to discourage abortions and encourage childbirth — is, standing alone, an impermissible state objective outside the limited government spending context. The health insurers’ prohibition is, therefore, unconstitutional.

2. The Municipal Prohibition

Plaintiffs concede that under the authority of Maher and Harris, Rhode Island may decline to use its own funds to provide its own employees with abortion benefits. They likewise concede that each municipality could itself decide whether to use its own funds to provide its own employees with abortion benefits. Plaintiffs argue strenuously, however, that Rhode Island has gone beyond Maher and Harris in legislatively compelling the municipalities to withhold benefits for the excluded abortions. Defendants respond that under state law, their authority over municipalities in the area of education and in matters of statewide import is plenary, and that, therefore, plaintiffs have identified a distinction without a difference. The municipalities agree.

To the extent that defendants characterize this question as a state law issue, they are incorrect. For plaintiffs freely concede, as they must, that the Rhode Island Constitution unquestionably vests in the General Assembly the power to legislate in matters of statewide application, R.I. Constitution, Art. IV, §§ 2, 10, see State v. Krzak, 97 R.I. 156, 196 A.2d 417 (1964), to “act in relation to the property, affairs and government of any city or its own town by general laws which shall apply alike to all cities and towns,” R.I. Constitution Art., XXVIII, § 4, see Nugent v. City of East Providence, 103 R.I. 518, 238 A.2d 758 (1968), and to exercise sole legislative responsibility in the field of education, R.I. Constitution, Art. XII, see Brown v. Elston, 445 A.2d 279 (R.I.1982). Just as there was no question that the General Assembly was vested with the power, under state law, to enact the health insurers’ prohibition, so there is no question here that the Assembly has the state law power to enact the municipal prohibition. Properly characterized, the question here, as with the health insurers’ prohibition, is whether the state has exercised its broad legislative powers consistent with the strictures of the federal Constitution.

The federal constitutional question whether a state may prohibit its municipalities from using municipal funds to provide municipal employees with insurance benefits covering abortion appears to be a question of first impression. No case cited by the parties, nor discovered by the court, has applied the Supreme Court’s prior public funding cases to a state legislative scheme compelling separate governmental entities to withhold funds, nor to a scheme involving employee benefits rather than public welfare subsidies. Accordingly, in resolving this difficult issue, I must look directly to Maher and Harris to determine whether the rationale invoked in those cases applies equally to the subject.legislation.

As I discussed with respect to the health insurers’ prohibition, the linchpin in the Court’s reasoning was the distinction between the state’s creation of an obstacle to abortion, which is impermissible under the Constitution, and the state’s refusal to remove an existing obstacle, which is not constitutionally impermissible. The facts surrounding the municipal prohibition indicate that, as with the health insurers’ prohibition, the state has itself created the financial obstacle.

The employer involved here, a school committee, is unquestionably a separate entity from the state. For federal constitutional purposes, local governmental units are frequently considered bodies separate and distinct from the state. See Mount Healthy Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977) (school board not accorded Eleventh Amendment immunity enjoyed by state); Moor v. County of Alameda, 411 U.S. 693, 721, 93 S.Ct. 1785, 1801, 36 L.Ed.2d 596 (1973) (county considered “person” for purposes of diversity jurisdiction, while state is not). Moreover, undertaking the analysis utilized in Mount Healthy and Moor, looking to the state law attributes of the local body to determine whether the state and local entities should be considered distinct, it is clear that the defendant school committee is a separate entity. As the Rhode Island Supreme Court has explained:

the cities and towns, through their school committees, perform a state function based upon a delegation of power from the General Assembly. Thus, the school committees, although exercising a portion of the state’s power over education, are, nonetheless, municipal bodies, and their employees, including public school teachers, are municipal employees ... school committees are not state agencies; they are municipal bodies acting as agents for the state in that they exercise state power that has been delegated to them by the state.
Cummings v. Godin, 377 A.2d 1071, 1073 (R.I.1977); accord Brown v. Elston, 445 A.2d 279, 285 (R.I.1982).

To note that the school committee is a separate entity for purposes of federal (and state) law is not to suggest that the state does not exercise sovereign powers over such entities under state law. As I have noted, it is beyond gainsaying that under state law, the state exercises supreme responsibility in the arena of education. See R.I. Const.Art. XII. Rather, the separate character of the entities is, in my judgment, critical in deciding whether the state has impermissibly created an obstacle to abortion within the meaning of Maher and Harris. For what the state has done through the municipal prohibition is legislatively to withdraw from the school committee a portion of the power it had delegated to the committee. The parties fully agree that, absent this legislation, the school committees had no plan to eliminate the benefits in question. Stip. Ill, ¶ 13(f). The parties further agree that, absent this legislation:

The State of Rhode Island’s approval, authority or permission is not necessary before a school committee or municipality within the State of Rhode Island can make employment decisions as to: (a) hiring and selection of employees; (b) salary; (c) fringe benefits; (d) work assignments; (e) other terms and conditions of employment; (f) duration of employment; (g) discipline of employees; (h) termination of employees; (i) collective bargaining and entry into collective bargaining agreements with certified bargaining representative of employees. Stip. Ill, 11 25.

Insofar as the statute would withdraw from the school committee discretion otherwise allocated to it to fix wage and benefit packages, it is similar to the health insurers’ prohibition, in which the state sought to withdraw from all health insurers the discretion they normally enjoy in setting health insurance premium rates. As I concluded with respect to the health insurers’ prohibition, I conclude here that this exercise of the state’s legislative power compels a separate entity to restrict or eliminate the availability of insurance covering abortion and, in so doing, creates an “obstacle” to abortion that was not “already there,” Maher, 432 U.S. 464, 474, 97 S.Ct. 2376, 2382.

I recognize that the health insurers’ prohibition reaches private funds, while this statute concerns only “public” funds, and that the two statutes might be constitutionally distinguished on that basis. The record indicates, however, that only municipal funds, and not the state’s own funds, finance the benefits in question. See Stip. Ill, H 23. Nothing in Maher or Harris suggested that a state could, consistent with the Constitution, decree that no public funds, controlled by any entity, could be spent for abortion-related uses. Indeed, those decisions spoke of the “allocation” of funds, suggesting that the funding prerogative enjoyed by the state was, by definition, confined to those funds which it typically “allocated.” Moreover, in Maher and Harris, the public funds in question were to be used for public subsidy of abortions through welfare assistance programs. Here, the funds are used to remunerate employees for services rendered. Nothing in Maher or Harris indicated that the state could, under color of those decisions, dictate to separate, governmental employers that they must, in effect, reduce the wage-benefit packages of only those employees who wish to exercise their right to abortion. Yet upholding the municipal prohibition would uphold just such a state edict.

Accordingly, I hold that Rhode Island has created an obstacle to abortion that was not “already there.” Maher, supra, 432 U.S. at 474, 97 S.Ct. at 2382. The state has, therefore, exceeded the limits of Maher and Harris by legislatively compelling separate governmental employers to exclude abortion benefits. Accordingly, the statute must be subject to the scrutiny mandated by Roe v. Wade and its progeny. Because the statute affects all three trimesters, see Women’s Medical Center v. Roberts, supra, strict scrutiny must be applied to it. Strict scrutiny is warranted, in any event, because, for the same reasons set forth with respect to the health insurers’ prohibition, the impact of the statute on the abortion rights of female employees is sufficiently “significant” to trigger strict scrutiny. Indeed, the impact is unquestionably more significant here because this statute flatly bans insurance coverage for abortions, rather than merely imposing a surcharge on or restricting the availability of the coverage — as the health insurers’ prohibition does. I hold further that neither of the two compelling interests recognized by the Supreme Court are present here. Accordingly, the municipal prohibition is unconstitutional.

V. CONCLUSION

There being no genuine issue as to any material fact, plaintiffs are entitled to summary judgment as a matter of law on the ground that both R.I.G.L. § 27-18-28 and R.I.G.L. § 36-12-2.1, insofar as it applies to municipalities, violate the First, Fourth, Ninth and Fourteenth Amendments to the United States Constitution. I incorporate into this judgment my prior temporary restraining orders and rule that the defendants shall be permanently enjoined, in all the respects enumerated in those orders, from enforcing the statutes.

An Order will be prepared accordingly.

      . R.I.G.L. § 27-18-28 provides:

        Health Insurance Contracts — Abortion.—No health insurance contract, plan or policies here and after delivered or issued for delivery in the state shall provide coverage for induced abortions (except where the life of the mother would be endangered if the fetus were carried to term or where the pregnancy resulted from rape or incest) except by an optional rider for
      which there must be paid an additional premium. This section shall be applicable to all contracts, plans or policies of:
      (a) All health insurers subject to this title; and
      (b) All group and blanket health insurers subject to this title; and
      (c) All non-profit hospital, medical, surgical, dental and health service corporations; and

        (d) All health maintenance organizations; and
      (e) Any provision of medical, hospital, surgical and funeral benefits and of coverage against accidental death or injury when such benefits or coverage are incidental to or part of other insurance authorized by the statutes of this state.
      Nothing contained herein shall be construed to pertain to insurance coverage for complications as the result of an abortion.

      . R.I.G.L. § 36-12-2.1 provides:

        Health Insurance benefits — Coverage for abortions excluded. — The State of Rhode Island or any city or town shall not include in any health insurance contracts, plans or policies covering employees any provision which shall provide coverage for induced abortions (except where the life of the mother would be endangered if the fetus were carried to term, or where the pregnancy resulted from rape or incest). This section shall be applicable to all contracts, plans or policies of:
      (a) All health insurers subject to title 27; and
      (b) All group and blanket health insurers subject to title 27; and
      (c) All non-profit hospital, medical, surgical, dental and health service corporations; and
      (d) All health maintenance organizations; and
      (e) Any provision of medical, hospital, surgical and funeral benefits and of coverage against accidental death or injury, when such benefits or coverage are incidental to or part of other insurance authorized by the statutes of this state.
      Provided, However, That the provisions of this section shall not apply to benefits provided under existing collective bargaining agreements entered into prior to [June 30, 1982].
      Nothing contained herein shall be construed to pertain to insurance coverage for complications as the result of an abortion.
      As originally enacted, the statute barred insurance coverage for induced abortions "except those necessary to prevent the death of the mother” or in cases of rape or incest. Plaintiffs’ original complaint, filed before the statute was amended, sought injunctive relief against the statute in its entirety and the original temporary restraining order issued by this Court so enjoined the statute. After the provision was amended in 1983, plaintiffs dropped their claim against the statute's prohibition of abortion coverage for state employees and the Court's restraining order was amended appropriately. The parties agreed at that time that the orders restraining enforcement of both the municipal prohibition and the health insurers’ prohibition would remain in effect until further order of the Court.

      . Lincoln, in its memorandum, moves this Court to dismiss it and the other school committees as improper parties defendant. Arguing that municipal employers must follow the dictates of state law, Lincoln asserts that liability for any infirmity in the abortion benefits prohibition may not properly be entered against the municipalities. Plaintiffs respond that the municipalities are named as defendants only with respect to the Title VII claim, and that the constitutional challenge is directed solely against the Insurance Commissioner.
      I conclude that the school committees are proper defendants in the Title VII claim and therefore deny Lincoln’s motion to be dismissed. "(T)he scheme of Title VII provides that employers are exempted from liability under state laws which require the doing of acts which constitute unlawful employment practices ... not that reliance on state statutes resulting in discriminatory practices bars Title VII liability ...” Williams v. General Foods Corp., 492 F.2d 399, 404 (7th Cir.1974) (citations omitted); see 42 U.S.C. § 2000e-7. Accordingly, employers who engage in discriminatory practices pursuant to state statute may be held liable under Title VII. Id.; Rosenjeld v. Southern Pacific Co., 444 F.2d 1219 (9th Cir.1971). If the state provision upon which an employer relies is held to violate Title VII, it will be deemed superseded by federal law. See 42 U.S.C. § 2000h-4. Thus, if plaintiffs here successfully demonstrate that the school committees will deny or have denied them abortion benefits pursuant to a Rhode Island law which violates Title VII, the school committees may be properly enjoined from continuing that practice, and the statute will be superseded by Title VII. Further, where, as here, the state is also a defendant and has assumed, pursuant to the parties' agreement, principal responsibility in defending the validity of the statute, no inequity will result from compelling the municipal employers to remain as defendants.

      . The Pregnancy Discrimination Act of Title VII, 42 U.S.C. § 2000e(k) provides:
      (k) The terms "because of sex” or "on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

      . Under the plan proposed by Blue Cross, the cost of comprehensive health insurance purchased without the abortion rider would be reduced by 56 cents per month for family memberships and by 41 cents per month for individuals. RIGHA proposed reductions of 14 cents per month for family memberships and 6 cents per month for individuals. Stip. II, ¶ 15(a) — (b).

      . For plaintiffs Cooley and Colt, the annual loss would be between $1846.08-$2024.04, respectively. Stip. II, ¶¶ 19-20.

      . The PDA was enacted by Congress in 1978, expressly to overturn the Supreme Court's ruling in Gilbert v. General Electric Co., 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). Gilbert held that employer disability plans declining to pay benefits for pregnancy and maternity-related disabilities did not constitute sex discrimination prohibited by Title VII. See generally Newport News Shipbuilding and Drydock Co. v. EEOC, 462 U.S. 669, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983) (reviewing legislative history of the PDA).

      . The cases plaintiffs cite in support of their preemption argument involve state statutes which, on their face, conflict with Title VII’s most fundamental objective of prohibiting discrimination against protected classes. See, e.g., Rosenfeld v. Southern Pacific Co., 444 F.2d 1219, 1225-26 (9th Cir.1971) (state statute restricts physical labor which female employees may perform); Caterpillar Tractor Co. v. Grabiec, 317 F.Supp. 1304 (S.D.Ill.1970) (state statute restricts overtime hours which female employees may work). There is simply no federal statutory basis for finding a parallel inconsistency here.

      . As I discuss more fully with respect to the constitutionality of the municipal prohibition, all the parties agree that the state is empowered, under Rhode Island law, to direct its towns or cities to make or withhold payments to municipal employees, if the legislative directive applies equally to all towns and cities. No claim is made by any party that any principle of local government law, including so-called "home rule,” bars such a statutory mandate.

      . The Court’s decisions in Maher and Harris have been the subject of vigorous debate. Numerous commentators have questioned the soundness of the holdings. See, e.g., Kreimer, Allocational Sanctions; The Problem of Negative Rights in a Positive State, 132 P.Pa.L.Rev. 1293 (1984) (reviewing literature); Perry, Why the Supreme Court was Plainly Wrong in the Hyde Amendment Case: A Brief Comment on Harris v. McRae, 33 Stan.L.Rev. 1113 (1980); Goldstein, A Critique of the Abortion Funding Decisions: On Private Rights in the Public Sector, 8 Hastings Const.L.Q. 313 (1981). Indeed, every state court that has considered the Medicaid abortion funding issue under a state constitution since Harris has come to the opposite conclusion. See Kreimer, supra, at 1375, citing Committee to Defend Reproductive Rights v. Myers, 29 Cal.3d 252, 625 P.2d 779, 172 Cal.Rptr. 866 (1981); Moe v. Secretary of Admin, and Fin., 382 Mass. 629, 417 N.E.2d 387 (1981); Right to Choose v. Byrne, 91 N.J. 287, 450 A.2d 925 (1982); Planned Parenthood Ass'n v. Dep’t of Human Resources, 63 Or.App. 41, 663 P.2d 1247 (1983); Fischer v. Dep't of Pub. Welfare, — Pa.Cmwlth. —, 482 A.2d 1137 (1984), reh’g granted en banc, argued May 1, 1984.

      . The burden imposed by the health insurers’ prohibition is particularly egregious in light of the plans proposed by Blue Cross and RIGHA to implement the statute. While the supplementary premium required is relatively small, more important is the veto feature of the plan. Any employer could veto the rider for all employees covered by the employer’s policy. Any single member of a non-employer group could likewise veto the rider for an entire group plan. Women seeking to retain coverage in these circumstances would be compelled to leave their group plans — at a cost of up to $2000 annually— and self-finance an entire health insurance package. If a woman elected to remain in a non-rider group plan, but had to self-finance an abortion, the cost would range from $185-11000 in Rhode Island. Either way, the financial consequences would plainly be serious. See Akron, 103 S.Ct. at 2495 (added cost of $450-$500 to comply with second trimester hospitalization requirement constitutes significant limit on ability to obtain abortion).
      In addition to the veto feature, Blue Cross’ plan would also make the rider unavailable to single women. Here, women would be put to the choice whether to leave their plan and change to RIGHA’s wholly different health maintenance approach. In so choosing, a woman would lose the freedom she had under Blue Cross to select her own doctor and facility.
      The plans, thus, impose numerous burdens on the exercise of the abortion right. Accordingly, although I hold the health insurers' prohibition unconstitutional on its face, I also hold that the terms of the insurers’ plans render the statute unconstitutional as applied through those plans.

      . Because I have ruled the statute unconstitutional as a burden on the right to choose to terminate a pregnancy, I need not reach the equal protection question.


author: EDELSTEIN, District Judge:

text:
    UNITED STATES of America v. Donald PAYDEN, et al., Defendants.
    No. S 84 Cr. 566 (DNE).
    United States District Court, S.D. New York.
    Dec. 3, 1984.

      Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., John K. Carroll and . Stuart E. Abrams, Asst. U.S. Attys., New York City, for the U.S.
    Robert M. Siméis, P.C., New York City, for defendant Donald Payden.
   OPINION AND ORDER

EDELSTEIN, District Judge:

This motion involves- the newly enacted Bail Reform Act of 1984, part of the Comprehensive Crime Control Act, 18 U.S.C. § 3141 et seq. (the “Act”) which was signed into law on October 12, 1984. Specifically, Defendant Donald Payden (“Payden”) challenges aspects of the pretrial detention provisions. 18 U.S.C. § 3142.

Defendant Payden was arrested on August 3, 1984 and bail was set in the amount of $250,000. Defendant has not yet posted that bail. The original indictment was filed on August 13, 1984 and the defendant was arraigned on August 23, 1984. The original indictment charged Payden and another defendant with conspiracy to violate the federal narcotics laws, in violation of 21 U.S.C. § 846, and distribution and possession with intent to distribute heroin in violation of 21 U.S.C. § 841. A superseding indictment was filed on October 10, 1984 and the defendant was arraigned on that indictment on October 17, 1984. The superseding indictment added a third defendant and further charged Payden with organizing and supervising a continuing criminal enterprise, in violation of 21 U.S.C. § 848. On October 31, 1984, the government moved this court to detain preventively defendant Payden under the newly enacted bail provisions. On October 31st the court scheduled a hearing and gave the defendant and the government an opportunity to research the issues raised by the new statute and its application to defendant Payden. A hearing was conducted on November 16, 1984. The defendant and the government filed post-hearing briefs.

The defendant raises a number of arguments against both the constitutionality of the act and the application of the act to this particular situation. First, Payden contends that the application of the Bail Reform Act to him violates the prohibition against ex post facto laws. Second, Pay-den contends that because the government did not move to apply the statute on his first appearance before the court, as provided by Section 3142, pretrial detention should be denied. Third, defendant contends that the Bail Reform Act is unconstitutional because it lacks adequate procedural safeguards and is vague. Defendant further contends that the period of his pretrial detention would be protracted in violation of the “excessive bail” clause of the Eighth Amendment. Finally, Payden contends that should the Act be found to apply in this case, the government has not satisfied its burden, under the terms of the statute, of proving that no condition or combination of conditions of release will reasonably assure the defendant’s presence at trial and the safety of the community.

EX POST FACTO

Defendant Payden contends that application of the statute to him violates the prohibition against ex post facto laws because the law in effect at the time of the alleged offense, “from on or about January 1, 1979, and continuously thereafter up to and including the date of the filing of this Indictment,” permitted bail in the defendant's situation.' This objection to the application of the statute is denied.

The ex post facto prohibition applies to “any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 4 Wall. 277, 325-26, 18 L.Ed. 356 (1867)). The ex post facto prohibition also applies to laws which alter substantial rights. Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925); Simpson v. Wyrick, 527 F.Supp. 1144, 1146 (W.D.Mo.1981). It is not an ex post facto violation “if the change is merely procedural, and does ‘not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt.’ ” Weaver v. Graham, supra, 450 U.S. at 29 n. 12, 101 S.Ct. at 964 n. 12 (quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884)).

The first step is .determining whether the statute is punitive. In Schall v. Martin, — U.S. —, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984), the Supreme Court established a test for determining whether a statute is punitive or regulatory. The Court in Schall held that pretrial detention of accused juvenile delinquents under the New York Family Court Act is regulatory, not punitive. Under Schall, the test for determining whether pretrial detention is punitive or regulatory is “ ‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]’.” Id. at 2413 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-89, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963)). See also Bell v. Wolfish, 441 U.S. 520, 538, 99 S.Ct. 1861, 1873, 60 L.Ed.2d 447 (1979) (“A Court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some mother legitimate governmental purpose.”).

The pretrial detention provisions of the Bail Reform Act do not prescribe punishment and are therefore not violative of the first two types of ex post facto prohibitions. The Act “is not intended to promote the traditional aims of punishment such as retribution or deterrence, but rather ... ‘to curtail reasonably predictable conduct, not to punish for prior acts.’ ” S.Comm. on the Judiciary, Comprehensive Crime Control Act of 1983, S.Rep. No. 225, 98th Cong., 1st Sess. 8 (1983) [hereinafter cited as Senate Crime Control Report]. Moreover, pretrial detention authorized by the statute is not excessive in relation to this “alternative purpose” of curtailing reasonably predictable future conduct. Pretrial detention can only be ordered if the government shows by clear and convincing evidence that no condition or combination of conditions of release will reasonably assure the safety of the community and the defendant’s presence at trial. In other words, before ordering detention, the court is required to find that detention is the only method available to achieve Congress’s “alternative purpose” of curtailing possible future conduct. Thus, under the Supreme Court’s decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Act is “a constitutionally permissible regulatory, rather than penal, sanction,” Senate Crime Control Report, supra, at 8, accord United States v. Edwards, 430 A.2d 1321, 1331-33 (D.C.App.1981) (en banc), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982), and does not violate the first two types of ex post facto prohibitions.

The Act does not affect the elements of the offense that need to be proved by the government nor does the Act limit any defense available to the defendant and therefore is not an ex post facto law in that regard. See Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2297, 53 L.Ed.2d 344 (1977). The ex post facto provisions in the Constitution were not intended “ ‘to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.’ ” Id. at 293, 97 S.Ct. at 2298 (quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925). Thus, even though the Act may work to the disadvantage of the defendant, it is not prohibited by the ex post facto provision. Therefore, the court finds that the application of the pretrial detention statute to defendant Payden is not violative of the ex post facto provision of the Constitution.

FAILURE TO MOVE TO APPLY THE ACT ON DEFENDANT’S FIRST APPEARANCE

Defendant Payden also objects to the application of the pretrial detention provisions because the government did not move to apply the Act on his first appearance before the court. Defendant was arraigned on the superseding indictment on October 17, 1984 and the government moved to detain the defendant under the Act on October 31, 1984. Payden contends that this is a procedural defect which would preclude application of the Act to this case. Payden further contends that the provision relating to the application of the Act on a defendant’s first appearance indicates that Congress did not intend the Act to be applied to those in custody at the time the Act became effective. The relevant portion of the statute provides:

The hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance.

18 U.S.C. § 3142(f). Thus, the statute does require that a hearing be held on the defendant’s first appearance. This is not, however, the only situation that a hearing may be conducted under the Act. The statute provides for the amendment of a release order. Id. § 3142(c). See also id. § 3148(b) (revocation of release on finding probable cause to believe that condition of release has been violated). Congress contemplated that a court would conduct hearings in these situations and not only on the defendant’s first appearance. S.Comm. on the Judiciary, The Bail Reform Act of 1983, S.Rep. No. 147, 98th Cong., 1st Sess. 43 (1983) [hereinafter cited as Senate Bail Reform Report]; Senate Crime Control Report, supra, at 16. Thus, a hearing held two weeks after the initial appearance in front of the court on the superseding indictment is not beyond the scheme established by the statute and does not preclude the application of the pretrial detention provisions to a person already in custody or released on bail at the time the Act became effective.

The situation in this case is within the framework established by the new Act. The continuance of the bail may be considered as a release order, because it establishes a condition of release permitted under the Act. 18 U.S.C. § 3142(c)(2)(E). Thus, the hearing was conducted to amend the release order.

The authorization to amend the release orders and to conduct hearings is “based on the possibility that a changed situation or new information may warrant altered release conditions.” Senate Crime Control Report, supra, at 16. The new information that the court is considering now as compared to when the initial bail was set and when the defendant was arraigned on the superseding indictment relates to the new factors contained in the new Act. The Act permits a court to consider factors that were not to be considered under the old bail statute, specifically the suspect’s dangerousness. Senate Bail Reform Report, supra, at 21-22. The “eyes of the court” were opened to these “new” facts when it became aware of the new statute. Thus, the contention that a hearing cannot be held except on a defendant’s first appearance is not correct. Defendant Payden’s objection to the application of the pretrial detention procedure to him based on this contention is denied.

EXCESSIVE PERIOD OF DETENTION

Defendant objects to the application of the Act to him because of the possibility of a protracted period of detention while awaiting trial. Congress noted that the Speedy Trial Act would “assure that a person is not detained pending trial for an extended period of time.” Senate Crime Control Report, supra, at 22 n. 63. The defendant has waived the right under the Speedy Trial Act to a trial within 70 days from the later of the filing date of the indictment or the date of the defendant’s appearance before a judicial officer. 18 U.S.C. § 3161(c)(1). The waiver was accepted by the court based on a request by the defendant to be given an opportunity to listen to the numerous (nearly 3,000) tape recordings that may be introduced by the government at trial.

Defendant refers the court to the opinion in United States v. Edwards, 430 A.2d 1321 (D.C.App.1981) (en banc), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982). The court in Edwards upheld the constitutionality of the District of Columbia pretrial detention statute. The D.C. statute formed the basis for the pretrial detention statute at issue here. Senate Crime Control Report, supra, at 8. The court in Edwards stated:

Significantly, pretrial detention is closely circumscribed so as not to go beyond the need to protect the safety of the community pending the detainee’s trial. Such detention is not to exceed 60 days, by which time either the detainee must be brought to trial, or bail must be set.

Edwards, supra, 430 A.2d at 1333. Defendant contends that his detention would continue beyond the sixty day period discussed in Edwards, and thus the rationale for upholding the D.C. statute is inapplicable to the new Act. The court rejects this contention. The D.C. statute provides exceptions to the sixty day limit of detention. Specifically, the period may be extended “at the request of the [defendant]” and includes motions for continuances by the defendant. Edwards, supra, D.C.App., 430 A.2d at 1363 (reprint of D.C.Code 1973). The waiver of the Speedy Trial Act by the defendant is similar to the exceptions to the D.C. Code upheld in Edwards. Thus, the circumscription on the pretrial detention found to be significant by the court in Edwards is present under the new Act through the Speedy Trial Act.

There is one slight difference between the D.C. provision and the new Act. The Speedy Trial Act results in a seventy day limit on detention as compared to sixty days under the D.C.Code. The ten day difference between the D.C.Code and the new Act is not significant.

Because of the complex .nature of this case and the breadth of discovery, involving approximately 3000 tapes relating to Payden’s alleged criminal conduct, pretrial detention in this case could last several months. Defendant contends that despite his waiver of the Speedy Trial Act’s protections, this potential period of incarceration is excessive. This contention is rejected.

To allow Payden to be released on the basis of his waiver of the Speedy Trial Act would undermine the purpose of the new Act. Further, it would create a paradox by allowing those alleged to have committed the most serious crimes to be released while those committing simple crimes could be detained based on the complexity and resulting time needed to prepare for trial. In this case, Count two of the superseding indictment charges that Payden was the leader of a “continuing criminal enterprise,” involving at least five other persons, which was organized and conducted for the purpose of distributing narcotics for substantial profit. Payden is subject to life imprisonment on this count alone if convicted. It is for just this sort of serious drug charge that Congress thought pretrial detention particularly appropriate. See, e.g., Senate Crime Control Report, supra, at 13, 23-24. See also 18 U.S.C. § 3142(g)(1) (equating “crimes of violence” with crimes “involvpng] a narcotic drug”). Yet, such offenses, by their very nature, often require months of discovery. Once the court finds probable cause to believe that a defendant has orchestrated a complex criminal narcotics enterprise, and clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of the community and the defendant’s appearance at trial, the government’s interest in protecting the safety of the community against continued drug trafficking by the defendant outweighs the defendant’s interest in not being detained longer than seventy days if the defendant seeks a waiver of the Speedy Trial Act. It would be anomalous if courts could not detain those who pose the greatest danger to the community simply because their criminal actions require more time to defend than that of the ordinary “small-time” criminal defendant. The defendant’s objection to the application of the statute based on the period of pretrial detention is rejected.

VAGUENESS

Defendant asserts that the statute is unconstitutional because it is impermissibly vague. As the Court of Appeals has stated “[cjhallenges to federal statutes on the ground of vagueness rest on the principle that a person should be free to plan his or her behavior based upon laws which are clear enough to afford one a reasonable opportunity to know what is permitted and what is proscribed.” Textile Workers Pension Fund v. Standard Dye & Finishing Co., 725 F.2d 843, 855 (2d Cir.1984). The statute is not tested in the abstract, rather it is examined in light of the facts of this case. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n. 7, 102 S.Ct. 1186, 1191 n. 7, 71 L.Ed.2d 362 (1982).

The defendant contends that the “statute fails to give notice of the conduct which will lead to pre-trial detention.” Defendant’s Preliminary Memorandum of Law Concerning Pre-Trial Detention at 4-5. This is clearly incorrect. The statute states that a detention hearing will be conducted upon motion of the government in a case that involves, among others, “an offense for which a maximum term of imprisonment of ten years or more is prescribed by the Controlled Substances Act (21 U.S.C. 801 et seq.).” 18 U.S.C. § 3142(f)(1)(C). Defendant is charged with three counts under the Controlled Substances Act, all of which carry at least a ten year maximum period of imprisonment. Thus, the statute clearly sets forth those offenses that will give rise to a detention hearing.

The “void for vagueness” doctrine is usually applied to situations where a statute does not give notice of the type of behavior that is prohibited. The new bail statute does not prohibit conduct, rather it establishes a framework for a judge to detain an individual based on a prediction of possible future conduct. A vagueness claim is therefore not appropriate for this statute.

Finally, defendant contends that the statute does not define the “danger” to which it applies. While the statute does not define the danger, it specifies a number of factors to be considered by the court in ordering detention. The defendant’s objection based on vagueness is rejected.

PROCEDURAL SAFEGUARDS

Defendant challenges the standard to be used in determining whether the acts alleged in the indictment, in fact, occurred. Payden contends that because the Act does not require the judicial officer to find that there is a “substantial probability” that the defendant committed the crime charged, the Act is unconstitutional. This contention is rejected.

It is well settled that significant restraints on liberty may be imposed upon a showing of probable cause. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 119-21, 95 S.Ct. 854, 865-66, 43 L.Ed.2d 54 (1975) (fourth amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following pretrial arrest); Morrissey v. Brewer, 408 U.S. 471, 485-88, 92 S.Ct. 2593, 2602-03, 33 L.Ed.2d 484 (1972) (detention of parolee for reasonable time before revocation hearing permissible based on a finding of probable cause or reasonable grounds to believe that arrested parolee has violated parole condition). A finding of substantial probability, “equivalent to the standard required to secure a civil injunction — likelihood of success on the merits,” Edwards, supra, 430 A.2d at 1339, has never been required. Cf. Schall v. Martin, — U.S. —, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) (statute providing for pretrial detention of juveniles which did not include a requirement that substantial probability exist that juvenile committed the crime charged, upheld). Congress specifically considered and rejected such a requirement, finding that any risk of detaining defendants who are ultimately acquitted is outweighed by the practical problems posed in meeting the substantial probability requirement so early in the criminal proceedings. See Senate Bail Reform Report, supra, at 45.

Defendant notes that the D.C. statute at issue in Edwards required a finding of substantial probability that the defendant committed the charged offense. However, the court in Edwards indicated that a requirement of probable cause would have been sufficient. Edwards, supra, 430 A.2d at 1339. Moreover, the Department of Justice argued before Congress that “the burden of meeting the ‘substantial possibility’ requirement of the District of Columbia’s pretrial detention statute was the principle reason cited by prosecutors for the failure, over much of the last ten years, to request pretrial detention hearings under the statute.” Senate Bail Reform Report, supra, at 45. The Act contains ample procedural safeguards; a requirement of substantial probability is unnecessary and would frustrate the purposes of the Act.

Moreover, under the Act, a finding of probable cause is merely a prerequisite to detaining a defendant; it is by no means sufficient, in and of itself. Under Section 3142(f), if the government establishes probable cause that the defendant committed the crime charged, a rebuttable presumption is established that no condition or combination of conditions will reasonably assure the safety of the community and the defendant’s appearance for trial. This presumption merely shifts the burden of production to the defendant, not the burden of persuasion. United States v. Chimurenga et al., No. 84 Cr. 818 (RLC), slip op. at 13 (S.D.N.Y. Nov. 5, 1984) (Grubin, Mag.). The government is still required to prove by clear and convincing evidence that detention is warranted. 18 U.S.C. § 3142(f). The defendant is “afforded an opportunity to testify, to present witnesses on his own behalf, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise.” Id. Ultimately, the weight of the evidence against the defendant is just one of several factors to be considered in determining whether any condition or combination of release conditions will secure the defendant’s presence for trial and the safety of the community. 18 U.S.C. § 3142(g).

Furthermore, there is no conflict between the provisions of the Act and the presumption of innocence. The Act specifically provides: “Nothing in this section shall be construed as modifying or limiting the presumption of innocence.” 18 U.S.C. § 3142(j). There is “no merit in the ... contention that consideration of the weight of the evidence contradicts the presumption of innocence in criminal cases. If accepted, this view would lead to the proposition that bail could never be denied until after conviction, a proposition also negated by the Supreme Court in Bitter v. United States, 389 U.S. 15, 16, 88 S.Ct. 6, 7, 19 L.Ed.2d 15 (1967) (dictum).” United States v. Kostadinov, 721 F.2d 411, 413 (2d Cir.1983) (per curiam). Accordingly, defendant’s contention that the statute lacks adequate procedural safeguards is rejected.

APPLICATION OF THE STATUTE

The government established the rebut-table presumption that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community,” 18 U.S.C. § 3142(e), by establishing that there was probable cause to believe that the defendant committed “an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.).” 18 U.S.C. § 3142(e). Thus, the burden of production shifted to the defendant. United States v. Chimurenga et al., No. 84 Cr. 818 (RLC), slip op. at 13 (S.D.N.Y. Nov. 5,1984) (Grubin, Mag.). But see United States v. Aiello, et al., No. S84 Cr. 881, slip op. at 9-14 (S.D.N.Y. Nov. 30, 1984).

The defendant satisfied his burden of production by presenting a proffer regarding his prior record of appearance on bail in a prior criminal action, his ties to the community for over twenty years which includes sharing a home with his parents. The government, however, has introduced evidence and made a proffer that satisfy the court that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community.” 18 U.S.C. § 3142(e).

The statute sets forth the factors that the court is to consider in ordering detention. These factors are:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the-person, including—
(A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, he was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal State, or local law, and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release ____

18 U.S.C. § 3142(g). The court has considered all of these factors.

The defendant is charged with very serious offenses in this case, most notably, the charge under 21 U.S.C. § 848 which carries a life sentence. The prospect of a life sentence surely provides an incentive for a defendant to flee. United States v. Kostadinov, 572 F.Supp. 1547, 1552 (S.D.N.Y.), aff'd, 721 F.2d 411 (2d Cir.1983). Further, the charges involve narcotics which is equated with crimes of violence in the text of the statute itself. 18 U.S.C. § 3142(g)(1).

The weight of the evidence against the defendant is strong. The government introduced transcripts of a number of telephone conversations. These conversations, while they do not refer to the defendant by name, are to be corroborated by an alleged co-conspirator of the defendant. The government also submitted inventory lists of property seized from the residences of the defendant’s alleged co-conspirators. The property included weapons, narcotics and money.

The defendant’s history, while containing some redeeming factors, is decidedly weighted in favor of detention. The defendant has a prior conviction for a narcotics offense. In addition, the conduct charged in the indictment occurred during the parole term of the defendant. The danger posed to the community, should the defendant be released is quite serious. Specifically, the defendant could continue the conduct alleged in the indictment. Congress specifically noted that narcotics related offenses pose a danger to the community. Senate Bail Reform Report, supra, at 46-47 & n. 135; Senate Crime Control Report, supra, at 12-13 & n. 42.

Finally, defendant contends that he is not the type of defendant that the Act was intended to apply to. This could not be further from the truth. The defendant quotes portions of the legislative history which states:

[Tjhere is a small but unidentifiable group of particularly dangerous defendants as to whom neither the imposition of stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community or other persons. It is with respect to this limited group of offenders that the courts must be given the power to deny release pending trial.

Senate Crime Control Report, supra, at 6-7. The superseding indictment alleges that the defendant engaged in a continuing criminal enterprise in violation of 21 U.S.C. § 848. A charge under section 848 is not taken lightly, in fact, the attorney for the defendant claimed at the hearing that a charge under section 848 must be approved by the Justice Department. Transcript of Hearing held on November 16, 1984 at 28. This certainly suggests that the defendant is among the small group intended to be detained under the new Act. The legislative history of the Act is replete with references to the application of the Act to those involved with narcotics and in fact states that there is “a presumption that drug traffickers would simply be held without bond under the bill.” Senate Bail Reform Report, supra, at 50 n. 146. Therefore, the court concludes that the defendant is among those who the Act was intended to apply.

The defendant refers to a number of conditions of release which he believes would “reasonably assure the appearance of the person as required and the safety of the community.” 18 U.S.C. § 3142(e). The court finds that no condition or combination of conditions provide sufficient assurance that the defendant will not continue the conduct alleged in the indictment and appear when required. Detention is the only means that will reasonably assure

that the defendant does not continue to pose the danger to the community associated with the distribution of narcotics.

The court finds on considering these factors, taken as a whole, that the government has established by clear and convincing evidence that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community.” 18 U.S.C. § 3142(e). The defendant is therefore ordered committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practicable from persons awaiting or serving sentences or being held in custody pending appeal. The defendant shall be afforded reasonable opportunity for private consultations with his counsel. All prior orders in this action pertaining to the defendant remain in effect.

CONCLUSION

The defendant’s objections to the government’s motion for pretrial detention are denied. The court finds by clear and convincing evidence that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community,” 18 U.S.C. § 3142(e), and the defendant is remanded pending trial.

SO ORDERED.

      . Defendant also challenges the validity of the presumptions established by the statute. The court does not reach the issues regarding the validity of the presumptions.

      . “No ... ex post facto Law shall be passed.” U.S. CONST, art. I, § 9, cl. 3.

      . The statute also provides that the government and the defendant may seek a continuance of the detention hearing. Section 3142(f) provides that "[ejxcept for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion for the attorney for the Government may not exceed three days.” Of course, no motion for a continuance was made at Payden’s arraignment on the superseding indictment, because the statute had only been enacted five days earlier and the government was not yet aware of its applicability. However, if such a motion had been made, either by the defendant or the government, the court would have ruled that there was good cause for the continuance beyond the periods specified in the statute. The parties, as well as the court, needed additional time to familiarize themselves with the provisions of the statute and their applicability to Payden.

      . Bail was not discussed when the defendant was arraigned on the superceding indictment. Even had bail been discussed at the arraignment, it is doubtful that the Act would have been applied because the court was not informed of the contents of the new statute at the time of the arraignment. In fact, a copy of the statute was not provided to the court until a memorandum on the Act dated October 23, 1984 was furnished by the Administrative Offices of the United States Courts. It is suggested that more care be taken to inform the courts prior to the effective date of far reaching legislation such as the Act in question here.

      . The statute states that "[t]he judicial officer may at any time amend his order to impose additional or different conditions of release.” 18 U.S.C. § 3142(c). The statute states only that an amended order may impose "additional or different conditions of release”; the court, however, may also determine that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community,” 18 U.S.C. § 3142(e), and thus order detention.
      This power is clearly granted by the statute. Circumstances may arise under the operation of the statute which warrant detention after the initial release determination has been made. For example, the order of "additional or different conditions" may result in the defendant being unable to meet the additional or different conditions of release. In this instance, the judge must determine that the new conditions are reasonable and necessary to assure the appearance of the defendant and that “there is no available condition of release that will assure the defendant’s appearance. This is the very finding which under section 3142(e), is the basis for an order of detention.” Senate Bail Reform Report, supra, at 42-43. In this situation, the court is to proceed with a detention hearing pursuant to 3142(f). Id. Thus, even though the statute does not specifically provide for an amended order to include detention of the defendant, it is clear from the legislative history and the statutory framework that the court has the authority to do so.

      . See supra note 4.

      . The reason for the requirement that the hearing be held on the defendant’s first appearance before the judicial officer is because defendant will be detained without due process during any period of continuance. See Senate Bail Reform Report, supra, at 48. However, Payden was never incarcerated on the superseding indictment without due process. At his initial arraignment on October 17, 1984, because the new bail provisions were not brought to the attention of the court, bail was not discussed and thus Payden's bail of $250,000.00 which was set in August of 1984 was continued. Defendant suffered no prejudice or deprivation of due process rights from the failure of the hearing to be held on October 17, 1984. Once the court was made aware of the statute’s new provisions, a detention hearing was immediately scheduled. Although Payden has been detained throughout the duration of the hearing and the court’s deliberations, such detention is permissible under the express provisions of Section 3142(f). Accordingly, under the circumstances of this case, the failure of the court to hold a hearing upon the defendant’s first appearance on the superseding indictment does not bar an order of detention.

      . The court is prepared to go to trial when the defendant states that he is ready. The delay here is entirely for the benefit of the defendant.

      . The fact that the statute requires the court to make a prediction as to the defendant’s future behavior does not render the statute unconstitutionally vague. Schall v. Martin, — U.S. —, 104 S.Ct. 2403, 2417-18, 81 L.Ed.2d 207 (1984). "Our cases indicate ... that from a legal point of view there is nothing inherently unattainable about a prediction of future criminal conduct.” Id. at 2417.

      . In Schall v. Martin, supra, the Supreme Court rejected a vagueness challenge to New York's Family Court Act which provides for pretrial detention of juveniles. The statute at issue in Schall did not specify the factors to be considered by the court in determining whether there is a "serious risk” that the defendant, if released, would commit another crime prior to his next court appearance. The Court, nevertheless held that the statute is not unconstitutionally vague. "Given the right to a hearing, to counsel and to a statement of reasons, there is no reason that the specific factors upon which the Family Court judge might rely must be specified in the statute." Schall v. Martin, supra, 104 S.Ct. at 2418. The Act at issue here does specify the factors to be considered in deciding the defendant’s "dangerousness” to the community. Moreover, the Act affords defendants "the right to a hearing, to counsel and to a statement of reasons.” Thus, under Schall, the Act is not unconstitutionally vague.

      . The weight of the presumption is viewed in the light most favorable to the defendant. Judge Duffy disagrees with Magistrate Grubin’s interpretation of the presumptions, United States v. Aiello, et al., No. S84 Cr. 881, slip op. at 9-14 (KTD) (S.D.N.Y. Nov. 30, 1984). Judge Duffy would require the defendant to "show specific facts rebutting the presumption." Id. at 12. The strength of the presumptions would also vary “depending on where the case falls in the spectrum of matters brought to this court under the Narcotics Control Act.” Id. at 13. This court need not reach the issues regarding the presumptions because the decision to detain Payden does not rely on the presumptions. See infra.

      . Probable cause was established pursuant to Rules 4(a) and 5(a) of the Fed.R.Crim.P. There was no evidence presented which would compel the court to reverse the finding of probable cause made at these earlier stages in the judicial process. Moreover, the government submitted evidence at the hearing in the form of transcripts of tape recordings that confirm the earlier findings of probable cause.

      . See supra note 11.

      . This information was submitted in the form of a proffer by the government. A proffer is sufficient unless the court finds that more is needed. The pretrial detention hearing is not a discovery tool for the defendant.

      . Among others, the defendant proposes the use of a third-party custodian (of the defendant’s own choosing), reporting on a daily basis to a designated law enforcement officer, refraining from possessing dangerous weapons, refraining from the use of alcohol, and restrictions on travel.