U.S. Supreme Court
MAHER v. ROE, 432 U.S. 464 (1977)
432 U.S. 464
MAHER, COMMISSIONER OF SOCIAL SERVICES OF CONNECTICUT v. ROE
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
Argued January 11, 1977
Decided June 20, 1977
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 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. 471-474.
(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,"
[432 U.S. 464, 465] 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. 478-480.
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.
Edmund C. Walsh, Assistant Attorney General of Connecticut argued the cause
for appellant. With him on the brief was Carl R. Ajello, Attorney General.
Lucy V. Katz argued the cause for appellees. With her on the brief were
Kathryn Emmett and Catherine Roraback.*
[Footnote *] 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
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 amicus
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 [432 U.S. 464,
466] 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 abortions1
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).2 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 [432 U.S. 464, 467] 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.3 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). [432 U.S. 464, 468]
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
"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
The District Court enjoined the State from requiring the certificate of
medical necessity for Medicaid-funded abortions.4
[432 U.S. 464, 469] 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.5 But
when a State decides to alleviate some of the
[432 U.S. 464, 470]
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 [legislative] 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,
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
[432 U.S. 464, 471] 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 nonindigents 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).6
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 [432 U.S. 464, 472] affords constitutional
protection against state interference with certain aspects of an individual's
personal "privacy," including a woman's decision to terminate her pregnancy.7 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 [432 U.S. 464, 473]
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
"[t]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
[432 U.S. 464, 474] 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.8 [432 U.S. 464, 475]
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.9 [432 U.S. 464,
476] 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 criminal law 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[d] with the liberty of parents and guardians to
direct the upbringing and education of children under their control." 268 U.S.,
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
[432 U.S. 464, 477] 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 "[i]t is one thing to say that a State
may not prohibit the maintenance of private schools and quite another to say
that such schools must, as a matter of equal protection, receive state aid."
Yet, were we to accept appellees' argument, an indigent parent could challenge
the state policy of favoring public rather than private schools, or of
preferring instruction in English rather than German, on grounds identical in
principle to those advanced here. We think it abundantly clear that a State is
not required to show a compelling interest for its policy choice to favor normal
childbirth any more than a State must so justify its election to fund public but
not private education.10 [432 U.S. 464, 478]
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[ing] 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. . . . [Her] 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.11 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 [432 U.S. 464, 479] 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.12 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 impoverished human beings," we held that
classifications survive equal protection challenge when a "reasonable basis" for
the classification is shown. As the preceding discussion makes clear, the state
interest in encouraging normal childbirth exceeds this minimal level.
The decision whether to expend state funds for 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
[432 U.S. 464, 480] 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.).13
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
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. [432 U.S. 464, 481]
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.]
[Footnote 1] The procedures governing
abortions beyond the first trimester are not challenged here.
[Footnote 2] Section 275 provides in
"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
See n. 4, infra.
[Footnote 3] 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).
[Footnote 4] 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 [432 U.S. 464,
469] 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.
[Footnote 5] 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 held:
"[G]iven the basic position of the marriage relationship in this society's
hierarchy of values and the concomitant state monopolization of the [432 U.S. 464, 470] 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
[Footnote 6] 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
[Footnote 7] 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
[Footnote 8] 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 criminal law, 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 [432 U.S. 464, 475] 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.,
[Footnote 9] 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
[432 U.S. 464, 476] 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).
[Footnote 10] 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
[432 U.S. 464, 478] 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).
[Footnote 11] 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
[Footnote 12] 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).
[Footnote 13] 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.
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 it.
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
[432 U.S. 464, 482] 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.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR. JUSTICE BLACKMUN
The District Court held:
"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).
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,
[432 U.S. 464, 483] 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 apt:
"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).
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 [432 U.S.
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, 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
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 [432 U.S. 464, 485]
fundamental right established by Roe v. Wade. Yet the Court concludes that "the
Connecticut regulation does not impinge upon [that] 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 "[t]here is a basic difference between direct state interference with a
protected activity and state encouragement of an alternative activity consonant
with legislative policy," 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:
"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, [432 U.S. 464,
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.
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 [432 U.S. 464, 487] 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. Verner, 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). [432 U.S. 464, 488]
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
[432 U.S. 464, 489] work on Saturday, but that would have provided such
compensation if her unemployment had stemmed from a number of other nonreligious
causes. Even though there was no proof of indigency in that case, Sherbert held
that "the pressure upon her to forgo [her religious] practice [was]
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
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 [432
U.S. 464, 490]
the holding of Roe v. Wade that "[w]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.
[Footnote *] 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. [432 U.S. 464, 491]
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