|||SUPREME COURT OF THE UNITED STATES
432 U.S. 464, 97 S. Ct. 2376, 53 L. Ed. 2d 484
|||June 20, 1977;
|||MAHER, COMMISSIONER OF SOCIAL SERVICES OF CONNECTICUT
ROE ET AL.
|||APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
|||Edmund C. Walsh, Assistant Attorney General of Connecticut, argued the
cause for appellant. With him on the brief was Carl R. Ajello, Attorney
|||Lucy V. Katz argued the cause for appellees. With her on the brief were
Kathryn Emmett and Catherine Roraback.*
|||Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist,
|||The opinion of the court was delivered by: Powell
|||Appellees, two indigent women who were unable to obtain a physician's
certificate of medical necessity, brought this action attacking the validity
of a Connecticut Welfare Department regulation that limits state Medicaid
benefits for first trimester abortions to those that are "medically necessary."
A three-Judge District Court held that the Equal Protection Clause of the
Fourteenth Amendment forbids the exclusion of nontherapeutic 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, 410 U.S. 113, and Doe v. Bolton, 410 U.S. 179, the view
that "abortion and childbirth... are simply two alternative medical methods
of dealing with pregnancy...." Held:
|||1. The Equal Protection Clause does not require a State participating
in the Medicaid program to pay the expenses incident to nontherapeutic abortions
for indigent women simply because it has made a policy choice to pay expenses
incident to childbirth. Pp. 469-480.
|||(a) Financial need alone does not identify a suspect class for purposes
of equal protection analysis. See San Antonio School Dist. v. Rodriguez,
411 U.S. 1, 29; Dandridge v. Williams, 397 U.S. 471. Pp. 470-471.
|||(b) The Connecticut regulation, does not impinge upon the fundamental
right of privacy recognized in Roe, supra, that protects a woman from unduly
burdensome interference with her freedom to decide whether or not to terminate
her pregnancy. That right implies no limitation on a State's authority to
make a value judgment favoring childbirth over abortion and to implement
that judgment by the allocation of public funds. An indigent woman desiring
an abortion is not disadvantaged by Connecticut's decision to fund childbirth;
she continues as before to be dependent on private abortion services. Pp.
|||(c) A State is not required to show a compelling interest for its policy
choice to favor normal childbirth. Pp. 475-477.
|||(d) Connecticut's regulation is rationally related to and furthers its
"strong and legitimate interest in encouraging normal childbirth," Beal
v. Doe, ante, at 446. The subsidizing of costs incident to childbirth is
a rational means of encouraging childbirth. States, moreover, have a wide
latitude in choosing among competing demands for limited public funds. Pp.
|||2. Since it is not unreasonable for a State to insist upon a prior showing
of medical necessity to insure that its money is being spent only for authorized
purposes, the District Court erred in invalidating the requirements of prior
written request by the pregnant woman and prior authorization by the Department
of Social Services for abortions. Although similar requirements are not
imposed for other medical procedures, such procedures do not involve the
termination of a potential human life. P. 480.
|||408 F.Supp. 660, reversed and remanded.
|||POWELL, J., delivered the opinion of the Court, in which BURGER, C.J.,
and STEWART, WHITE, REHNQUIST, and STEVENS, JJ., joined. BURGER, C.J., filed
a Concurring statement, post, p. 481. BRENNAN, J., filed a Dissenting opinion,
in which MARSHALL and BLACKMUN, JJ., joined, post, p. 482. MARSHALL, J.,
filed a Dissenting opinion, ante, p. 454. BLACKMUN, J., filed a Dissenting
opinion, in which BRENNAN and MARSHALL, JJ., joined, ante, p. 462.
|||MR. JUSTICE POWELL delivered the opinion of the Court.
|||In Beal v. Doe, ante, p. 438, we hold today that Title XIX of the Social
Security Act does not require the funding of nontherapeutic 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 nontherapeutic abortions when it pays for childbirth.
|||A regulation of the Connecticut Welfare Department limits state Medicaid
benefits for first trimester abortions *fn1
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). *fn2
Connecticut enforces this limitation through a system of prior authorization
from its Department of Social Services. In order to obtain authorization
for a first trimester abortion, the hospital or clinic where the abortion
is to be performed must submit, among other things, a certificate from the
patient's attending physician stating that the abortion is medically necessary.
|||This attack on the validity of the Connecticut regulation was brought
against appellant Maher, the Commissioner of Social Services, by appellees
Poe and Roe, two indigent women who were unable to obtain a physician's
certificate of medical necessity. *fn3
In a complaint filed in the United States District Court for the District
of Connecticut, they challenged the regulation both as inconsistent with
the requirements of Title XIX of the Social Security Act, as added, 79 Stat.
343, as amended, 42 U.S.C. § 1396 et seq. (1970 ed. and Supp. V), and
as violative of their constitutional rights, including the Fourteenth Amendment's
guarantees of due process and equal protection. Connecticut originally defended
its regulation on the theory that Title XIX of the Social Security Act prohibited
the funding of abortions that were not medically necessary. After certifying
a class of women unable to obtain Medicaid assistance for abortions because
of the regulation, the District Court held that the Social Security Act
not only allowed state funding of nontherapeutic abortions but also required
it. Roe v. Norton, 380 F.Supp. 726 (1974). On appeal, the Court of Appeals
for the Second Circuit read the Social Security Act to allow, but not to
require, state funding of such abortions. 522 F.2d 928 (1975). Upon remand
for consideration of the constitutional issues raised in the complaint,
a three-Judge District Court was convened. That court invalidated the Connecticut
regulation. 408 F.Supp. 660 (1975).
|||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 nontherapeutic 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, 410 U.S. 113 (1973), and Doe v.
Bolton, 410 U.S. 179 (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...."
408 F.Supp., at 663 n. 3. Relying also on Shapiro v. Thompson, 394 U.S.
618 (1969), and Memorial Hospital v. Maricopa County, 415 U.S. 250 (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."
408 F.Supp., at 663-664. 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."
Id., at 664 (footnote omitted). And any moral objection to abortion was
deemed constitutionally irrelevant: S
|||"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." Ibid.
|||The District Court enjoined the State from requiring the certificate of
medical necessity for Medicaid-funded abortions. *fn4
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." Id., at 665. We noted probable
jurisdiction to consider the constitutionality of the Connecticut regulation.
428 U.S. 908 (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. *fn5
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 Connecticut must
accord equal treatment to both abortion and childbirth, and may not evidence
a policy preference by funding only the medical expenses incident to childbirth.
This challenge to the classifications established by the Connecticut regulation
presents a question arising under the Equal Protection Clause of the Fourteenth
Amendment. The basic framework of analysis of such a claim is well settled:
|||"We must decide, first, whether [state legislation] operates to the disadvantage
of some suspect class or impinges upon a fundamental right explicitly or
implicitly protected by the Constitution, thereby requiring strict judicial
scrutiny....If not, the scheme must still be examined to determine whether
it rationally furthers some legitimate, articulated state purpose and therefore
does not constitute an invidious discrimination...." San Antonio School
Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).I
|||Accord, Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312,
314 (1976). Applying this analysis here, we think the District Court erred
in holding that the Connecticut regulation violated the Equal Protection
Clause of the Fourteenth Amendment.
|||This case involves no discrimination against a suspect class. An indigent
woman desiring an abortion does not come within the limited category of
disadvantaged classes so recognized by our cases. Nor does the fact that
the impact of the regulation falls upon those who cannot pay lead to a different
Conclusion. In a sense, every denial of welfare to an indigent creates a
wealth classification as compared to non-indigents who are able to pay for
the desired goods or services. But this Court has never held that financial
need alone identifies a suspect class for purposes of equal protection analysis.
See Rodriguez, supra, at 29; Dandridge v. Williams, 397 U.S. 471 (1970).
*fn6 Accordingly, 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, 410 U.S. 113 (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 Texas law making it a crime
to procure or attempt to procure an abortion, except on medical advice for
the purpose of saving the life of the mother. Drawing on a group of disparate
cases restricting governmental intrusion, physical coercion, and criminal
prohibition of certain activities, we concluded that the Fourteenth Amendment's
concept of personal liberty affords constitutional protection against state
interference with certain aspects of an individual's personal "privacy,"
including a woman's decision to terminate her pregnancy. *fn7
Id., at 153.
|||The Texas statute imposed severe criminal sanctions on the physicians
and other medical personnel who performed abortions, thus drastically limiting
the availability and safety of the desired service. As MR. JUSTICE STEWART
observed, "it is difficult to imagine a more complete abridgment of a constitutional
freedom...." Id., at 170 (concurring opinion). We held that only a compelling
state interest would justify such a sweeping restriction on a constitutionally
protected interest, and we found no such state interest during the first
trimester. Even when Judged against this demanding standard, however, the
State's dual interest in the health of the pregnant woman and the potential
life of the fetus were deemed sufficient to justify substantial regulation
of abortions in the second and third trimesters. "These interests are separate
and distinct. Each grows in substantiality as the woman approaches term
and, at a point during pregnancy, each becomes 'compelling.'" Id., at 162-163.
In the second trimester, the State's interest in the health of the pregnant
woman justifies state regulation reasonably related to that concern. Id.,
at 163. At viability, usually in the third trimester, the State's interest
in the potential life of the fetus justifies prohibition with criminal penalties,
except where the life or health of the mother is threatened. Id., at 163-164.
|||The Texas law in Roe was a stark example of impermissible interference
with the pregnant woman's decision to terminate her pregnancy. In subsequent
cases, we have invalidated other types of restrictions, different in form
but similar in effect, on the woman's freedom of choice. Thus, in Planned
Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 70-71, n. 11 (1976),
we held that Missouri's requirement of spousal consent was unconstitutional
because it "granted [the husband] the right to prevent unilaterally, and
for whatever reason, the effectuation of his wife's and her physician's
decision to terminate her pregnancy." Missouri had interposed an " absolute
obstacle to a woman's decision that Roe held to be constitutionally protected
from such interference." (Emphasis added.) Although a state-created obstacle
need not be absolute to be impermissible, see Doe v. Bolton, 410 U.S. 179
(1973); Carey v. Population Services International, 431 U.S. 678 (1977),
we have held that a requirement for a lawful abortion "is not unconstitutional
unless it unduly burdens the right to seek an abortion." Bellotti v. Baird,
428 U.S. 132, 147 (1976). We recognized in Bellotti that "not all distinction
between abortion and other procedures is forbidden" and that "he constitutionality
of such distinction will depend upon its degree and the justification for
it." Id., at 149-150. We therefore declined to rule on the constitutionality
of a Massachusetts statute regulating a minor's access to an abortion until
the state courts had had an opportunity to determine whether the statute
authorized a parental veto over the minor's decision or the less burdensome
requirement of parental consultation.
|||These cases recognize a constitutionally protected interest "in making
certain kinds of important decisions" free from governmental compulsion.
Whalen v. Roe, 429 U.S. 589, 599-600, and nn. 24 and 26 (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 Connecticut regulation before us is different in kind from the laws
invalidated in our previous abortion decisions. The Connecticut regulation
places no obstacles -- 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 the woman's decision, but it has imposed no restriction
on access to abortions that was not already there. The indigency that may
make it difficult -- and in some cases, perhaps, impossible -- for some
women to have abortions is neither created nor in any way affected by the
Connecticut regulation. We conclude that the Connecticut regulation does
not impinge upon the fundamental right recognized in Roe. *fn8
|||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. *fn9
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,
262 U.S. 390 (1923), involved a Nebraska law making it criminal to teach
foreign languages to children who had not passed the eighth grade. Id.,
at 396-397. Nebraska's imposition of a criminal sanction on the providers
of desired services makes Meyer closely analogous to Roe. In sustaining
the constitutional challenge brought by a teacher convicted under the law,
the Court held that the teacher's "right thus to teach and the right of
parents to engage him so to instruct their children" were "within the liberty
of the Amendment." 262 U.S., at 400. In Pierce v. Society of Sisters, 268
U.S. 510 (1925), the Court relied on Meyer to invalidate an Oregon requiring
the parent or guardian of a child to send him to a public school, thus precluding
the choice of a private school. Reasoning that the Fourteenth Amendment's
concept of liberty "excludes any general power of the State to standardize
its children by forcing them to accept instruction from public teachers
only," the Court held that the law "unreasonably interfere with the liberty
of parents and guardians to direct the upbringing and education of children
under their control." 268 U.S., at 534-535.
|||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." 262 U.S., at 402. 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. See
Brown v. Board of Education, 347 U.S. 483, 489 n. 4 (1954). Indeed, in Norwood
v. Harrison, 413 U.S. 455, 462 (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 "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. *fn10
|||The question remains whether Connecticut's regulation can be sustained
under the less demanding test of rationality that applies in the absence
of a suspect classification or the impingement of a fundamental right. This
test requires that the distinction drawn between childbirth and nontherapeutic
abortion by the regulation be "rationally related" to a "constitutionally
permissible" purpose. Lindsey v. Normet, 405 U.S. 56, 74 (1972); Massachusetts
Bd. of Retirement v. Murgia, 427 U.S., at 314. We hold that the Connecticut
funding scheme satisfies this standard.
|||Roe itself explicitly acknowledged the State's strong interest in protecting
the potential life of the fetus. That interest exists throughout the pregnancy,
"grow in substantiality as the woman approaches term." 410 U.S., at 162-163.
Because the pregnant woman carries a potential human being, she "cannot
be isolated in her privacy.... privacy is no longer sole and any right of
privacy she possesses must be measured accordingly." Id., at 159. The State
unquestionably has a "strong and legitimate interest in encouraging normal
childbirth," Beal v. Doe, ante, at 446, an interest honored over the centuries.
*fn11 Nor can there
be any question that the Connecticut regulation rationally furthers that
interest. The medical costs associated with childbirth are substantial,
and have increased significantly in recent years. As recognized by the District
Court in this case, such costs are significantly greater than those normally
associated with elective abortions during the first trimester. The subsidizing
of costs incident to childbirth is a rational means of encouraging childbirth.
|||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," Lindsey v. Normet, supra, at
74. Our cases uniformly have accorded the States a wider latitude in choosing
among competing demands for limited public funds. *fn12
In Dandridge v. Williams, 397 U.S., at 485, despite recognition that laws
and regulations allocating welfare funds involve "the most basic economic
needs of impovershed 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 nontherapeutic abortion
is fraught with judgments of policy and value over which opinions are sharply
divided. Our Conclusion that the Connecticut regulation is constitutional
is not based on a weighing of its wisdom or social desirability, for this
Court does not strike down state laws "because they may be unwise, improvident,
or out of harmony with a particular school of thought." Williamson v. Lee
Optical Co., 348 U.S. 483, 488 (1955), quoted in Dandridge v. Williams,
supra, at 484. Indeed, when an issue involves policy choices as sensitive
as those implicated by public funding of nontherapeutic abortions, the appropriate
forum for their resolution in a democracy is the legislature. We should
not forget that "legislatures are ultimate guardians of the liberties and
welfare of the people in quite as great a degree as the courts." Missouri,
K. & T.R. Co. v. May, 194 U.S. 267, 270 (1904) (Holmes, J.). *fn13
|||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 as
construed in Beal v. Doe, ante, p. 438, 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.
|||The District Court also invalidated Connecticut's requirements of prior
written request by the pregnant woman and prior authorization by the Department
of Social Services. Our analysis above rejects the basic premise that prompted
invalidation of these procedural requirements. It is not unreasonable for
a State to insist upon a prior showing of medical necessity to insure that
its money is being spent only for authorized purposes. The simple answer
to the argument that similar requirements are not imposed for other medical
procedures is that such procedures do not involve the termination of a potential
human life. In Planned Parenthood of Central Missouri v. Danforth, 428 U.S.
52 (1976), we held that the woman's written consent to an abortion was not
an impermissible burden under Roe. We think that decision is controlling
on the similar issue here.
|||The judgment of the District Court is reversed, and the case is remanded
for further proceedings consistent with this opinion.
|||It is so ordered.
|||[For Dissenting opinion of MR. JUSTICE MARSHALL, see ante, p. 454.]
|||[For Dissenting opinion of MR. JUSTICE BLACKMUN, see ante, p. 462.]
|||MR. CHIEF JUSTICE BURGER, Concurring.
|||I join the Court's opinion. Like the Court, I do not read any decision
of this Court as requiring a State to finance a nontherapeutic abortion.
The Court's holdings in Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton,
410 U.S. 179 (1973), simply require that a State not create an absolute
barrier to a woman's decision to have an abortion. These precedents do not
suggest that the State is constitutionally required to assist her in procuring
|||From time to time, every state legislature determines that, as a matter
of sound public policy, the government ought to provide certain health and
social services to its citizens. Encouragement of childbirth and child care
is not a novel undertaking in this regard. Various governments, both in
this country and in others, have made such a determination for centuries.
In recent times, they have similarly provided educational services. The
decision to provide any one of these services -- or not to provide them
-- is not required by the Federal Constitution. Nor does the providing of
a particular service require, as a matter of federal constitutional law,
the provision of another.
|||Here, the State of Connecticut has determined that it will finance certain
childbirth expenses. That legislative determination places no state-created
barrier to a woman's choice to procure an abortion, and it does not require
the State to provide it. Accordingly, I concur in the judgment.
|||JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR. JUSTICE BLACKMUN
|||The District Court held: S
|||"When Connecticut refuses to fund elective abortions while funding therapeutic
abortions and prenatal and postnatal care, it weights the choice of the
pregnant mother against choosing to exercise her constitutionally protected
right to an elective abortion.... Her choice is affected not simply by the
absence of payment for the abortion, but by the availability of public funds
for childbirth if she chooses not to have the abortion. When the state thus
infringes upon a fundamental interest, it must assert a compelling state
interest." Roe v. Norton, 408 F.Supp. 660, 663-664 (1975).I
|||This Court reverses on the ground that "the District Court misconceived
the nature and scope of the fundamental right recognized in Roe [ v. Wade,
410 U.S. 113 (1973)]," ante, at 471, 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,"
Ante, at 477, 478. 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."
Ante, at 474. 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." Ibid. 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
Connecticut regulation." Ibid.
|||But a distressing insensitivity to the plight of impoverished pregnant
women is inherent in the Court's analysis. The stark reality 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
|||"To sanction such a ruthless consequence, inevitably resulting from a
money hurdle erected by the State, would justify a latter-day Anatole France
to add one more item to his ironic comments on the 'majestic equality' of
the law. 'The law, in its majestic equality, forbids the rich as well as
the poor to sleep under bridges, to beg in the streets, and to steal bread'...."
Griffin v. Illinois, 351 U.S. 12, 23 (1956) (concurring opinion).I
|||None can take seriously the Court's assurance that its "Conclusion signals
no retreat from Roe [ v. Wade ] or the cases applying it," ante, at 475.
That statement must occasion great surprise among the Courts of Appeals
and District Courts that, relying upon Roe v. Wade and Doe v. Bolton, 410
U.S. 179 (1973), have held that States are constitutionally required to
fund elective abortions if they fund pregnancies carried to term. See Doe
v. Rose, 499 F.2d 1112 (CA10 1974); Wulff v. Singleton, 508 F.2d 1211 (CA8
1974), rev'd and remanded on other grounds, 428 U.S. 106 (1976); Doe v.
Westby, 383 F.Supp. 1143 (WDSD 1974), vacated and remanded (in light of
Hagans v. Lavine, 415 U.S. 528 (1974)), 420 U.S. 968, on remand, 402 F.Supp.
140 (1975); Doe v. Wohlgemuth, 376 F.Supp. 173 (WD Pa. 1974), aff'd on statutory
grounds sub nom. Doe v. Beal, 53 sub nom. Doe v. Beal, 523 F.2d 611 (CA3
1975), rev'd and remanded, ante, p. 438; Doe v. Rampton, 366 F.Supp. 189
(Utah 1973); Klein v. Nassau County Medical Center, 347 F.Supp. 496 (EDNY
1972), vacated and remanded (in light of Roe v. Wade and Doe v. Bolton,
412 U.S. 925 (1973)), on remand, 409 F.Supp. 731 (1976). 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 Connecticut scheme clearly impinges
upon that area of privacy by bringing financial pressures on indigent women
that force them to bear children they would not otherwise have. That is
an obvious impairment of the fundamental right established by Roe v. Wade.
Yet the Court concludes that "the Connecticut regulation does not impinge
upon fundamental right." Ante, at 474. This Conclusion is based on a perceived
distinction, on the one hand, between the imposition of criminal penalties
for the procurement of an abortion present in Roe v. Wade and Doe v. Bolton
and the absolute prohibition present in Planned Parenthood of Central Missouri
v. Danforth, 428 U.S. 52 (1976), and, on the other, the assertedly lesser
inhibition imposed by the Connecticut scheme. Ante, at 472-474.
|||The last time our Brother POWELL espoused the concept in an abortion case
that "here is a basic difference between direct state interference with
a protected activity and state encouragement of an alternative activity
consonant with legislative policy," ante, at 475, the Court refused to adopt
it. Singleton v. Wulff, 428 U.S. 106, 122 (1976). 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.
Id., at 121-122 (concurring in part). Part II-B stated: S
|||"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,' [428 U.S.,] at 128. 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,
the denial of such funding is as complete an 'interdiction' of the exercise
of the right as could ever exist." Id., at 118 n. 7.I
|||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 Georgia criminal
prohibition against elective abortions, struck down the procedural requirements
of certification of hospitals, of approval by a hospital committee, and
of concurrence in the abortion decision by two doctors other than the woman's
own doctor. None of these requirements operated as an absolute bar to elective
abortions in the manner of the criminal prohibitions present in the other
aspect of the case or in Roe, but this was not sufficient to save them from
unconstitutionality. In Planned Parenthood, supra, we struck down a requirement
for spousal consent to an elective abortion which the Court characterizes
today simply as an "absolute obstacle" to a woman's obtaining an abortion.
Ante, at 473. But the obstacle was "absolute" only in the limited sense
that a woman who was unable to persuade her spouse to agree to an elective
abortion was prevented from obtaining one. Any woman whose husband agreed,
or could be persuaded to agree, was free to obtain an abortion, and the
State never imposed directly any prohibition of its own. This requirement
was qualitatively different from the criminal statutes that the Court today
says are comparable, but we nevertheless found it unconstitutional.
|||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, 431 U.S. 678 (1977). That case struck down in its
entirety a New York law forbidding the sale of contraceptives to minors
under 16 years old, limiting persons who could sell contraceptives to pharmacists,
and forbidding advertisement and display of contraceptives. There was no
New York law forbidding use of contraceptives by anyone, including minors
under 16, and therefore no "absolute" prohibition against the exercise of
the fundamental right. Nevertheless the statute was declared unconstitutional
as a burden on the right to privacy. In words that apply fully to Connecticut's
statute, and that could hardly be more explicit, Carey stated: "'Compelling'
is of course the key word; where a decision as fundamental as that whether
to bear or beget a child is involved, regulations imposing a burden on it
may be justified only by compelling state interests, and must be narrowly
drawn to express only those interests." Id., at 686. Carey relied specifically
upon Roe, Doe, and Planned Parenthood, and interpreted them in a way flatly
inconsistent with the Court's interpretation today: "The significance of
these cases is that they establish that the same test must be applied to
state regulations that burden an individual's right to decide to prevent
conception or terminate pregnancy by substantially limiting access to the
means of effectuating that decision as is applied to state statutes that
prohibit the decision entirely." 431 U.S., at 688.
|||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 woman 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.
See, e.g., Sherbert v. Vener, 374 U.S. 398 (1963) (free exercise of religion);
NAACP v. Button, 371 U.S. 415 (1963) (freedom of expression and association),
Linmark Associates v. Township of Willingboro, 431 U.S. 85 (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 malapportionment, have been
involved. See, e.g., Reynolds v. Sims, 377 U.S. 533, 562, 566 (1964); Chapman
v. Meier, 420 U.S. 1 (1975); Connor v. Finch, 431 U.S. 407 (1977). 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. Memorial
Hospital v. Maricopa County, 415 U.S. 250, 257-258 (1974); Dunn v. Blumstein,
405 U.S. 330, 339-341 (1972); Shapiro v. Thompson, 394 U.S. 618 (1969).
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. Griffin v. Illinois,
351 U.S. 12 (1956); Douglas v. California, 372 U.S. 353 (1963); Boddie v.
Connecticut, 401 U.S. 371 (1971).
|||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 Connecticut scheme may not operate
as an absolute bar preventing all indigent women from having abortions is
not critical. What is critical is that the State has inhibited their fundamental
right to make that choice free from state interference.
|||Nor does the manner in which Connecticut has burdened the right freely
to choose to have an abortion save its Medicaid program. The Connecticut
scheme cannot be distinguished from other grants and withholdings of financial
benefits that we have held unconstitutionally burdened a fundamental right.
Sherbert v. Verner, supra, struck down a South Carolina statute that denied
unemployment compensation to a woman who for religious reasons could not
work on Saturday, but that would have provided such compensation if her
unemployment had stemmed from a number of other non-religious causes. Even
though there was no proof of indigency in that case, Sherbert held that
"the pressure upon her to forgo [her religious] practice unmistakable,"
374 U.S., at 404, and therefore held that the effect was the same as a fine
imposed for Saturday worship. Here, though the burden is upon the right
to privacy derived from the Due Process Clause and not upon freedom of religion
under the Free Exercise Clause of the First Amendment, the governing principle
is the same, for Connecticut grants and withholds financial benefits in
a manner that discourages significantly the exercise of a fundamental constitutional
right. Indeed, the case for application of the principle actually is stronger
than in Verner since appellees are all indigents and therefore even more
vulnerable to the financial pressures imposed by the Connecticut regulation.
|||Bellotti v. Baird, 428 U.S. 132, 147 (1976), held, and the Court today
agrees, ante, at 473, that a state requirement is unconstitutional if it
"unduly burdens the right to seek an abortion." Connecticut has "unduly"
burdened the fundamental right of pregnant women to be free to choose to
have an abortion because the State has advanced no compelling state interest
to justify its interference in that choice.
|||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, ante, at 478.* 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 "ith 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. 410
U.S., at 163. 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."
Brief for Appellant 22. 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." 408 F.Supp., at 664.
|||Finally, the reasons that render the Connecticut regulation unconstitutional
also render invalid, in my view, the requirement of a prior written certification
by the woman's attending physician that the abortion is "medically necessary,"
and the requirement that the hospital submit a Request for Authorization
of Professional Services including a "statement indicating the medical need
for the abortion." Brief for Appellees 2-3. For the same reasons, I would
also strike down the requirement for prior authorization of payment by the
Connecticut Department of Social Services.
|||* William F. Hyland, Attorney General, Stephen Skillman, Assistant Attorney
General, and Erminie L. Conley, Deputy Attorney General, filed a brief for
the State of New Jersey as amicus curiae urging reversal.
|||Sylvia A. Law, Harriet F. Pilpel, and Eve W. Paul filed a brief for the
American Public Health Assn. et al. as amici curiae urging affirmance.
|||Patricia A. Butler and Michael A. Wolff filed a brief for Jane Doe as
|||*fn1 The procedures
governing abortions beyond the first trimester are not challenged here.
|||*fn2 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.
|||*fn3 At the time this
action was filed, Mary Poe, a 16-year-old high school junior, had already
obtained an abortion at a Connecticut hospital. Apparently because of Poe's
inability to obtain a certificate of medical necessity, the hospital was
denied reimbursement by the Department of Social Services. As a result,
Poe was being pressed to pay the hospital bill of $244. Susan Roe, an unwed
mother of three children, was unable to obtain an abortion because of her
physician's refusal to certify that the procedure was medically necessary.
By consent, a temporary restraining order was entered by the District Court
enjoining the Connecticut officials from refusing to pay for Roe's abortion.
After the remand from the Court of Appeals, the District Court issued temporary
restraining orders covering three additional women. Roe v. Norton, 408 F.Supp.
660, 663 (1975).
|||*fn4 The District Court's
judgment and order, entered on January 16, 1976, were not stayed. On January
26, 1976, the Department of Social Services revised § 275 to allow
reimbursement for nontherapeutic abortions without prior authorization or
consent. The fact that this revision was made retroactive to January 16,
1976, suggests that the revision was made only for the purpose of interim
compliance with the District Court's judgment and order, which were entered
the same date. No suggestion of mootness has been made by any of the parties,
and this appeal was taken and submitted on the theory that Connecticut desires
to reinstate the invalidated regulation. Under these circumstances, the
subsequent revision of the regulation does not render the case moot. In
any event, there would remain the denial of reimbursement to Mary Poe, and
similarly situated members of the class, under the prerevision regulation.
See 380 F.Supp., at 730 n. 3. The State has asserted no Eleventh Amendment
defense to this relief sought by Poe and those whom she represents.
|||*fn5 Boddie v. Connecticut,
401 U.S. 371 (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. Id., at 372. The Court
|||"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." Id., at 374.
Because Connecticut has made no attempt to monopolize the means for terminating
pregnancies through abortion the present case is easily distinguished from
Boddie. See also United States v. Kras, 409 U.S. 434 (1973); Ortwein v.
Schwab, 410 U.S. 656 (1973).
|||*fn6 In cases such as
Griffin v. Illinois, 351 U.S. 12 (1956) and Douglas v. California, 372 U.S.
353 (1963), the Court held that the Equal Protection Clause requires States
that allow appellate review of criminal convictions to provide indigent
defendants with trial transcripts and appellate counsel. These cases are
grounded in the criminal Justice system, a governmental monopoly in which
participation is compelled. Cf. n. 5, (supra) . Our subsequent decisions
have made it clear that the principles underlying Griffin and Douglas do
not extend to legislative classifications generally.
|||*fn7 A woman has at
least an equal right to choose to carry her fetus to term as to choose to
abort it. Indeed, the right of procreation without state interference has
long been recognized as "one of the basic civil rights of man... fundamental
to the very existence and survival of the race." Skinner v. Oklahoma ex
rel. Williamson, 316 U.S. 535, 541 (1942).
|||*fn8 Appellees rely
on Shapiro v. Thompson, 394 U.S. 618 (1969), and Memorial Hospital v. Maricopa
County, 415 U.S. 250 (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 Maricopa County
is misplaced. In our view there is only a semantic difference between appellees'
assertion that the Connecticut law unduly interferes with a woman's right
to terminate her pregnancy and their assertion that it penalizes the exercise
of that right. Penalties are most familiar to the , where criminal sanctions
are imposed as a consequence of proscribed conduct. Shapiro and Maricopa
County recognized that denial of welfare to one who had recently exercised
the right to travel across state lines was sufficiently analogous to a criminal
fine to justify strict judicial scrutiny.
|||If Connecticut denied general welfare benefits to all women who had obtained
abortions and who were otherwise entitled to the benefits, we would have
a close analogy to the facts in Shapiro, and strict scrutiny might be appropriate
under either the penalty analysis or the analysis we have applied in our
previous abortion decisions. But the claim here is that the State "penalizes"
the woman's decision to have an abortion by refusing to pay for it. Shapiro
and Maricopa County did not hold that States would penalize the right to
travel interstate by refusing to pay the bus fares of the indigent travelers.
We find no support in the right-to-travel cases for the view that Connecticut
must show a compelling interest for its decision not to fund elective abortions.
|||Sherbert v. Verner, 374 U.S. 398 (1963), similarly is inapplicable here.
In addition, that case was decided in the significantly different context
of a constitutionally imposed "governmental obligation of neutrality" originating
in the Establishment and Freedom of Religion Clauses of the First Amendment.
Id., at 409.
|||*fn9 In Buckley v. Valeo,
424 U.S. 1 (1976), we drew this distinction in sustaining the public financing
of the Federal Election Campaign Act of 1971. The Act provided public funds
to some candidates but not to others. We rejected an asserted analogy to
cases such as American Party of Texas v. White, 415 U.S. 767 (1974), which
involved restrictions on access to the electoral process:
|||"These cases, however, dealt primarily with state laws requiring a candidate
to satisfy certain requirements in order to have his name appear on the
ballot. These were, of course, direct burdens not only on the candidate's
ability to run for office but also on the voter's ability to voice preferences
regarding representative government and contemporary issues. In contrast,
the denial of public financing to some Presidential candidates is not restrictive
of voters' rights and less restrictive of candidates'. Subtitle H does not
prevent any candidate from getting on the ballot or any voter from casting
a vote for the candidate of his choice; the inability, if any, of minority
party candidates to wage effective campaigns will derive not from lack of
public funding but from their inability to raise private contributions.
Any disadvantage suffered by operation of the eligibility formulae under
Subtitle H is thus limited to the claimed denial of the enhancement of opportunity
to communicate with the electorate that the formulae afford eligible candidates."
424 U.S., at 94-95 (emphasis added; footnote omitted).
|||*fn10 In his Dissenting
opinion, MR. JUSTICE BRENNAN rejects the distinction between direct state
interference with a protected activity and state encouragement of an alternative
activity and argues that our previous abortion decisions are inconsistent
with today's decision. But as stated above, all of those decisions involved
laws that placed substantial state-created obstacles in the pregnant woman's
path to an abortion. Our recent decision in Carey v. Population Services
International, 431 U.S. 678 (1977), differs only in that it involved state-created
restrictions on access to contraceptives, rather than abortions. MR. JUSTICE
BRENNAN simply asserts that the Connecticut regulation "is an obvious impairment
of the fundamental right established by Roe v. Wade." Post, at 484-485.
The only suggested source for this purportedly "obvious" Conclusion is a
quotation from Singleton v. Wulff, 428 U.S. 106 (1976). Yet, as MR. JUSTICE
BLACKMUN was careful to note at the beginning of his opinion in Singleton,
that case presented "issues [of standing] not going to the merits of this
dispute." Id., at 108. Significantly, MR. JUSTICE BRENNAN makes no effort
to distinguish or explain the much more analogous authority of Norwood v.
Harrison, 413 U.S. 455 (1973).
|||*fn11 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.
|||*fn12 See generally
Wilkinson, The Supreme Court, the Equal Protection Clause, and the Three
Faces of Constitutional Equality, 61 Va. L. Rev. 945, 998-1017 (1975).
|||*fn13 Much of the
rhetoric of the three Dissenting opinions would be equally applicable if
Connecticut had elected not to fund either abortions or childbirth. Yet
none of the Dissents goes so far as to argue that the Constitution requires
such assistance for all indigent pregnant women.
|||* The Court also suggests, ante, at 478 n. 11, that a "State may have
legitimate demographic concerns about its rate of population growth" which
might justify a choice to favor live births over abortions. While it is
conceivable that under some circumstances this might be an appropriate factor
to be considered as part of a State's "compelling" interest, no one contends
that this is the case here, or indeed that Connecticut has any demographic
concerns at all about the rate of its population growth.
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