Maryland's health department does not have the legal authority to continue using state Medicaid funds to pay for nontherapeutic abortions for poor patients. Maryland Attorney General Francis B. Burch ruled today.

Burch said Maryland's Medicaid program only allows abortions that are necessary to protect the health of the patient. There are no provisions for funding of nontherapeutic of "not medically justified abortions," he said.

If Maryland's health secretary intends to continue funding the full range of abortions. Burch said, he will have to draft specific regulations defining how state funds should be used.

No one will be refused the funds immediately under the Burch ruling. The attorney general allowed for a grace period for resolution of the issue.

Burch's ruling thus placed the responsibility for deciding the controversial abortion question on the administration of acting Gov. Blair Lee III, one of Burch's opponents in the Democratic race for governor in Maryland.

When the federal government acted to cut off federal funds for abortions, Lee said he thought the General Assembly probably would have to act on the issue. Asked how he felt personally, he said. "I would hate to see Maryland get into the position where there is one rule for rich women and another one for poor women. I really would." He could not be reached for commentment late today.

"Failure to amend the regulation would leave states exposed to possible litigation and court injunctions against continuation of the present practice of affording full coverage" for abortions. Burch said in an opinion requested by two Maryland legislators.

Burch was asked to issue an opinion after the U.S. Supreme Court ruled in June that state and loval governments are within their rights if they decline to use their Maryland money to pay for abortions.

Last year the state of Maryland spent $1 million in federal and state Medicaid funds to provide abortions for 5,000 poor women. Of that amount, $9 out of every $10 came from federal funds.

Maryland Del. Leo E. Green (D-Prince George's), one of the state legislators who requested the opinion, said he has written Solomon asking him to cut off state funding for nontherapeutic abortions until the legislature could address the issue at its sesssion beginning in January.

"I would have preferred Burch to have said that this is such a grave public policy question that it should have gone to the General Assembly," said Green, who is an antiabortion supporter.

Sixteen states plus the District of Columbia still pay for abortion services to poor women despite a near-total ban on federal spending through Medicaid.

According to a survey made this week by the National Abortion Rights Action League, 13 states plus the District of Columbia are continuing reimbursement for any Medicaid abortions.

The states are Alaska, California, Colorado, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Oregon, Virginia, Washington, West Virginia and Wisconsin.

Idaho, New York and Pennsylvania reimburse only for abortions considered medically necessary, with Idaho requiring the consent of two physicians.

The legislatures in Illinois, Massachusetts and Michigan had voted to prohibit reimbursement for most Medicaid abortions, but the governors of those state vetoed the legislation. Overrides are now pending in all three state legislatures.

Virginia has voted to discontinue paying for Medicaid abortions after Nov. 30 unless the life of the woman is endangered by pregnancy. The state Board of Health, however, will hold a public hearing on the issue before then and will make a final decision after that.