Supreme Court of the
Edward W. MAHER,
Commissioner of Social Services of
v.
Susan ROE et al.
No. 75-1440.
Argued Jan. 11, 1977.
Decided June 20, 1977.
432
Indigent women
brought suit challenging a
Mr. Justice
POWELL delivered the opinion of the Court.
In Beal
v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464, we hold today that Title XIX of the federal
Social Security Act does not require the funding of non therapeutic
abortions as a condition of participation in the joint federal-state medicaid
program established by that statute. In this case, as a result of our decision
in Beal, we must decide whether the Constitution requires a participating State to pay for non therapeutic
abortions when it pays for childbirth.
I
A regulation of
the Connecticut Welfare Department limits state Medicaid benefits for first
trimester abortions to those that are
“medically necessary,” a term defined to include psychiatric necessity.
Connecticut Welfare Department, Public Assistance Program Manual, Vol. 3, c.
III, § 275 (1975).[1]
This
attack on the validity of the
Although it found no independent constitutional right to a
state- financed abortion, the District Court held that the Equal Protection
Clause forbids the exclusion of non therapeutic abortions from a state welfare
program that generally subsidizes the medical expenses incident to pregnancy
and childbirth. The court found implicit in Roe
v. Wade, (1973), the view that “abortion and
childbirth, when stripped of the sensitive moral arguments surrounding the
abortion controversy, are simply two alternative medical methods of dealing
with pregnancy . . ..” Relying also on Shapiro
v. Thompson, (1969), and Memorial
Hospital v. Maricopa County, (1974), the court
held that the Connecticut program “weights the choice of the pregnant mother
against choosing to exercise her
constitutionally protected right” to a nontherapeutic abortion and “thus
infringes upon a fundamental interest.” The court found no state interest to
justify this infringement. The State’s fiscal interest was held to be “wholly
chimerical because abortion is the least expensive medical response to a
pregnancy.” And any moral objection to abortion was deemed constitutionally
irrelevant:
“The state may not justify its refusal to pay for one type of
expense arising from pregnancy on the basis that it morally opposes such an
expenditure of money. To sanction such a justification would be to permit
discrimination against those seeking to exercise a constitutional right on the
basis that the state simply does not approve of the exercise of that right.”
The District
Court enjoined the State from requiring the certificate of medical necessity
for Medicaid-funded abortions. The court also
struck down the related requirements of prior written request by the pregnant
woman and prior authorization by the Department of Social Services, holding
that the State could not impose any requirements on Medicaid payments for
abortions that are not “equally applicable to medicaid payments for childbirth,
if such conditions or requirements tend to discourage a woman from choosing an
abortion or to delay the occurrence of an abortion that she has asked her
physician to perform.” We noted probable jurisdiction to consider the constitutionality of the Connecticut
regulation. (1976).
The Constitution imposes no obligation on the States to pay the pregnancy-related medical expenses of indigent
women, or indeed to pay any of the medical expenses of indigents. But when a State decides to alleviate some of
the hardships of poverty by providing medical care, the manner in which it
dispenses benefits is subject to constitutional limitations. Appellees’ claim
is that
Boddie
v. Connecticut, (1971), cited by appellees, is
not to the contrary. There the Court invalidated under the Due Process Clause
“certain state procedures for the commencement of litigation, including
requirements for payment of court fees and costs for service of process,”
restricting the ability of indigent persons to bring an action for divorce. The
Court held:
“(G)iven the basic position of the marriage relationship in this
society’s hierarchy of values and the concomitant state monopolization of the
means for legally dissolving this relationship, due process does prohibit a
State from denying, solely because of
inability to pay, access to its courts to individuals who seek judicial
dissolution of their marriages.”
Because
Applying this
analysis here, we think the District Court erred in holding that the
…The central question in this case is whether the regulation
“impinges upon a fundamental right explicitly or implicitly protected by the Constitution.”
The District Court read our decisions in Roe
v. Wade, (1973), and the subsequent cases
applying it, as establishing a fundamental right to abortion and therefore
concluded that nothing less than a compelling state interest would justify
Connecticut’s different treatment of abortion and childbirth. We think the District
Court misconceived the nature and scope of the fundamental right recognized in
Roe.
At issue in Roe was the constitutionality of a
The
The
These cases recognize
a constitutionally protected interest “in making certain kinds of important
decisions” free from governmental compulsion. Whalen
v. Roe, (1977). As Whalen makes clear, the right
in Roe v. Wade can be understood only by considering both the woman’s interest
and the nature of the State’s interference with it. Roe did not declare an
unqualified “constitutional right to an abortion,” as the District Court seemed
to think. Rather, the right protects the woman from unduly burdensome
interference with her freedom to decide whether to terminate her pregnancy. It
implies no limitation on the authority of a State to make a value judgment
favoring childbirth over abortion, and to implement that judgment by the
allocation of public funds.
The
Appellees rely on Shapiro
v. Thompson, (1969), and Memorial
Hospital v. Maricopa County, (1974). In those
cases durational residence requirements for the receipt of public benefits were
found to be unconstitutional because they “penalized” the exercise of the
constitutional right to travel interstate. Appellees’ reliance on the penalty
analysis of Shapiro and
If
C
Our conclusion signals no retreat from Roe or the cases applying
it. There is a basic difference between direct state interference with a
protected activity and state encouragement of an alternative activity consonant
with legislative policy. Constitutional
concerns are greatest when the State attempts to impose its will by force of
law; the State’s power to encourage actions deemed to be in the public interest
is necessarily far broader.
This distinction is implicit in two cases cited in Roe in
support of the pregnant woman’s right under the Fourteenth Amendment. Meyer
v. Nebraska, (1923), involved a
Both cases invalidated substantial restrictions on
constitutionally protected liberty interests: in Meyer, the parent’s right to have
his child taught a particular foreign language; in Pierce, the parent’s right
to choose private rather than public school education. But neither case denied
to a State the policy choice of encouraging the preferred
course of action. Indeed, in Meyer, the Court was careful to state that the
power of the State “to prescribe a curriculum” that included English and
excluded German in its free public schools “is not questioned.” Similarly,
Pierce casts no shadow over a State’s power to favor public education by
funding it a policy choice pursued in some States for more than a century.
Indeed, in Norwood
v. Harrison, (1973), we explicitly rejected the
argument that Pierce established a “right of private or parochial schools to
share with public schools in state largesse,” noting that “(i)t is one thing to
say that a State may not prohibit the maintenance of private schools and quite
another to say that such schools must, as a matter of equal protection, receive
state aid.” Yet, were we to accept appellees’ argument, an indigent parent
could challenge the state policy of favoring public rather than private
schools, or of preferring instruction in English rather than German, on grounds
identical in principle to those advanced here. We think it abundantly clear
that a State is not required to show a compelling interest for its policy
choice to favor normal childbirth any more than a State must so justify its
election to fund public but not private education.
The question
remains whether
Roe itself explicitly acknowledged the State’s strong interest in
protecting the potential life of the fetus. That interest exists throughout the
pregnancy, “grow(ing) in substantiality as the woman approaches term.” Because
the pregnant woman carries a potential human being she “cannot be isolated in
her privacy. . . . (Her) privacy is no longer sole and any right of privacy she
possesses must be measured accordingly.” The State unquestionably has a “strong
and legitimate interest in encouraging normal childbirth,” an interest honored
over the centuries.[3] Nor can there be any
question that the
We certainly are not unsympathetic to the
plight of an indigent woman who desires an abortion, but “the Constitution does
not provide judicial remedies for every social and economic ill.” Our cases
uniformly have accorded the States a wider latitude in choosing among competing
demands for limited public funds. In Dandridge
v. Williams, despite recognition that laws and
regulations allocating welfare funds involve “the most basic economic needs of
impoverished human beings,” we held that classifications survive equal
protection challenge when a “reasonable basis” for the classification is shown.
As the preceding discussion makes clear, the state
interest in encouraging normal childbirth exceeds this minimal level.
The decision whether to expend state funds for non
therapeutic abortion is fraught with judgments of policy and value over which
opinions are sharply divided. Our conclusion that the
In conclusion, we emphasize that our decision today does
not proscribe government funding of nontherapeutic abortions. It is open to
Congress to require provision of Medicaid benefits for such abortions as a
condition of state participation in the Medicaid program. Also, under Title XIX
Connecticut is free through normal democratic processes to decide that such
benefits should be provided. We hold only that the Constitution does not
require a judicially imposed resolution of these difficult issues.
III
The District Court also invalidated
The judgment of
the District Court is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
Mr. Justice BRENNAN,
Joined by Mr. Justice
MARSHALL and Mr. Justice BLACKMUN dissenting.
The District
Court held:
“When
This Court reverses on the ground that “the
District Court misconceived the nature and scope of the fundamental right
recognized in Roe
v. Wade, (1973),” and therefore that Connecticut
was not required to meet the “compelling interest” test to justify its
discrimination against elective abortion but only “the less demanding test of
rationality that applies in the absence of . . . the impingement of a
fundamental right.” This holding, the Court insists, “places no obstacles
absolute or otherwise in the pregnant woman’s path to an abortion”; she is still
at liberty to finance the abortion from “private sources.” True, “the State may
(by funding childbirth) have made childbirth a more attractive alternative,
thereby influencing the woman’s decision, but it has imposed no restriction on
access to abortions that was not already there.” True, also, indigency “may
make it difficult and in some cases, perhaps impossible for some women to have
abortions,” but that regrettable consequence “is neither created nor in any way
affected by the
But a distressing
insensitivity to the plight of impoverished pregnant women is inherent in the
Court’s analysis. The stark realty for too many, not just “some,” indigent
pregnant women is that indigency makes access to competent licensed physicians not
merely “difficult” but “impossible.” As a practical matter, many indigent women
will feel they have no choice but to carry their pregnancies to term because
the State will pay for the associated medical services, even though they would
have chosen to have abortions if the State had also provided funds for that
procedure, or indeed if the State had provided funds for neither procedure.
This disparity in funding by the State clearly operates to coerce indigent
pregnant women to bear children they would not otherwise choose to have, and
just as clearly, this coercion can only operate upon the poor, who are uniquely
the victims of this form of financial pressure. Mr. Justice Frankfurter’s words
are apt:
“To sanction such a ruthless consequence, inevitably resulting
from a money hurdle erected by the State, would justify a latter-day Anatole
None can take
seriously the Court’s assurance that its “conclusion signals no retreat from
Roe (v. Wade ) or the cases applying it.” That statement must occasion great
surprise among the Courts of Appeals and District Courts that, relying upon Roe
v. Wade, have held that States are constitutionally required to fund elective
abortions if they fund pregnancies carried to term. Indeed, it cannot be
gainsaid that today’s decision seriously erodes the principles that Roe and Doe
announced to guide the determination of what
constitutes an unconstitutional infringement of the fundamental right of
pregnant women to be free to decide whether to have an abortion.
The Court’s
premise is that only an equal protection claim is presented here. Claims of
interference with enjoyment of fundamental rights have, however, occupied a
rather protean position in our constitutional jurisprudence. Whether or not the
Court’s analysis may reasonably proceed under the Equal Protection Clause, the
Court plainly errs in ignoring, as it does, the unanswerable argument of
appellees, and the holding of the District Court, that the regulation
unconstitutionally impinges upon their claim of privacy derived from the Due
Process Clause.
Roe v. Wade and
cases following it hold that an area of privacy invulnerable to the State’s
intrusion surrounds the decision of a pregnant woman whether or not to carry
her pregnancy to term. The
The last time our
Brother POWELL espoused the concept in an abortion case that “(t)here is a
basic difference between direct state interference with a protected activity
and state encouragement of an alternative activity consonant with legislative
policy,” the Court refused to adopt it. This was made explicit in Part II of
our Brother Blackmun’s opinion for four of us and is implicit in our Brother
Stevens’ essential agreement with the analysis of Part II-B. Part II-B stated:
“Mr. Justice Powell would so limit Doe and the other cases cited,
explaining them as cases in which the State ‘directly interfered with the
abortion decision’ and ‘directly interdicted the normal functioning of the
physician- patient relationship by criminalizing certain procedures’. There is
no support in the language of the cited cases for this distinction . . . .
Moreover, a ‘direct interference’ or ‘interdiction’
test does not appear to be supported by precedent. . . . For a doctor who
cannot afford to work for nothing, and a woman who cannot afford to pay him,
the State’s refusal to fund an abortion is as effective an ‘interdiction’ of it
as would ever be necessary. Furthermore, since the right . . . is not simply
the right to have an abortion, but the right to have abortions nondiscriminatorily
funded, *486 the denial of such funding is as complete an ‘interdiction’
of the exercise of the right as could ever exist.”
We have also
rejected this approach in other abortion cases. Doe v. Bolton, the companion to
Roe v. Wade, in addition to striking down the
Most recently,
also in a privacy case, the Court squarely reaffirmed that the right of privacy
was fundamental, and that an infringement upon that right must be justified by
a compelling state interest. Carey
v. Population Services International, (1977).
That case struck down in its entirety a
Finally, cases
involving other fundamental rights also make clear that the Court’s concept of
what constitutes an impermissible infringement upon the fundamental right of a
pregnant women to choose to have an abortion makes new law. We have repeatedly
found that infringements of fundamental rights are not limited to outright
denials of those rights. First Amendment decisions have consistently held in a
wide variety of contexts that the compelling-state- interest test is applicable
not only to outright denials but also to restraints that make exercise of those
rights more difficult. Sherbert
v. Verner, (1963) (free exercise of religion); NAACP
v. Button, (1963) (freedom of expression *488 and association), Linmark
Associates v. Township of Willingboro, (1977)
(freedom of expression). The compelling-state-interest test has been applied in
voting cases, even where only relatively small infringements upon voting power,
such as dilution of voting strength caused by mal apportionment, have been
involved. Similarly, cases involving the right to travel have consistently held
that statutes penalizing the fundamental right to travel must pass muster under
the compelling-state-interest test, irrespective of whether the statutes
actually deter travel. And indigents asserting a fundamental right of access to
the courts have been excused payment of entry costs without being required
first to show that their indigency was an absolute bar to access.
Until today, I
had not thought the nature of the fundamental right established in Roe was open
to question, let alone susceptible of the interpretation advanced by the Court.
The fact that the
Nor does the
manner in which
Bellotti
v. Baird, (1976), held, and the Court today
agrees, that a state requirement is unconstitutional if it “unduly burdens the
right to seek an abortion.”
Although
appellant does not argue it as justification, the Court concludes that the
State’s interest “in protecting the potential life of the fetus” suffices.
Since only the first trimester of pregnancy is involved in this case, that
justification is totally foreclosed if the Court is not overruling the holding
of Roe v. Wade that “with respect to the State’s important and legitimate
interest in potential life, the ‘compelling’ point is at viability,” occurring
at about the end of the second trimester.
The appellant also argues a further justification not relied upon by the Court,
namely, that the State needs “to control the amount of its limited public funds
which will be allocated to its public welfare budget.” The District Court
correctly held, however, that the asserted interest was “wholly chimerical”
because the “state’s assertion that it saves money when it declines to pay the
cost of a welfare mother’s abortion is simply contrary to undisputed facts.”
Finally, the reasons that render the
[1] Section 275 provides in relevant part:
“The Department makes payment for abortion services under the Medical Assistance (Title XIX) Program when the following conditions are met:
“1. In the opinion of the attending physician the abortion is medically necessary. The term ‘Medically Necessary’ includes psychiatric necessity.
“2. The abortion is to be performed in an accredited hospital or licensed clinic when the patient is in the first trimester of pregnancy. . . .
“3. The written request for the abortion is submitted by the patient, and in the case of a minor, from the parent or guardian.
“4. Prior authorization for the abortion is secured from the Chief of Medical Services, Division of Health Services, Department of Social Services.”
See n. 4, infra.
[2]
At the time this action was filed,
Mary Poe, a 16-year-old high school junior, had already obtained an abortion at
a
[3]
In addition to the direct interest
in protecting the fetus, a State may have legitimate demographic concerns about
its rate of population growth. Such concerns are basic to the future of the
State and in some circumstances could constitute a substantial reason for
departure from a position of neutrality between abortion and childbirth.