*1 OF PUBLIC DEPARTMENT SECRETARY, BEAL, PENNSYLVANIA, OF WELFARE et al.
DOE et al. 20, 1977 June January 11, Argued 1977 Decided No. 75-554. *2 J., opinion J., Court, Powell, delivered which C. BüRger, and JJ., joined. Stewart, White, and Rehnquist, Brennan, Stevens, J., dissenting JJ., filed a opinion, in which Marshall and Blackmun, joined, post, p. J., dissenting 448. opinion, post, p. filed a 454. Marshall, J., dissenting filed opinion, Blackmun, and which Mar- Brennan JJ., joined, post, p. 462. shall, Watkins, Norman J. Deputy Pennsyl- Attorney General of argued the cause for vania, petitioners. him on the With Kane, P. briefs were Robert Attorney Justin General, /. Blewitt, Jr., Deputy Attorney General. argued Crosby
Judd F. the cause and filed a brief respondents.* Hyland, Attorney Stephen General, Skillman, F. Assistant *William
Attorney Conley, Erminie General, Deputy Attorney L. General, filed Jersey New urging a brief for the State of as amicus curiae reversal. Dolowitz, Wulf, Melvin L. David S. and Judith M. Mears filed a brief opinion the Court. delivered Justice Powell Mr. XIX of Title the Social The issue in this case is whether amended, C. Security 343, added, Act, Stat. Supp. requires ed. seq. (1970 V), 1396 et (Medicaid) program Assistance participate in the Medical nontherapeutic fund the abortions. cost
I which program under Title XIX the Medicaid establishes funded medical provide federally participating States needy requires participat- The statute persons.1 assistance to financial assist- qualified individuals with ing provide States to categories treatment.2 general ance five *3 Assn, urging et amici curiae Public al. as for the American Health affirmance. as A. for Doe A. and Michael filed a brief Jane Patricia Butler Wolff
amicus curiae. needy (1) “cate groups persons: Title XIX two establishes needy persons dependent children needy, with gorically” which includes (a) (A) (1970 disabled, (10) aged, blind, 42 U. S. 1396a and the and C. § needy “medically” (2) needy, includes ed., Supp. V); which other and V). (10) (C) (1970 ed., Supp. Participating are (a) States persons, 1396a § “medically” needy, required coverage but to extend Medicaid Pennsylvania to do chosen so. has general categories of medical treatment enumerated are: (other in an
“(1) inpatient hospital than services institution services diseases) ; tuberculosis or mental
“(2) services; outpatient hospital
“(3) laboratory X-ray services; other and “(4) (A) facility (other in an nursing than services skilled services diseases) years individuals 21 or mental institution for tuberculosis screening (B) July early periodic age such and or older effective eligible plan diagnosis who under the and are under and of individuals are defects, age physical of 21 their or mental and such health to ascertain care, treatment, other measures correct or ameliorate defects and thereby, provided regulations as be chronic conditions discovered (C) family supplies Secretary; planning furnished services (directly arrangements others) with child- or under individuals of sexually be bearing age (including active) minors can considered who (a) S. C. (13) §§ U. 1396a (B) (1970 ed., Supp. V), 1396d (a) (1970 (l)-(5) Supp. V). Although ed. Title XIX require does not provide States to funding for all medical falling treatment general within the five it categories, does require that state plans Medicaid establish “reasonable stand- ards ... for determining . the . extent of medical . assistance plan under the which . objectives . . consistent ” (a) (1970 ed., S. C. 1396a [Title XIX] § (17) Supp. V).
Respondents, eligible who are for medical assistance under Pennsylvania’s federally approved denied plan, were Pennsyl- financial assistance for desired pursuant regulations limiting vania such assistance to those abortions by physicians medically necessary.3 that are certified When eligible plan and who are under the State who desire such services and supplies;
“(5) (as physicians’ physician services furnished in section defined (r) (1) title), office, patient’s 1395x of this whether furnished in the home, hospital, nursing facility, or a skilled or elsewhere.” U. C.S. (a) (1970 V). Supp. 1396d ed. and §
Participating coverage “medically” needy, elect extend to the 1, supra, option providing categories have the see different n. somewhat (13) (C) (a) services of medical to those individuals. C. 1396a U. S. (1970 V). (ii) ed., Supp. medically Pennsylvania necessary An abortion is deemed under the *4 program Medicaid if:
“(1) There is documented medical evidence that continuance of the pregnancy may mother; threaten the health the of “ (2) may is There docmnented medical evidence that an infant be born physical deformity incapacitating deficiency; or with mental or “(3) There is documented medical evidence that continuance of resulting pregnancy legally statutory rape from established or forcible or may incest, physical a threat to the constitute mental or health of a patient; and
“(4) physicians recognized profes- Two other chosen because their competency patient sional have examined the and have concurred in writing; and “ (5) procedure performed hospital The is accredited the Joint 442 Medicaid were denied applications assistance
respondents’ certificates, required failure to furnish the because of their for the District Court they filed action in the United declaratory in- Pennsylvania seeking Western District of Pennsylvania’s alleged Their that junctive complaint relief. necessity contravened medical requirement of a certificate of pro- equal XIX them of Title and denied provisions relevant Amendment. of the Fourteenth tection the laws violation 28 pursuant A was convened three-judge Court District statutory against issue resolving After the C. 2281. U. S. Pennsylvania’s med- held the District Court that respondents, protection respondents equal ical-necessity restriction denied Supp. (1974).4 Wohlgemuth, Doe v. of the laws. F. 4, citing Hospitals.” Petitioners Brief for Commission on Accreditation of 1973). (Sept. 29, Pennsylvania Bulletin that Bolton, (1973), indicated 410 U. this Court In Doe professional judgment . necessary’ that . . “[wjhether is a ‘an abortion emotional, light physical, psycho- be exercised the of all factors — age well-being the logical, familial, the the woman’s —relevant attending This allows the patient. may relate to health. All these factors judgment.” We physician he make his best medical the room needs to Pennsylvania during argument oral definition were informed encompass specified in necessity enough to factors is broad Arg. Bolton. Oral Tr. of 7-8. “key” emphasizes The role dissent of MR. Justice Brennan physician program, noting Medicaid within “[t]he among pregnancy procedures statutes leave the decision as the choice exclusively Post, . This patient the doctor . . .” at 449-450. and his precisely Pennsylvania provide regulations what has done. Its funding upon necessity, certification of medical a determi- physician all nation that is authorized to make on the basis of relevant factors. regulation Court was “an District of the view creates carry indigent unlawful women their distinction between who choose to pregnancies birth, indigent women who choose to terminate their Roe, pregnancies by Supp., abortion.” 191. In Maher F. post, p. today Equal 464, we conclude that Protection Clause prevent making policy Fourteenth Amendment does not a State from *5 Accordingly, granted declaratory judgment the court a Pennsylvania requirement applied was unconstitutional as during the first trimester. The United Court of Appeals sitting for the Third en Circuit, reversed on the banc, statutory holding prohibits participat- issue, XIX Title ing requiring physician’s States from of medical certificate necessity funding during aas condition for both the first and pregnancy.5 (1975). second trimesters of The F. 2d 611 Appeals Court therefore did not reach constitutional issue.6 granted among
We certiorari fed- to resolve conflict requirements eral courts as to the of Title XIX.7 428 U. S. (1976).
II
only question
statutory
construc-
before us is one of
Pennsylvania
requires
tion :
XIX
to fund under
whether Title
funding
providing
costs
similar
choice to fund
incident to childbirth without
nontherapeutic
for costs incident to
abortions.
appealed
declaratory judgment
Petitioners
Court’s
District
Respondents cross-appealed
declara
Appeals.
Court of
from the denial of
tory
respect
pregnancy.
relief
to the second
third trimesters
respondents
Since
did not
denial of
seek
District Court’s
review
injunctive relief,
jurisdiction
appeals.
Appeals
the Court of
had
over the
Coe,
Gerstein v.
its Medicaid cost of program the point every in in- starting case “The sible under state law. language itself.” is the Blue volving construction statute of a Stores, (1975) 421 U. S. Stamps Drug Chip v. Manor XIX no Title makes reference to J., concurring). (Powell, any particular other medical or, for that abortions, matter, that require is cast terms procedure. the statute Instead, financial assistance with re- participating provide States n. 2, of medical treatment. See spect categories to five broad suggests participating supra. nothing But the statute every procedure medical required to fund States Indeed, care. categories within delineated falls expressly provides: the statute . include
“A must . plan for medical assistance . State determining eligibility for for reasonable standards ... plan under of medical assistance extent objectives with the of this which . . are consistent . (1970 (a) ed., (17) . U. C. 1396a . . [Title] V). Supp. adopt language confers broad discretion on
This of medical re- determining assistance, extent standards “con- only standards be “reasonable” and quiring that such objectives” of the Act.8 sistent with the fully comports with Title XIX’s Pennsylvania’s regulation objective State, enable each as far broadly primary stated medical assistance individuals furnish practicable, the costs insufficient to meet resources are whose income and §§ 1396a necessary See S. C. medical services. statutory V). Although serious (C) Supp. (10) (1970 ed., plan ex- if Medicaid state presented questions might be it is coverage, from its treatment necessary medical cluded a State objectives Act hardly inconsistent with XIX “indicates the states will Respondents that Title concede provided.” determining the of services to extent have wide discretion Respondents Brief for 9.
to refuse to fund unnecessary though perhaps desirable— — medical services.
The thrust respondents’ argument is that the exclusion nontherapeutic from coverage is unreasonable on both economic and health grounds.9 The eco- nomic argument is grounded gen- on the view that abortion is erally a expensive less medical procedure childbirth. than pregnant Since a woman normally will either an abor- have *7 tion or carry her child full a fund term, State that elects not to nontherapeutic abortions will eventually be confronted greater the expenses associated with childbirth. The corre- sponding argument health early is based on the view that an poses abortion less of a risk to the child- health than woman’s birth. Consequently, respondents the economic and argue, health considerations ordinarily support that the reasonable- ness of state on financing unnecessary limitations medical services applicable are not pregnancy.
Accepting respondents’ not assumptions as we do accurate, agree that the exclusion of nontherapeutic abortions from coverage Medicaid is we unreasonable under Title XIX. As acknowledged Wade, in Roe v. 113 (1973), the State has a valid important encouraging interest in childbirth. expressly recognized “important legitimate We in Roe the 9Respondents Pennsylvania’s coverage also contend is that restriction on unreasonable within the meaning of Title XIX in that it interferes with physician’s professional judgment concerning appropriate treatment. possible one exception III, infra, Pennsylvania With in addressed Part program does not physician’s judgment interfere with the medical concern ing patient’s his physician If needs. certifies that is an abortion medically necessary, 3, supra, expenses see n. medical under covered Pennsylvania program. If, however, physician Medicaid concludes medically necessary, willingness that the abortion but indicates a perform request, patient’s expenses the abortion at the are not covered. solely The decision depends whether to fund the costs of the abortion thus physician’s necessity. Respondents point on the medical determination of nothing plan Pennsylvania in that inter Medicaid indicates state physician’s with the initial ference determination. protecting potentiality in
interest ... [of State] Id., not, 162. That at human life.” interest alone does suffi- become trimester, until the third approximately least inter- unduly burdensome state ciently compelling justify constitutionally privacy protected ference with the woman’s through- significant existing state interest interest. But it point Respondents pregnancy. out the of the woman’s course history nothing language legislative in either the or the partici- XIX it is unreasonable suggests Title legit- strong unquestionably pating to further this State Absent encouraging normal childbirth.10 imate interest Congress intended presume that showing, such a we will not program in the participation to condition a State’s by sub- important interest willingness on to undercut its nontherapeutic abortions.11 sidizing the costs of Title XIX rely heavily amending the fact Respondents on broad cate “family within five planning services” to include 2, supra, Congress did not treatment, gories required see n. Congress had service. Since expressly exclude abortions as a covered *8 family planning services expressly as a method of excluded abortions that 300a-6, respondents 42 conclude prior legislation, U. S. see C. § amend coverage in the 1972 Congress exclude of failure of to abortions require coverage “strongly XIX intention to to Title indicates” an ments exclude reasoning is failure to This flawed. The abortions. fine only Congress to allow intended coverage from that abortions indicates nontherapeutic coverage mandatory coverage, such not such that abortions. 11 Pennsylvania’s regulations Appeals also The Court of concluded equality provisions requiring of Title XIX that an individual’s violated the amount, duration, scope be or than medical “shall not less assistance 42 any to available other such individual.” assistance made (a) (10) (a) (10) (B) (1970 ed., V). Supp. U. S. C. 1396a See 1396a § (C) (1970 ed., Supp. V). According Appeals, the Penn the Court of sylvania voluntary regulation pregnant women to use the least “force[s] requirement treatment, imposing on other method of a similar while 611, (1975). 2d persons qualify F. 619 find the who for aid.” 523 We entirely equality provi Pennsylvania regulation consistent with the Pennsylvania simply has reason- Title decided that there is sions of XIX.
447 interpretation Our of the statute is by reinforced two other relevant considerations. when First, Congress passed Title XIX in 1965, nontherapeutic abortions were unlawful in most In States.12 view of the then-prevailing state the con law, tention that Congress intended require than per —rather participating States to fund nontherapeutic mit — far requires convincing proof more than of respondents have Department fered. Second, Health, Education, Welfare, agency charged with the administration of this complicated statute,13 takes position Title XIX al lows—but does not funding for such abortions. mandate — must be mindful that The “[W]e construction a statute by charged those with its execution un should be followed compelling there indications less it wrong New York Dept. Soc. Services Dublino, 413 U. 405, 421 (1973), Red Lion quoting Broadcasting 395 FCC, v.Co. 381 (1969). Here, U. S. such completely indications are absent. Pennsylvania’s
We therefore hold that refusal to extend coverage nontherapeutic abortions is not incon XIX.14 clear, sistent with Title We make however, that provide if coverage federal statute leaves State free such it desires.15 so justification excluding coverage particular
able from Medicaid medi- cally unnecessary procedure nontherapeutic abortions. — Roe, years eight At the time of our 1973 decision in some after statutory XIX, prohibitions of Title had enactment least against nontherapeutic abortions. U. S. 118 n. only Federal made available funds are those States whose Medicaid Secretary plans approved have been HEW. U. S. C. § (1970 Supp. V). ed., 14Congress by during expressly prohibited has statute the use fiscal *9 year except 1977 of federal Medicaid funds for abortions the life when endangered if the the would be fetus were carried term. of mother to Health, Education, Departments Appropriation of Labor and and Welfare Act, 1977, 94-439, Stat. 1434. Pub. L. Brothers, post, in this and in dissenting Roe, Our case Maher v.
HH t-H HH program, Pennsylvania Medicaid is one There feature may conflict by Appeals, the Court of not addressed financial Pennsylvania program, with Title XIX. Under the medically necessary abortions provided not for assistance is physician attending physicians unless two addition the writing the and have concurred patient have examined supra. necessary. n. medically the abortion is See role precise the On this to determine record, we are unable consequently played by physicians, these two additional interferes requirement we are unable ascertain whether this in a manner judgment attending physician’s medical with the the of judgment Congress. The contemplated by not re- case is reversed, and the Appeals Court of is therefore requirement. manded for of consideration this ordered.
It is so Mar- Justice Mr. Brennan, Mr. Justice with whom dissenting. join, shall Blackmun Justice Mr. services” “necessary medical The Court holds that for eligible fund individuals Pennsylvania which must impact perceived p. 482, express anguish terms their over vivid prefer today’s indigent pregnant abortion women decisions on who carrying misconceive the fetus to childbirth. think Brothers We our us, judiciary. as well issues before as the role of the merely (i) provisions In So- these cases we have held Security require participation, State, cial Act do as a not condition funding program; in its to include the of elective abortions (ii) Equal require elects Protection Clause does not a State that expenses provide funding elective fund incident childbirth also to entirely abortions. But we leave the Federal Government free both States, through processes democracy, provide the de- the normal funding. present policy sired The issues decisions the widest concern. They representatives people, by should resolved Court.
449 Medicaid do not include services connected with elective abor- I tions. dissent.
Though question presented by case one of statutory interpretation, a difficult question constitutional would be raised where Title XIX of the Security Act, Social as 42 amended, U. C. (1970 S. 1396 et seq. V), ed. and Supp. is read to require funding of elective abortions. Maher v. Roe, p. post, 464; Bolton, Doe v. 410 (1973); U. 179 Roe S. v. Wade, 410 U. 113 (1973). S. Since the Court should “first ascertain whether a construction is fairly statute possi- ble which the question may be avoided,” [constitutional] A, Ashwander TVv. 297 U. 288, 341, (1936) S. 348 (Brandéis, J., concurring); Doe, Westby see v. 420 U. Title (1975), XIX, my fairly view, light read principle avoidance unnecessary constitutional requires decisions, agreement with the Court of Appeals legislative that the his- tory of Title XIX and compel our abortion cases conclu- sion that elective medically necessary abortions constitute treatment I pregnancy. the condition of would therefore find that XIX requires Pennsylvania pay Title the costs eligible elective abortions for women who participants program. the Medicaid
Pregnancy unquestionably condition medical requiring Norton, services. v. Supp. (Conn. See Roe 380 F. Center, County Klein 1974); Supp. v. Nassau Medical 347 F. (EDNY 1972), (in vacated for further consideration light of Roe Bolton), v. Wade and Doe S. 925 procedures Treatment the condition involve medical or procedures for its bring preg- termination, nancy in a term, resulting live birth. “[AJbortion when stripped arguments of the sensitive moral childbirth, surrounding the abortion are simply two alter- controversy, methods dealing pregnancy native medical ..” Roe .. Norton, F. n. 3 Supp. 660, (Conn. 175). among preg- to choice the decision leave Medicaid statutes *11 patient, and his exclusively with doctor the nancy procedures by the State for intervention whatever provision make no the imposes (a) (19) expressly 1396a decision. Section in that incorporate safeguards participating States upon obligation will and services “care that assure medical programs in their . interests with . . best in a manner consistent the provided, Finance Senate And, significantly, the recipients.” of the expressly stated that the Medicaid bill Report on Committee key determining utiliza- figure be the the is to “physician Cong., Sess., Rep. 404, No. 89th 1st of health services.” S. tion very scheme congressional Thus the heart of complete have freedom physician patient should that given for a condition which procedures medical to choose those patient. needs of are best suited to the precisely dovetail original Court’s abortion decisions inter purpose under Medicaid to avoid congressional with the physician. her decision the woman and ference Wade, attending supra, at held that 163, Roe v. “[t]he to deter physician, patient, with his is free consultation State, in his medical regulation by that, mine, without pregnancy should be terminated.” judgment, patient’s medical Bolton, at held “the supra, And Doe v. that all physi light in the judgment be exercised factors — age— emotional, the woman’s familial, and cal, psychological, patient. All these factors well-being of the relevant attending physician to health. This allows the may relate judgment. And he to make his best the room needs disadvantage, operates for the not the benefit, is room it of some medical treatment pregnant woman.”* Once Pennsylvania states, ante, has left the abor- 442 n. Court *The prescribed physician patient in the manner and her decision to the tion attending physi- Pennsylvania v. Bolton. indeed does allow in Doe necessity “on the basis all provide a certificate of medical cian to concept factors,” ante, Pennsylvania’s of relevance 3, but at 442 n. relevant permit freely to enough provide certificates doctors does not extend far sort is necessary, Title XIX does not dictate what that treat- ment should be. In the face emphasis Title XIX's upon joint autonomy of the physician patient his in the decision of how to treat the condition pregnancy, it beyond comprehension how treatment for therapeutic abor- tions and live births “necessary constitutes medical services" under XIX, Title but that for elective abortions does not. Pennsylvania
If is not obligated to fund medical services rendered in performing they elective abortions because not “necessary” within meaning U. S. C. (1970 ed., Supp. Y), it must follow Pennsylvania also would not violate the if statute it refused to fund medical “therapeutic” services for or live births. For if the *12 necessity for argument, all elective At abortions. oral counsel petitioners carefully position stated the State’s follows: perfectly my me make is, physi- clear “[L]et concession. That that a cian, in examining patient, may emotional, psychological, take physical, considerations, familial light considerations mind into the of those may determine if those factors affect the health of the mother to such an necessary. extent as he would deem an abortion key
“I think key Bolton language, the the and the in the Vuitch (1971)] v. Vuitch, language the fact [United U. S. 62 that physician, using the all probably of these there are that facts —and more is, he if phys- should determine the woman’s health —that her use—must or psychological by ical jeopardized pregnancy. health —is the condition of say, obviously, asserting, “That is not to as I the believe Plaintiffs family going that the fact the an increase makes abortion medi- cally necessary.” Arg. Tr. of Oral 8. goes only
Petitioners’ “concession” permit attending so far as to an physician to an consider abortion as it relates to a woman’s health. Bolton recognized by “may physician factors considered relate to health,” very paragraph but in the same made clear those factors broadly “well-being” S., were more directed to the of the woman. U. (emphasis at 192 added). right privacy implicate While the does health considerations, recognized protected by right the constitutional individual, “right the Court’s abortion decisions is the of the or married single, governmental free from unwarranted intrusion into matters so fundamentally affecting person as beget the decision whether to bear or a child.” Baird, (1972). Eisenstadt v. 405 U. S. live births makes
availability therapeutic abortions and must also be converse “unnecessary,” elective abortions congressional highlights This done true. the violence pay costs by If must today’s the State mandate decision. constituting live birth as therapeutic abortions and of of pregnancy, the condition medically necessary responses to pay costs § it under the command of also must, nec- case constitute abortions; procedures in each elective essary pregnancy. condition of medical treatment for the family-planning Act, amendment
The 1972 my (4) (1970 ed., Supp. buttresses (a) V), (C) S. C. 1396d objec- frustrates the the Court’s construction conclusion that (2) states that Medicaid program. Section tives indigent eligible an assist explicit purpose Medicaid is or independence capability retain recipients to “attain or objective The 1972 furthered self-care.” amendment in order family size who control assisting those “desire to ability employment and to seek capacity their enhance 92-1230, p. family Rep. No. meet needs.” S. better family-planning an Though less than ideal far limiting method for one abortions are mechanism, elective problems emotional avoiding size financial and family Special Sub- See impoverished. daily that are lot *13 Committee of the Senate Human Resources committee on Report of Sess., 92d 1st Cong., on Labor Public Welfare, and Submitting Health, Welfare Secretary Education, Population Planning Family Services Five-Year Plan for 1971). (Comm. Print Programs Research 1965 when in illegal were It is no answer that abortions family-planning when enacted, Medicaid was cate- general adopted. Medicaid deals amendment was procedures, specific not with services, of medical gories designed is that Medicaid suggests even nothing in the statute only that were those medical services in payment to assist legally permissible I fully 1965 and 1972. agree with the Appeals Court of statement:
“It is impossible in enacting believe that Title XIX Congress intended freeze the medical services available recipients at those which were legal in 1965. Congress surely intended to pay for drugs not legally marketable regulations under the FDA’s in 1965 which subsequently found to be marketable. We see no can why analysis reason the same should apply not to the Supreme Court’s legalization of elective abortion in 1973.” 611, 523 F. 2d 622-623
Nor is the interpretation administrative Department Health, Education, and Welfare funding of elective abor- is permissible mandatory but not dispositive tions construction of “necessary principle medical services.” The according weight agency interpretation inapplicable when departmental interpretation, here, patently inconsistent with the controlling statute. Townsend Swank, 286 (1971).
Finally, certainly there is no policy justification affirmative of the State that aids the Court’s “necessary construction of medical services” including as not medical services rendered in performing elective abortions. The cannot contend State protects it fiscal its interests in funding elective abortions it when incurs far greater expense in for the paying costly more performed services carrying preg- term, and, nancies to birth, after paying the increased welfare bill incurred support the mother and child. Nor can the protects State contend that it the mother’s health dis- an couraging abortion, for not only may Pennsylvania’s exclusion pregnant force the woman to use of measures dan- gerous her Wade, life as Roe but, and health 410 U. S., concluded, elective by competent licensed physicians “relatively are now safe” and the risks to women *14 low to be as as “appear by such means
undergoing childbirth.” for normal or lower than ... practical as a only result can
The Court's construction have children women penniless pregnant in forcing matter weighted the not if the had State they would not have borne substantially to have abortions their choice to make scales only Term: last the Court said Indeed, more onerous. as nothing, to work who cannot afford “For a doctor pay the State’s refusal him, afford woman who cannot it would as is an ‘interdiction’ fund an abortion as effective 118— Wulff, necessary.” Singleton 106, v. U. ever thus makes The construction Court’s n. provide mandate mockery congressional, . the with . . in manner consistent “care services ... the respect should recipients.” We best interests requiring States plan by construing 1396 as congressional in rendered “necessary medical services” costs of the pay the their physicians chosen abortions, by performing elective appro- in Medicaid participate patients who women pregnancies. treatment for their priate whether question Court does address physi- two writing the concurrence requiring provision physician conflicts attending to the cians addition invalid as provision I hold XIX. would Title my XIX view Title under in conflict with clearly attending physician played role paramount constitutionally invalid any and in event decision, abortion Bolton, S., 198-200. under Doe v. of Appeals. of the Court judgment
I affirm would dissenting.* Marshall, Mr. Justice actions in these governmental obvious It is all too carry preg- “encourage” women to ostensibly taken to cases, 75-1440, Maher, Commissioner applies also No. opinion *[This p. 75-442, al., Roe et and No. post, Connecticut Social Services of Doe, post, p. Louis, et Mayor d. Poelker, 519.] St.
455 nancies to are in term, reality impose intended to a moral viewpoint that no constitutionally State Roe enforce. Wade, v. 410 Bolton, U. S. 113 (1973); Doe 410 v. 179 S. (1973). Since efforts to overturn those decisions have been unsuccessful, opponents every of abortion attempted have imaginable means to circumvent the commands of Con stitution impose their moral upon choices rest society. g., See, e. Planned Parenthood Missouri v. Dan forth, Singleton Wulff, 52 (1976); 428 U. S. 428 U. S. v. Baird, (1976); (1976). Bellotti 428 132 U. S. attacks most vicious present The cases involve tragi falls yet impact regulations The of the here devised. or defend among help us able to cally upon those least in regulations knows, As the Court well these themselves. nearly evitably practical preventing will have the effect of legal obtaining abortions.1 poor women from safe all preg during performed trimester of Although an first abortion usually costing surgical procedure, under nancy relatively inexpensive is a beyond of most far the means $200, modest sum is even this get fee it the have it and unable recipients. And “if one does not Bennett, Smith great. might as well be” one hundred times as (1961). 708, 712 U. S. major perhaps today’s decisions, as much Even before reason went need for an estimated 1.8 million abortions one-third of annual of 10 counties did have was the fact that 8 out American unmet Sullivan, Tietze, Legal provider. Dryfoos, Abortion single & abortion Family 116-117,121, States, 1975-1976, Planning Perspectives the United 1975, 83,000 their home States (1977). In women had to travel from Virginia performed (there were 100 in West abortions to obtain nearly Mississippi), 300,000 more, and about or a total and 310 in 40% Id., patients, help had to seek outside their home counties. of abortion only hospitals 121, addition, public 124. In at 18% single and in 10 not one performed even abortion Nation Id., provided public hospital abortion services. 128. realities, it seems inevitable that the number and political Given providers will as a geographical distribution of abortion diminish result likely public hospitals today’s regrettable It is but decisions. fewer payments unavailable, if Medicaid other provide the service and will challenged brutally enactments here coerce poor society every bear children whom will women to scorn minority day Many of their lives. thousands unwanted spend blighted and mixed-race children now lives in foster Smith homes, orphanages, and “reform” schools: Cf. Families, *16 Organization v. Foster 431 U. 816 S. of Many children of the attend second-rate poor, sadly, will 717 Bradley, 418 U. segregated schools. Cf. Milliken v. S. increasing opposition against strong And remains for Aid benefits Dependent With Children Families is little impoverished mothers there and so children, for the environment. grow up chance children to in a decent I am Dandridge Williams, 471 (1970). Cf. U. S. preach appalled bankruptcy ethical those who a bare “right present policies, to life” that under social means, clinics, most hospitals, physicians to do so. Since and will unable money, the public hospital patients not probably Medicaid and do have time, familiarity delivery system to travel with or the medical today’s available, cities distant States or where abortions beyond The put reach. legal decisions will their safe tragedy inevitable human result reflected in Government will report: legal women, public funding abortion some for lack of “[F]or obtaining The procedures. acted as a their follow- deterrent to safer ing history exemplifies during such case a death which occurred [of 1975] a situation: 41-year-old history preg- previous
. .A married with a woman nancies, living children, sought illegal 1 previous abortion abortion an seeking illegal procedure from a local Her an dietician. stated reason for financial, pay was since Medicaid in her state of residence would procedure illegal her abortion. The estimated $30, compared an cost procedure performed $150 legal Allegedly operation for a was .... inserting a rod to the cervix woman died metal dilate .... [The opera- hospital cardiac arrest after weeks two two intensive care and Health, Welfare, Dept, Education, U. S. Center for tions.]” Control, Surveillance, 1975, p. (hereafter (1977) Disease Abortion CDC Surveillance).
existence in utter misery for many poor so women and their children.
I insensitivity Court’s to the human dimension of these is particularly decisions obvious in cursory its discussion of appellees’ equal protection claims in Maher v. Roe. That points case up once again the need repudi- Court ate intellectually its outdated and disingenuous “two-tier” equal protection analysis. See generally Massachusetts Bd. Murgia, Retirement (1976) I J., dissenting). As suggested have (Marshall, before, this “model’s two fixed of analysis, scrutiny modes strict simply mere rationality, inquiry not describe the the Court do has equal protection undertaken —or undertake —in should Id., present In case, cases.” at 318. its evident desire scrutiny any meaningful scrutiny— avoid strict indeed —or surely re- challenged which would almost legislation, *17 id., from pulls at the 319, its see Court invalidation, sult absolutely prevent thin laws that air a distinction between right abortion and those exercise of the fundamental people. difficult for some “merely” exercise make its 471-474. Mr. Justice Brennan Roe, post, at Maher v. See distinction, post, support no such our cases demonstrates regu- challenged I that the argued above and have 485-489, at the prohibition from a total different from are little lations legal legerdemain the Court’s poor. But viewpoint the of no A right fundamental result: desired produced the has appro- rationality the becomes mere stake and longer at application no one’s analysis. surprise, To of mode priate misreading Wade of Roe v. with of test —combined during in “potential interest life” “strong” state generate infra, see Maher v. 460; at pregnancy, of first trimester the post, J., dissenting); at Roe, 489-490 (Brennan, at post, the little doubt about dissenting) J., (Blackmun, —“leaves upheld.” always legislation challenged outcome; [as] at 319. Murgia, supra, Bd. Retirement Massachusetts of ignored,” misapplied or again, “relevant factors [are] And once pro- “forgo judicial all while the Court S., at [es] bearing upon” right discriminatory legislation against tection “unfairly society” a class of a free and flourishing to the “vital indi- by invidious discrimination unrelated burdened Id., worth of members.” at 320. vidual [its] analysis far protection before, equal I an argued have As of words keeping more in the actions rather than id., carefully weighs factors —“the 320-321, see three Court, denied,, character governmental benefits importance of the id., at 322. interests,” of and the asserted state class, challenged invalidate Application of standard would regulations. perhaps issue while governmental here,
The benefits at money any individual, representing amounts are large absolutely importance vital nevertheless of the lives every recipients. right woman to choose whether impor- is, held, bear a child as Roe v. Wade fundamental An may destructive disruptive tance. unwanted child woman, impact but is felt most the life those any If poor too to ameliorate those funds an abortion effects. poor woman unavailable, may feel that she is forced illegal poses obtain an abortion that a serious to her threat supra. her If health and even life. See n. refuses she risk, undergoes pain take this of state- danger up she pregnancy give financed well all childbirth, escaping cycle day-care of poverty. chance Absent *18 be facilities, years will forced into child for she full-time care family will unable to work come; she so that her can system or the break out the welfare lowest income brackets. If already children, has another infant to she feed and clothe budget past the breaking point. well stretch All chance to control the direction of her own will life have been lost.
1 have already adverted to some the characteristics of by the class regulations. burdened these poverty While alone does not entitle a government class claim benefits, it is surely a present relevant factor inquiry. See San Antonio School Dist. 117-124 Rodriguez, 1, 70, U. S. (1973) dissenting). it was Indeed, (Marshall, J., San Antonio case that for the Court Mr. Justice Powell stated a analyzing test for on basis of discrimination fairly wealth that if strike down the would, applied here, regulations. The Court there held a wealth-discrimina- distinguish- by persons tion claim is made who “two share out they ing impecunity characteristics: because their [are] and as pay benefit, unable to completely some desired deprivation of a they absolute consequence, an sustai[n] Id., 20. at benefit.” meaningful opportunity enjoy “completely definition, recipients almost are, thereby completely are pay unable to for” abortions, them.2 meaningful opportunity” “a to obtain denied challenged disturbing that the effect It is no less women disparity upon great regulations fall with will women now obtain minority races. Nonwhite almost appears that and it rate of nearly whites,3 twice the reduced, private sharply are for abortions funds and facilities public If willing perform abortions clinics, charities, hospitals, and doctors trust, some will, I accommodate prevailing fee than the far less now, inadequately even available abortion services But since need. many give poor unlikely to private generosity is 1, supra, such see n. abortions. to obtain meaningful opportunity” “a women among overrepresented heavily groups are nonwhite Blacks other In about recipients. patients and Medicaid both abortion 13.1% States, of the United nonwhite, Abstract Statistical population was minority aof obtaining abortions were yet of women 1976, p. 31% Furthermore, nonwhites 8. 24, Table 2 and race. CDC Surveillance *19 minority pro women—more than five times 40% portion of for dependent upon whites —are Medicaid their strongly health if disparate impact care.4 Even this racial Clause, does Equal not alone violate Protection see Washington Davis, v. Hack (1976); S.U. Jefferson showing ney, 406 point U. S. 635 “at some (1972), minority devastating impact state action has a on the lives Id., groups 558, racial must be at 575-576 relevant.” (Mar dissenting). J., shall, challenged will have
Against the laws brutal effect Court de- must state weighed asserted interest. The potential “strong protecting this as interest scribes in Doe v. Roe, 478. Yet post, life of the fetus.” Maher at Bolton, any interest supra, expressly Court held state of all when first trimester of during pregnancy, 86% wholly was insuffi- 3, CDC Surveillance occur, to abortion. right cient with the justify state interference births, per 1,000 live while the the rate secured abortions at only Id., 2, 8, Tables 9. figure corresponding for whites was 277. significance considerably family-planning method of more Abortion is thus minority groups for than for whites. Rico, (three Puerto Although complete States, statistics are unavailable breakdown, eight Virgin having and the Islands furnished no racial giving data), for some incomplete nonwhites accounted 43.4% U. S. recipients during year jurisdictions reporting. 1974 in Medicaid fiscal Statistics, Recipient Dept, HEW, National Center for Social Medicaid Services, Year Fiscal Characteristics of Selected Medical and Units 1977). p. Extrapolating percentage entire (Feb. this cover million, minority groups racial would account Medicaid caseload 17.6 of over comparability and census 7,656,000 recipients. Assuming HEW population. figures, See of the Nation's nonwhite amounts 27.4% supra, female Medicaid Abstract, n. at 25. Since there are 1.8 Statistical Characteristics, supra, recipients male, every Recipient see Medicaid rely upon proportion of who nonwhite women must figure probably higher, comparable for white women far about 38.5%. appears to be about 7%. *20 S., at If 192-200.5 potential U. a State’s interest in
human life point before of viability jus- is insufficient to tify requiring physicians’ several concurrence for an abortion, ibid., I comprehend cannot how magically it adequate becomes to present allow the infringement on rights of disfavored If classes. any there is state potential in interest life before point of viability, it certainly dep- not outweigh does or rivation serious discouragement of a vital constitutional right especial of importance poor minority and women.6 taking account
Thus, of all relevant factors under equal protection flexible standard of I would hold review, the Connecticut Pennsylvania and and regulations Louis public hospital St. the Four- policy violative of teenth Amendment.
II Bolton, Court decided Roe and Doe v. this v. Wade When adjudica- it properly embarked on a course of constitutional Board Brown v. begun by tion no less controversial than that Education, decisions The abortion S.U. policy. They have undoubtedly are sound law and good by Court, told that questioned and we are never been today’s cases “signa [1] no retreat Roe from or the cases Roe, post, it.” Maher 475. those logic at applying enact- inexorably present invalidation of the requires cases performed physician exercis Requirements that the abortion facility meeting narrowly ing judgment, in clinical and tailored his best standards, Bolton, S., Doe 192-200. health allowable. at equal protection Application standard allow the of the flexible would regulations calling Court down the these cases without into' strike question funding English public language teaching education laws or Roe, post, public By See permitting schools. Maher v. 476-477. weigh factors, logically all standard not court to relevant the flexible does equal require acceptance any protection claim “identical approach principle” under traditional to those advanced here. See post, Maher, at 477. I will be an
meats. Yet fear decisions the Court’s extraordinary already public invitation under officials, carefully lobby- pressure from well-financed orchestrated The effect ing approve more such restrictions. campaigns, relegate poverty people will be to millions lives pres- public despair. When elected leaders cower before duty its more than must shirk sure, Court, ever, poor enforce the Constitution for benefit powerless. with whom Me. Bren Justice Blackmun,
Mr. Justice dissenting.* join, nan Marshall Justice Mr. *21 cases, in these allows by
The Court its decisions today, do so, municipalities the and as choose States, such Wade, 410 Roe accomplish indirectly Court v. what the Bolton, (1973)— (1973), Doe U. S. and v. I emphasis, had majority substantial and some con- directly. The Court thought they do could not —said right denies the but cedes the existence of a constitutional on the right ground enjoyment realization and of that For the separate and distinct. existence and realization are financially helpless, indigent woman and concerned, individual be, the opinions concede her as in the three cases the Court’s holdings in the Court’s punitive tragic. Implicit and result for her abor- elsewhere go that she is the condescension reminis- alarming, and almost disingenuous I find that tion. of: “Let eat cake.” cent them distressing in particularly reaches is
The result the Court majority, Doe, presumed post, p. where a Poelker v. campaigned on record shows electing mayor whom the one hospitals nontherapeutic abor- closing public the issue of needy minority own its impresses upon punitively tions, Maher, Commissioner 75-1440, to No. applies also opinion *[This post, al., Roe et p. 464, 75-442, Connecticut No. Social Services of Doe, post, p. Louis, al. Mayor St. et Poelker, 519.] concepts of socially the desirable, publicly acceptable, morally sound, with a touch of the devil-take-the-hind- most. This is kind of thing not the for which our Constitu- tion stands.
The Court’s financial To specious. argument, course, is be sure, welfare funds are limited spread and welfare must be perhaps as best meets the community’s concept its needs. But the cost of nontherapeutic abortion is far less than of maternity cost care delivery, comparison and holds no whatsoever with the welfare costs will burden the State indigents the new support long years and their the long, ahead. acceptable
Neither is knows, it an the Court well answer, as say Congress the States are free to authorize nontherapeutic Why the use of funds for abortions. should any politician incur the demonstrated wrath and noise when opponents nonactivity mere silence and ac- abortion complish opponents want? results world
There is another “out existence of which there,” I ignore either chooses to or fears Court, suspect, grow. will continue to recognize. poverty And so cancer Constitution as a day regard is a for those who This sad in so justice evenhandedly and, force that would serve to all among poorest the lot of the us. would better doing,