U.S. Supreme Court
HARRIS v. McRAE, 448 U.S. 297 (1980)
448 U.S. 297
HARRIS, SECRETARY OF HEALTH AND HUMAN SERVICES v. McRAE ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
Argued April 21, 1980.
Decided June 30, 1980.
Title XIX of the Social Security Act established the Medicaid program in 1965
to provide federal financial assistance to State that choose to reimburse
certain costs of medical treatment for needy persons. Since 1976, versions of
the so-called Hyde Amendment have severely limited the use of any federal funds
to reimburse the cost of abortions under the Medicaid program. Actions were
brought in Federal District Court by appellees (including indigent pregnant
women, who sued on behalf of all women similarly situated, the New York City
Health and Hospitals Corp., which operates hospitals providing abortion
services, officers of the Women's Division of the Board of Global Ministries of
the United Methodist Church (Women's Division), and the Women's Division
itself), seeking to enjoin enforcement of the Hyde Amendment on grounds that it
violates, inter alia, the Due Process Clause of the Fifth Amendment and the
Religion Clauses of the First Amendment, and that, despite the Hyde Amendment, a
participating State remains obligated under Title XIX to fund all medically
necessary abortions. Ultimately, the District Court, granting injunctive relief,
held that the Hyde Amendment had substantively amended Title XIX to relieve a
State of any obligation to fund those medically necessary abortions for which
federal reimbursement is unavailable, but that the Amendment violates the equal
protection component of the Fifth Amendment's Due Process Clause and the Free
Exercise Clause of the First Amendment.
1. Title XIX does not require a participating State to pay for those
medically necessary abortions for which federal reimbursement is unavailable
under the Hyde Amendment. Pp. 306-311.
(a) The cornerstone of Medicaid is financial contribution by both the
Federal Government and the participating State. Nothing in Title XIX as
originally enacted or in its legislative history suggests that Congress
intended to require a participating State to assume the full costs of
providing any health services in its Medicaid plan. To the contrary,
Congress' purpose in enacting Title XIX was to provide federal financial [448 U.S. 297, 298] assistance for all
legitimate state expenditures under an approved Medicaid plan. Pp. 308-309.
(b) Nor does the Hyde Amendment's legislative history contain any
indication that Congress intended to shift the entire cost of some medically
necessary abortions to the participating States, but rather suggests that
Congress has always assumed that a participating State would not be required
to fund such abortions once federal funding was withdrawn pursuant to the
Hyde Amendment. Pp. 310-311.
2. The funding restrictions of the Hyde Amendment do not impinge on the
"liberty" protected by the Due Process Clause of the Fifth Amendment held in
Roe v. Wade, 410 U.S. 113, 168, to include the freedom of a woman to decide
whether to terminate a pregnancy. Pp. 312-318.
(a) The Hyde Amendment places no governmental obstacle in the path of a
woman who chooses to terminate her pregnancy, but rather, by means of
unequal subsidization of abortion and other medical services, encourages
alternative activity deemed in the public interest. Cf. Maher v. Roe, 432
U.S. 464. P. 315.
(b) Regardless of whether the freedom of a woman to choose to terminate her
pregnancy for health reasons lies at the core or the periphery of the due
process liberty recognized in Wade, supra, it does not follow that a woman's
freedom of choice carries with it a constitutional entitlement to the
financial resources to avail herself of the full range of protected choices.
Although government may not place obstacles in the path of a woman's
exercise of her freedom of choice, it need not remove those not of its own
creation, and indigency falls within the latter category. Although Congress
has opted to subsidize medically necessary services generally, but not
certain medically necessary abortions, the fact remains that the Hyde
Amendment leaves an indigent woman with at least the same range of choice in
deciding whether to obtain a medically necessary abortion as she would have
had if Congress had chosen to subsidize no health care costs at all. Pp.
(c) To translate the limitation on governmental power implicit in the Due
Process Clause into an affirmative funding obligation would require Congress
to subsidize the medically necessary abortion of an indigent woman even if
Congress had not enacted a Medicaid program to subsidize other medically
necessary services. Nothing in the Due Process Clause supports such an
extraordinary result. Pp. 317-318.
3. Nor does the Hyde Amendment violate the Establishment Clause of the
First Amendment. The fact that the funding restrictions in the Hyde
Amendment may coincide with the religious tenets of the Roman
[448 U.S. 297, 299]
Catholic Church does not, without more, contravene that Clause. Pp. 319-320.
4. Appellees lack standing to raise a challenge to the Hyde Amendment under
the Free Exercise Clause of the First Amendment. The named appellees
consisting of indigent pregnant women suing on behalf of other women
similarly situated lack such standing because none alleged, much less
proved, that she sought an abortion under compulsion of religious belief.
The named appellees consisting of officers of the Women's Division, although
they provided a detailed description of their religious beliefs, failed to
allege either that they are or expect to be pregnant or that they are
eligible to receive Medicaid, and they therefore lacked the personal stake
in the controversy needed to confer standing to raise such a challenge to
the Hyde Amendment. And the Women's Division does not satisfy the standing
requirements for an organization to assert the rights of its membership,
since the asserted claim is one that required participation of the
individual members for a proper understanding and resolution of their free
exercise claims. Pp. 320-321.
5. The Hyde Amendment does not violate the equal protection component of
the Due Process Clause of the Fifth Amendment. Pp. 321-326.
(a) While the presumption of constitutional validity of a statutory
classification that does not itself impinge on a right or liberty protected
by the Constitution disappears if the classification is predicated on
criteria that are "suspect," the Hyde Amendment is not predicated on a
constitutionally suspect classification. Maher v. Roe, supra. Although the
impact of the Amendment falls on the indigent, that fact does not itself
render the funding restrictions constitutionally invalid, for poverty,
standing alone, is not a suspect classification. Pp. 322-323.
(b) Where, as here, Congress has neither invaded a substantive
constitutional right or freedom, nor enacted legislation that purposefully
operates to the detriment of a suspect class, the only requirement of equal
protection is that congressional action be rationally related to a
legitimate governmental interest. The Hyde Amendment satisfies that
standard, since, by encouraging childbirth except in the most urgent
circumstances, it is rationally related to the legitimate governmental
objective of protecting potential life. Pp. 324-326.
491 F. Supp. 630, reversed and remanded.
STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and
WHITE, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed a concurring
opinion, post, p. 327. BRENNAN, J., filed a dissenting opinion, in which
MARSHALL and BLACKMUN, JJ., joined, post, p. 329. MARSHALL,
[448 U.S. 297, 300] J., post, p. 337, BLACKMUN, J., post, p. 348, and
STEVENS, J., post, p. 349, filed dissenting opinions.
Solicitor General McCree argued the cause for appellant. With him on the
briefs were Assistant Attorney General Daniel and Eloise E. Davies. Victor G.
Rosenblum, Dennis J. Horan, John D. Gorby, Carl Anderson, Patrick A. Trueman, A.
Lawrence Washburn, Jr., and Gerald E. Bodell filed briefs for Buckley et al.,
appellees under this Court's Rule 10 (4), in support of appellant.
Rhonda Copelon argued the cause for appellees McRae et al. With her on the
briefs were Nancy Stearns, Sylvia Law, Ellen K. Sawyer, Janet Benshoof, Judith
Levin, Harriet Pilpel, and Eve Paul.*
[Footnote *] Briefs of amici curiae urging reversal were
filed by John T. Noonan, Jr., and William B. Ball for Representative Jim Wright
et al.; and by Wilfred R. Caron and Patrick F. Geary for the United States
Catholic Conference. Briefs of amici curiae urging affirmance were filed by
Robert Abrams, Attorney General, Shirley Adelson Siegel, Solicitor General, and
Peter Bienstock, Arnold D. Fleischer, and Barbara E. Levy, Assistant Attorneys
General, for the State of New York et al., joined by Rufus L. Edmisten, Attorney
General of North Carolina, William F. O'Connell, Special Deputy Attorney
General, and Steven Mansfield Shaber, Associate Attorney General, and James A.
Redden, Attorney General of Oregon; by Leo Pfeffer for the American Ethical
Union et al.; by Barbara Ellen Handschu for the Association of Legal Aid
Attorneys of the City of New York - District 65 - U. A. W. et al.; and by
Phyllis N. Segal and Judith I. Avner for the National Organization for Women et
al. Briefs of amici curiae were filed by Nadine Taub for the Bergen-Passaic
Health Systems Agency et al.; by James G. Kolb for the Coalition for Human
Justice; by Sanford Jay Rosen for the National Council of Churches of Christ in
the U.S. A.; and by Sanford Jay Rosen for the United Presbyterian Church in the
MR. JUSTICE STEWART delivered the opinion of the Court.
This case presents statutory and constitutional questions concerning the
public funding of abortions under Title XIX of the Social Security Act, commonly
known as the "Medicaid" Act, and recent annual Appropriations Acts containing [448 U.S. 297, 301] the so-called "Hyde Amendment." The
statutory question is whether Title XIX requires a State that participates in
the Medicaid program to fund the cost of medically necessary abortions for which
federal reimbursement is unavailable under the Hyde Amendment. The
constitutional question, which arises only if Title XIX imposes no such
requirement, is whether the Hyde Amendment, by denying public funding for
certain medically necessary abortions, contravenes the liberty or equal
protection guarantees of the Due Process Clause of the Fifth Amendment, or
either of the Religion Clauses of the First Amendment.
The Medicaid program was created in 1965, when Congress added
Title XIX to the Social Security Act, 79 Stat. 343, as amended, 42 U.S.C. 1396
et seq. (1976 ed. and Supp. II), for the purpose of providing federal financial
assistance to States that choose to reimburse certain costs of medical treatment
for needy persons. Although participation in the Medicaid program is entirely
optional, once a State elects to participate, it must comply with the
requirements of Title XIX.
One such requirement is that a participating State agree to provide financial
assistance to the "categorically needy"1
with respect to five general areas of medical treatment: (1) inpatient hospital
services, (2) outpatient hospital services, (3) other laboratory and X-ray
services, (4) skilled nursing [448 U.S. 297, 302]
facilities services, periodic screening and diagnosis of children, and family
planning services, and (5) services of physicians. 42 U.S.C. 1396a (a) (13) (B),
1396d (a) (1)-(5). Although a participating State need not "provide funding for
all medical treatment falling within the five general categories, [Title XIX]
does require that [a] state Medicaid pla[n] establish `reasonable standards . .
. for determining . . . the extent of medical assistance under the plan which .
. . are consistent with the objectives of [Title XIX].' 42 U.S.C. 1396a (a)
(17)." Beal v. Doe, 432 U.S. 438, 441.
Since September 1976, Congress has prohibited - either by an amendment to the
annual appropriations bill for the Department of Health, Education, and Welfare2 or by a joint resolution - the use of any federal funds to
reimburse the cost of abortions under the Medicaid program except under certain
specified circumstances. This funding restriction is commonly known as the "Hyde
Amendment," after its original congressional sponsor, Representative Hyde. The
current version of the Hyde Amendment, applicable for fiscal year 1980,
"[N]one of the funds provided by this joint resolution shall be used to
perform abortions except where the life of the mother would be endangered if
the fetus were carried to term; or except for such medical procedures
necessary for the victims of rape or incest when such rape or incest has
been reported promptly to a law enforcement agency or public health
service." Pub. L. 96-123, 109, 93 Stat. 926.
See also Pub. L. 96-86, 118, 93 Stat. 662. This version of the Hyde Amendment
is broader than that applicable for fiscal year 1977, which did not include the
"rape or incest" [448 U.S. 297, 303]
exception, Pub. L. 94-439, 209, 90 Stat. 1434, but narrower than that applicable
for most of fiscal year 1978,3 and all of fiscal year 1979,
which had an additional exception for "instances where severe and long-lasting
physical health damage to the mother would result if the pregnancy were carried
to term when so determined by two physicians," Pub. L. 95-205, 101, 91 Stat.
1460; Pub. L. 95-480, 210, 92 Stat. 1586.4
On September 30, 1976, the day on which Congress enacted the initial version
of the Hyde Amendment, these consolidated cases were filed in the District Court
for the Eastern District of New York. The plaintiffs - Cora McRae, a New York
Medicaid recipient then in the first trimester of a pregnancy that she wished to
terminate, the New York City Health and Hospitals Corp., a public benefit
corporation that operates 16 hospitals, 12 of which provide abortion services,
and others - sought to enjoin the enforcement of the funding restriction on
abortions. They alleged that the Hyde Amendment violated the First, Fourth,
Fifth, and Ninth Amendments of the Constitution insofar as it limited the
funding of abortions to those necessary to save the life of the mother, while
permitting the funding of costs associated with childbirth. Although the sole
named defendant was the Secretary of Health, Education, and Welfare, the
District Court permitted Senators James L. Buckley and Jesse A. Helms and
Representative Henry J. Hyde to intervene as defendants.5 [448 U.S. 297, 304]
After a hearing, the District Court entered a preliminary injunction
prohibiting the Secretary from enforcing the Hyde Amendment and requiring him to
continue to provide federal reimbursement for abortions under the standards
applicable before the funding restriction had been enacted. McRae v. Mathews,
421 F. Supp. 533. Although stating that it had not expressly held that the
funding restriction was unconstitutional, since the preliminary injunction was
not its final judgment, the District Court noted that such a holding was
"implicit" in its decision granting the injunction. The District Court also
certified the McRae case as a class action on behalf of all pregnant or
potentially pregnant women in the State of New York eligible for Medicaid and
who decide to have an abortion within the first 24 weeks of pregnancy, and of
all authorized providers of abortion services to such women. Id., at 543.
The Secretary then brought an appeal to this Court. After deciding Beal v.
Doe, 432 U.S. 438, and Maher v. Roe, 432 U.S. 464, we vacated the injunction of
the District Court and remanded the case for reconsideration in light of those
decisions. Califano v. McRae, 433 U.S. 916.
On remand, the District Court permitted the intervention of several
additional plaintiffs, including (1) four individual Medicaid recipients who
wished to have abortions that allegedly were medically necessary but did not
qualify for federal funds under the versions of the Hyde Amendment applicable in
fiscal years 1977 and 1978, (2) several physicians who perform abortions for
Medicaid recipients, (3) the Women's Division of the Board of Global Ministries
of the United Methodist Church (Women's Division), and (4) two individual
officers of the Women's Division.
An amended complaint was then filed, challenging the various versions of the
Hyde Amendment on several grounds. At the outset, the plaintiffs asserted that
the District Court need not address the constitutionality of the Hyde Amendment [448 U.S. 297, 305] because, in their view, a
participating State remains obligated under Title XIX to fund all medically
necessary abortions, even if federal reimbursement is unavailable. With regard
to the constitutionality of the Hyde Amendment, the plaintiffs asserted, among
other things, that the funding restrictions violate the Religion Clauses of the
First Amendment and the Due Process Clause of the Fifth Amendment.
After a lengthy trial, which inquired into the medical reasons for abortions
and the diverse religious views on the subject,6 the District
Court filed an opinion and entered a judgment invalidating all versions of the
Hyde Amendment on constitutional grounds.7 The District Court rejected the plaintiffs' statutory argument,
concluding that even though Title XIX would otherwise have required a
participating State to fund medically necessary abortions, the Hyde Amendment
had substantively amended Title XIX to relieve a State of that funding
obligation. Turning then to the constitutional issues, the District Court
concluded that the Hyde Amendment, though valid under the Establishment Clause,8 violates the equal protection component of the Fifth
Amendment's Due Process Clause and the Free Exercise Clause of the First
Amendment. With regard to the Fifth Amendment, the District Court noted that
when an abortion is "medically necessary to safeguard the pregnant woman's
health, . . . the disentitlement to [M]edicaid assistance impinges directly on
the woman's right to decide, in consultation with her physician and in reliance
on his judgment, to terminate [448 U.S. 297, 306] her pregnancy in order to
preserve her health."9 McRae v. Califano, 491
F. Supp. 630, 737. The court concluded that the Hyde Amendment violates the
equal protection guarantee because, in its view, the decision of Congress to
fund medically necessary services generally but only certain medically necessary
abortions serves no legitimate governmental interest. As to the Free Exercise
Clause of the First Amendment, the court held that insofar as a woman's decision
to seek a medically necessary abortion may be a product of her religious beliefs
under certain Protestant and Jewish tenets, the funding restrictions of the Hyde
Amendment violate that constitutional guarantee as well.
Accordingly, the District Court ordered the Secretary to "[c]ease to give
effect" to the various versions of the Hyde Amendment insofar as they forbid
payments for medically necessary abortions. It further directed the Secretary to
"[c]ontinue to authorize the expenditure of federal matching funds [for such
abortions]." App. 87. In addition, the court recertified the McRae case as a
nationwide class action on behalf of all pregnant and potentially pregnant women
eligible for Medicaid who wish to have medically necessary abortions, and of all
authorized providers of abortions for such women.10
The Secretary then applied to this Court for a stay of the judgment pending
direct appeal of the District Court's decision. We denied the stay, but noted
probable jurisdiction of this appeal. 444 U.S. 1069.
It is well settled that if a case may be decided on either
statutory or constitutional grounds, this Court, for sound
[448 U.S. 297, 307] jurisprudential reasons, will inquire first into the
statutory question. This practice reflects the deeply rooted doctrine "that we
ought not to pass on questions of constitutionality . . . unless such
adjudication is unavoidable." Spector Motor Service, Inc. v. McLaughlin, 323
U.S. 101, 105. Accordingly, we turn first to the question whether Title XIX
requires a State that participates in the Medicaid program to continue to fund
those medically necessary abortions for which federal reimbursement is
unavailable under the Hyde Amendment. If a participating State is under such an
obligation, the constitutionality of the Hyde Amendment need not be drawn into
question in the present case, for the availability of medically necessary
abortions under Medicaid would continue, with the participating State
shouldering the total cost of funding such abortions.
The appellees assert that a participating State has an independent funding
obligation under Title XIX because (1) the Hyde Amendment is, by its own terms,
only a limitation on federal reimbursement for certain medically necessary
abortions, and (2) Title XIX does not permit a participating State to exclude
from its Medicaid plan any medically necessary service solely on the basis of
diagnosis or condition, even if federal reimbursement is unavailable for that
It is thus the appellees' view that the effect of the Hyde Amendment is to
withhold federal reimbursement for certain medically necessary abortions, but
not to relieve a participating [448 U.S. 297,
308] State of its duty under Title XIX to provide for such abortions in
its Medicaid plan.
The District Court rejected this argument. It concluded that, although Title
XIX would otherwise have required a participating State to include medically
necessary abortions in its Medicaid program, the Hyde Amendment substantively
amended Title XIX so as to relieve a State of that obligation. This construction
of the Hyde Amendment was said to find support in the decisions of two Courts of
Appeals, Preterm, Inc. v. Dukakis, 591 F.2d 121 (CA1 1979), and Zbaraz v. Quern,
596 F.2d 196 (CA7 1979), and to be consistent with the understanding of the
effect of the Hyde Amendment by the Department of Health, Education, and Welfare
in the administration of the Medicaid program.
We agree with the District Court, but for somewhat different reasons. The
Medicaid program created by Title XIX is a cooperative endeavor in which the
Federal Government provides financial assistance to participating States to aid
them in furnishing health care to needy persons. Under this system of
"cooperative federalism," King v. Smith, 392 U.S. 309, 316, if a State agrees to
establish a Medicaid plan that satisfies the requirements of Title XIX, which
include several mandatory categories of health services, the Federal Government
agrees to pay a specified percentage of "the total amount expended . . . as
medical assistance under the State plan. . . ." 42 U.S.C. 1396b (a) (1). The
cornerstone of Medicaid is financial contribution by both the Federal Government
and the participating State. Nothing in Title XIX as originally enacted, or in
its legislative history, suggests that Congress intended to require a
participating State to assume the full costs of providing any health services in
its Medicaid plan. Quite the contrary, the purpose of Congress in enacting Title
XIX was to provide federal financial assistance for all legitimate state
expenditures under an approved Medicaid plan. See S. Rep. No. 404, 89th Cong.,
1st [448 U.S. 297, 309]
Sess., pt. 1, pp. 83-85 (1965); H. R. Rep. No. 213, 89th Cong., 1st Sess., 72-74
Since the Congress that enacted Title XIX did not intend a participating
State to assume a unilateral funding obligation for any health service in an
approved Medicaid plan, it follows that Title XIX does not require a
participating State to include in its plan any services for which a subsequent
Congress has withheld federal funding.12 Title XIX was designed as a cooperative
program of shared financial responsibility, not as a device for the Federal
Government to compel a State to provide services that Congress itself is
unwilling to fund. Thus, if Congress chooses to withdraw federal funding for a
particular service, a State is not obliged to continue to pay for that service
as a condition of continued federal financial support of other services. This is
not to say that Congress may not now depart from the original design of Title
XIX under which the Federal Government shares the financial responsibility for
expenses incurred under an approved Medicaid plan. It is only to say that,
absent an indication of contrary legislative intent by a subsequent Congress,
Title XIX does not obligate a participating State to pay for those medical
services for which federal reimbursement is unavailable.13 [448 U.S. 297, 310]
Thus, by the normal operation of Title XIX, even if a State were otherwise
required to include medically necessary abortions in its Medicaid plan, the
withdrawal of federal funding under the Hyde Amendment would operate to relieve
the State of that obligation for those abortions for which federal reimbursement
is unavailable.14 The legislative history of the Hyde Amendment contains no
indication whatsoever that Congress intended to shift the entire cost of such
services to the participating States. See Zbaraz v. Quern, supra, at 200 ("no
one, whether supporting or opposing the Hyde Amendment, ever suggested that
state funding would be required"). Rather, the legislative history suggests that
Congress has always assumed that a participating State would not be required to
fund medically necessary abortions once federal funding was withdrawn pursuant
to the Hyde Amendment.15 See Preterm, Inc. v. Dukakis, supra, at 130 ("[t]he universal
assumption in debate was that if the Amendment passed there would be no
requirement that states carry on the service"). Accord, Zbaraz v. Quern, supra,
at 200; Hodgson v. Board of County Comm'rs, 614 F.2d 601, 612-613 (CA8 [448 U.S. 297, 311] 1980); Roe v. Casey, 623 F.2d 829,
834-837 (CA3 1980). Accordingly, we conclude that Title XIX does not require a
participating State to pay for those medically necessary abortions for which
federal reimbursement is unavailable under the Hyde Amendment.16
Having determined that Title XIX does not obligate a
participating State to pay for those medically necessary abortions for which
Congress has withheld federal funding, we must consider the constitutional
validity of the Hyde Amendment. The appellees assert that the funding
restrictions of the Hyde Amendment violate several rights secured by the
Constitution - (1) the right of a woman, implicit in the Due Process Clause of
the Fifth Amendment, to decide whether to terminate a pregnancy, (2) the
prohibition under the Establishment Clause of the First Amendment against any
"law respecting an establishment of religion," and (3) the right to freedom of
religion protected by the Free Exercise Clause of the First Amendment. The
appellees also contend that, quite apart from substantive constitutional rights,
the Hyde Amendment violates the equal protection component of the Fifth
[448 U.S. 297, 312]
It is well settled that, quite apart from the guarantee of equal protection,
if a law "impinges upon a fundamental right explicitly or implicitly secured by
the Constitution [it] is presumptively unconstitutional." Mobile v. Bolden, 446
U.S. 55, 76 (plurality opinion). Accordingly, before turning to the equal
protection issue in this case, we examine whether the Hyde Amendment violates
any substantive rights secured by the Constitution.
We address first the appellees' argument that the Hyde
Amendment, by restricting the availability of certain medically necessary
abortions under Medicaid, impinges on the "liberty" protected by the Due Process
Clause as recognized in Roe v. Wade, 410 U.S. 113, and its progeny.
In the Wade case, this Court held unconstitutional a Texas statute making it
a crime to procure or attempt an abortion except on medical advice for the
purpose of saving the mother's life. The constitutional underpinning of Wade was
a recognition that the "liberty" protected by the Due Process Clause of the
Fourteenth Amendment includes not only the freedoms explicitly mentioned in the
Bill of Rights, but also a freedom of personal choice in certain matters of
marriage and family life.18 This implicit constitutional liberty, the Court in Wade held,
includes the freedom of a woman to decide whether to terminate a pregnancy. [448 U.S. 297, 313]
But the Court in Wade also recognized that a State has legitimate interests
during a pregnancy in both ensuring the health of the mother and protecting
potential human life. These state interests, which were found to be "separate
and distinct" and to "gro[w] in substantiality as the woman approaches term,"
id., at 162-163, pose a conflict with a woman's untrammeled freedom of choice.
In resolving this conflict, the Court held that before the end of the first
trimester of pregnancy, neither state interest is sufficiently substantial to
justify any intrusion on the woman's freedom of choice. In the second trimester,
the state interest in maternal health was found to be sufficiently substantial
to justify regulation reasonably related to that concern. And at viability,
usually in the third trimester, the state interest in protecting the potential
life of the fetus was found to justify a criminal prohibition against abortions,
except where necessary for the preservation of the life or health of the mother.
Thus, inasmuch as the Texas criminal statute allowed abortions only where
necessary to save the life of the mother and without regard to the stage of the
pregnancy, the Court held in Wade that the statute violated the Due Process
Clause of the Fourteenth Amendment.
In Maher v. Roe, 432 U.S. 464, the Court was presented with the question
whether the scope of personal constitutional freedom recognized in Roe v. Wade
included an entitlement to Medicaid payments for abortions that are not
medically necessary. At issue in Maher was a Connecticut welfare regulation
under which Medicaid recipients received payments for medical services incident
to childbirth, but not for medical services incident to nontherapeutic
abortions. The District Court held that the regulation violated the Equal
Protection Clause of the Fourteenth Amendment because the unequal subsidization
of childbirth and abortion impinged on the "fundamental right to abortion"
recognized in Wade and its progeny. [448 U.S. 297, 314]
It was the view of this Court that "the District Court misconceived the
nature and scope of the fundamental right recognized in Roe." 432 U.S., at 471.
The doctrine of Roe v. Wade, the Court held in Maher, "protects the woman from
unduly burdensome interference with her freedom to decide whether to terminate
her pregnancy," id., at 473-474, such as the severe criminal sanctions at issue
in Roe v. Wade, supra, or the absolute requirement of spousal consent for an
abortion challenged in Planned Parenthood of Central Missouri v. Danforth, 428
But the constitutional freedom recognized in Wade and its progeny, the Maher
Court explained, did not prevent Connecticut from making "a value judgment
favoring childbirth over abortion, and . . . implement[ing] that judgment by the
allocation of public funds." 432 U.S., at 474. As the Court elaborated:
"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." Ibid.
The Court in Maher noted that its description of the doctrine recognized in
Wade and its progeny signaled "no retreat" from those decisions. In explaining
why the constitutional [448 U.S. 297, 315]
principle recognized in Wade and later cases - protecting a woman's freedom of
choice - did not translate into a constitutional obligation of Connecticut to
subsidize abortions, the Court cited the "basic difference between direct state
interference with a protected activity and state encouragement of an alternative
activity consonant with legislative policy. Constitutional concerns are greatest
when the State attempts to impose its will by force of law; the State's power to
encourage actions deemed to be in the public interest is necessarily far
broader." 432 U.S., at 475-476 (footnote omitted). Thus, even though the
Connecticut regulation favored childbirth over abortion by means of
subsidization of one and not the other, the Court in Maher concluded that the
regulation did not impinge on the constitutional freedom recognized in Wade
because it imposed no governmental restriction on access to abortions.
The Hyde Amendment, like the Connecticut welfare regulation at issue in
Maher, places no governmental obstacle in the path of a woman who chooses to
terminate her pregnancy, but rather, by means of unequal subsidization of
abortion and other medical services, encourages alternative activity deemed in
the public interest. The present case does differ factually from Maher insofar
as that case involved a failure to fund nontherapeutic abortions, whereas the
Hyde Amendment withholds funding of certain medically necessary abortions.
Accordingly, the appellees argue that because the Hyde Amendment affects a
significant interest not present or asserted in Maher - the interest of a woman
in protecting her health during pregnancy - and because that interest lies at
the core of the personal constitutional freedom recognized in Wade, the present
case is constitutionally different from Maher. It is the appellees' view that to
the extent that the Hyde Amendment withholds funding for certain medically
necessary abortions, it clearly impinges on the constitutional principle
recognized in Wade. [448 U.S. 297, 316]
It is evident that a woman's interest in protecting her health was an
important theme in Wade. In concluding that the freedom of a woman to decide
whether to terminate her pregnancy falls within the personal liberty protected
by the Due Process Clause, the Court in Wade emphasized the fact that the
woman's decision carries with it significant personal health implications - both
physical and psychological. 410 U.S., at 153. In fact, although the Court in
Wade recognized that the state interest in protecting potential life becomes
sufficiently compelling in the period after fetal viability to justify an
absolute criminal prohibition of nontherapeutic abortions, the Court held that
even after fetal viability a State may not prohibit abortions "necessary to
preserve the life or health of the mother." Id., at 164. Because even the
compelling interest of the State in protecting potential life after fetal
viability was held to be insufficient to outweigh a woman's decision to protect
her life or health, it could be argued that the freedom of a woman to decide
whether to terminate her pregnancy for health reasons does in fact lie at the
core of the constitutional liberty identified in Wade.
But, regardless of whether the freedom of a woman to choose to terminate her
pregnancy for health reasons lies at the core or the periphery of the due
process liberty recognized in Wade, it simply does not follow that a woman's
freedom of choice carries with it a constitutional entitlement to the financial
resources to avail herself of the full range of protected choices. The reason
why was explained in Maher: although government may not place obstacles in the
path of a woman's exercise of her freedom of choice, it need not remove those
not of its own creation. Indigency falls in the latter category. The financial
constraints that restrict an indigent woman's ability to enjoy the full range of
constitutionally protected freedom of choice are the product not of governmental
restrictions on access to abortions, but rather of her indigency. Although
Congress has opted to subsidize [448 U.S. 297,
317] medically necessary services generally, but not certain medically
necessary abortions, the fact remains that the Hyde Amendment leaves an indigent
woman with at least the same range of choice in deciding whether to obtain a
medically necessary abortion as she would have had if Congress had chosen to
subsidize no health care costs at all. We are thus not persuaded that the Hyde
Amendment impinges on the constitutionally protected freedom of choice
recognized in Wade.19
Although the liberty protected by the Due Process Clause affords protection
against unwarranted government interference with freedom of choice in the
context of certain personal [448 U.S. 297, 318]
decisions, it does not confer an entitlement to such funds as may be necessary
to realize all the advantages of that freedom. To hold otherwise would mark a
drastic change in our understanding of the Constitution. It cannot be that
because government may not prohibit the use of contraceptives, Griswold v.
Connecticut, 381 U.S. 479, or prevent parents from sending their child to a
private school, Pierce v. Society of Sisters, 268 U.S. 510, government,
therefore, has an affirmative constitutional obligation to ensure that all
persons have the financial resources to obtain contraceptives or send their
children to private schools. To translate the limitation on governmental power
implicit in the Due Process Clause into an affirmative funding obligation would
require Congress to subsidize the medically necessary abortion of an indigent
woman even if Congress had not enacted a Medicaid program to subsidize other
medically necessary services. Nothing in the Due Process Clause supports such an
extraordinary result.20 Whether freedom of choice that is constitutionally protected
warrants federal subsidization is a question for Congress to answer, not a
matter of constitutional entitlement. Accordingly, we conclude that the Hyde
Amendment does not impinge on the due process liberty recognized in Wade.21
The appellees also argue that the Hyde Amendment contravenes
rights secured by the Religion Clauses of the First
[448 U.S. 297, 319] Amendment. It is the appellees' view that the Hyde
Amendment violates the Establishment Clause because it incorporates into law the
doctrines of the Roman Catholic Church concerning the sinfulness of abortion and
the time at which life commences. Moreover, insofar as a woman's decision to
seek a medically necessary abortion may be a product of her religious beliefs
under certain Protestant and Jewish tenets, the appellees assert that the
funding limitations of the Hyde Amendment impinge on the freedom of religion
guaranteed by the Free Exercise Clause.
It is well settled that "a legislative enactment does not
contravene the Establishment Clause if it has a secular legislative purpose, if
its principal or primary effect neither advances nor inhibits religion, and if
it does not foster an excessive governmental entanglement with religion."
Committee for Public Education v. Regan, 444 U.S. 646, 653. Applying this
standard, the District Court properly concluded that the Hyde Amendment does not
run afoul of the Establishment Clause. Although neither a State nor the Federal
Government can constitutionally "pass laws which aid one religion, aid all
religions, or prefer one religion over another," Everson v. Board of Education,
330 U.S. 1, 15, it does not follow that a statute violates the Establishment
Clause because it "happens to coincide or harmonize with the tenets of some or
all religions." McGowan v. Maryland, 366 U.S. 420, 442. That the
Judaeo-Christian religions oppose stealing does not mean that a State or the
Federal Government may not, consistent with the Establishment Clause, enact laws
prohibiting larceny. Ibid. The Hyde Amendment, as the District Court noted, is
as much a reflection of "traditionalist" values towards abortion, as it is an
embodiment of the views of any particular religion. 491 F. Supp., at 741. See
also Roe v. Wade, 410 U.S., at 138-141. In sum, we are convinced that the fact
that the funding restrictions in the [448 U.S.
297, 320] Hyde Amendment may coincide with the religious tenets of the
Roman Catholic Church does not, without more, contravene the Establishment
We need not address the merits of the appellees' arguments
concerning the Free Exercise Clause, because the appellees lack standing to
raise a free exercise challenge to the Hyde Amendment. The named appellees fall
into three categories: (1) the indigent pregnant women who sued on behalf of
other women similarly situated, (2) the two officers of the Women's Division,
and (3) the Women's Division itself.22 The named appellees in the first category lack standing to
challenge the Hyde Amendment on free exercise grounds because none alleged, much
less proved, that she sought an abortion under compulsion of religious belief.23 See McGowan v. Maryland, supra, at 429.
Although the named appellees in the second category did provide a detailed
description of their religious beliefs, they failed to allege either that they
are or expect to be pregnant or that they are eligible to receive Medicaid.
These named appellees, therefore, lack the personal stake in the controversy
needed to confer standing to raise such a challenge to the Hyde Amendment. See
Warth v. Seldin, 422 U.S. 490, 498-499.
Finally, although the Women's Division alleged that its
[448 U.S. 297, 321] membership includes "pregnant Medicaid eligible women
who, as a matter of religious practice and in accordance with their
conscientious beliefs, would choose but are precluded or discouraged from
obtaining abortions reimbursed by Medicaid because of the Hyde Amendment," the
Women's Division does not satisfy the standing requirements for an organization
to assert the rights of its membership. One of those requirements is that
"neither the claim asserted nor the relief requested requires the participation
of individual members in the lawsuit." Hunt v. Washington Apple Advertising
Comm'n, 432 U.S. 333, 343. Since "it is necessary in a free exercise case for
one to show the coercive effect of the enactment as it operates against him in
the practice of his religion," Abington School Dist. v. Schempp, 374 U.S. 203,
223, the claim asserted here is one that ordinarily requires individual
participation.24 In the present case, the
Women's Division concedes that "the permissibility, advisability and/or
necessity of abortion according to circumstance is a matter about which there is
diversity of view within . . . our membership, and is a determination which must
be ultimately and absolutely entrusted to the conscience of the individual
before God." It is thus clear that the participation of individual members of
the Women's Division is essential to a proper understanding and resolution of
their free exercise claims. Accordingly, we conclude that the Women's Division,
along with the other named appellees, lack standing to challenge the Hyde
Amendment under the Free Exercise Clause.
It remains to be determined whether the Hyde Amendment
violates the equal protection component of the Fifth Amendment. This challenge
is premised on the fact that, although [448 U.S.
297, 322] federal reimbursement is available under Medicaid for medically
necessary services generally, the Hyde Amendment does not permit federal
reimbursement of all medically necessary abortions. The District Court held, and
the appellees argue here, that this selective subsidization violates the
constitutional guarantee of equal protection.
The guarantee of equal protection under the Fifth Amendment is not a source
of substantive rights or liberties,25
but rather a right to be free from invidious discrimination in statutory
classifications and other governmental activity. It is well settled that where a
statutory classification does not itself impinge on a right or liberty protected
by the Constitution, the validity of classification must be sustained unless
"the classification rests on grounds wholly irrelevant to the achievement of
[any legitimate governmental] objective." McGowan v. Maryland, 366 U.S., at 425.
This presumption of constitutional validity, however, disappears if a statutory
classification is predicated on criteria that are, in a constitutional sense,
"suspect," the principal example of which is a classification based on race, e.
g., Brown v. Board of Education, 347 U.S. 483.
For the reasons stated above, we have already concluded that
the Hyde Amendment violates no constitutionally protected substantive rights. We
now conclude as well that it is not predicated on a constitutionally suspect
classification. In reaching this conclusion, we again draw guidance from the
Court's decision in Maher v. Roe. As to whether the Connecticut
[448 U.S. 297, 323] welfare regulation providing funds for childbirth but
not for nontherapeutic abortions discriminated against a suspect class, the
Court in Maher observed:
"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 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." 432 U.S., at 470-471, citing San Antonio Independent
School Dist. v. Rodriguez, 411 U.S. 1, 29; Dandridge v. Williams, 397 U.S.
Thus, the Court in Maher found no basis for concluding that the Connecticut
regulation was predicated on a suspect classification.
It is our view that the present case is indistinguishable from Maher in this
respect. Here, as in Maher, the principal impact of the Hyde Amendment falls on
the indigent. But that fact does not itself render the funding restriction
constitutionally invalid, for this Court has held repeatedly that poverty,
standing alone, is not a suspect classification. See, e. g., James v. Valtierra,
402 U.S. 137. That Maher involved the refusal to fund nontherapeutic abortions,
whereas the present case involves the refusal to fund medically necessary
abortions, has no bearing on the factors that render a classification "suspect"
within the meaning of the constitutional guarantee of equal protection.26 [448 U.S. 297, 324]
The remaining question then is whether the Hyde Amendment is
rationally related to a legitimate governmental objective. It is the
Government's position that the Hyde Amendment bears a rational relationship to
its legitimate interest in protecting the potential life of the fetus. We agree.
In Wade, the Court recognized that the State has an "important and legitimate
interest in protecting the potentiality of human life." 410 U.S., at 162. That
interest was found to exist throughout a pregnancy, "grow[ing] in substantiality
as the woman approaches term." Id., at 162-163. See also Beal v. Doe, 432 U.S.,
at 445-446. Moreover, in Maher, the Court held that Connecticut's decision to
fund the costs associated with childbirth but not those associated with
nontherapeutic abortions was a rational means of advancing the legitimate state
interest in protecting potential life by [448
U.S. 297, 325] encouraging childbirth. 432 U.S., at 478-479. See also
Poelker v. Doe, 432 U.S. 519, 520-521.
It follows that the Hyde Amendment, by encouraging childbirth except in the
most urgent circumstances, is rationally related to the legitimate governmental
objective of protecting potential life. By subsidizing the medical expenses of
indigent women who carry their pregnancies to term while not subsidizing the
comparable expenses of women who undergo abortions (except those whose lives are
threatened),27 Congress has established incentives that make childbirth a
more attractive alternative than abortion for persons eligible for Medicaid.
These incentives bear a direct relationship to the legitimate congressional
interest in protecting potential life. Nor is it irrational that Congress has
authorized federal reimbursement for medically necessary services generally, but
not for certain medically necessary abortions.28
Abortion is inherently different from other medical procedures, because no other
procedure involves the purposeful termination of a potential life.
After conducting an extensive evidentiary hearing into issues surrounding the
public funding of abortions, the District Court concluded that "[t]he interests
of . . . the federal government . . . in the fetus and in preserving it are not
sufficient, weighed in the balance with the woman's threatened health, to
justify withdrawing medical assistance unless the
[448 U.S. 297, 326] woman consents . . . to carry the fetus to term." 491
F. Supp., at 737. In making an independent appraisal of the competing interests
involved here, the District Court went beyond the judicial function. Such
decisions are entrusted under the Constitution to Congress, not the courts. It
is the role of the courts only to ensure that congressional decisions comport
with the Constitution.
Where, as here, the Congress has neither invaded a substantive constitutional
right or freedom, nor enacted legislation that purposefully operates to the
detriment of a suspect class, the only requirement of equal protection is that
congressional action be rationally related to a legitimate governmental
interest. The Hyde Amendment satisfies that standard. It is not the mission of
this Court or any other to decide whether the balance of competing interests
reflected in the Hyde Amendment is wise social policy. If that were our mission,
not every Justice who has subscribed to the judgment of the Court today could
have done so. But we cannot, in the name of the Constitution, overturn duly
enacted statutes simply "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, quoted in Dandridge v. Williams, 397 U.S., at 484. Rather, "when
an issue involves policy choices as sensitive as those implicated [here] . . .,
the appropriate forum for their resolution in a democracy is the legislature."
Maher v. Roe, supra, at 479.
For the reasons stated in this opinion, we hold that a State
that participates in the Medicaid program is not obligated under Title XIX to
continue to fund those medically necessary abortions for which federal
reimbursement is unavailable under the Hyde Amendment. We further hold that the
funding restrictions of the Hyde Amendment violate neither the Fifth Amendment
nor the Establishment Clause of the First Amendment. It is also our view that
the appellees [448 U.S. 297, 327]
lack standing to raise a challenge to the Hyde Amendment under the Free Exercise
Clause of the First Amendment. Accordingly, the judgment of the District Court
is reversed, and the case is remanded to that court for further proceedings
consistent with this opinion.
It is so ordered.
[Footnote 1] The "categorically needy" include families
with dependent children eligible for public assistance under the Aid to Families
with Dependent Children program, 42 U.S.C. 601 et seq., and the aged, blind, and
disabled eligible for benefits under the Supplemental Security Income program,
42 U.S.C. 1381 et seq. See 42 U.S.C. 1396a (a) (10) (A). Title XIX also permits
a State to extend Medicaid benefits to other needy persons, termed "medically
needy." See 42 U.S.C. 1396a (a) (10) (C). If a State elects to include the
medically needy in its Medicaid plan, it has the option of providing somewhat
different coverage from that required for the categorically needy. See 42 U.S.C.
1396a (a) (13) (C).
[Footnote 2] The Department of Health, Education, and
Welfare was recently reorganized and divided into the Department of Health and
Human Services and the Department of Education. The original designation is
retained for purposes of this opinion.
[Footnote 3] The appropriations for HEW during October and
November 1977, the first two months of fiscal year 1978, were provided by joint
resolutions that continued in effect the version of the Hyde Amendment
applicable during fiscal year 1977. Pub. L. 95-130, 91 Stat. 1153; Pub. L.
95-165, 91 Stat. 1323.
[Footnote 4] In this opinion, the term "Hyde Amendment" is
used generically to refer to all three versions of the Hyde Amendment, except
where indicated otherwise.
[Footnote 5] Although the intervenor-defendants are
appellees in the Secretary's direct appeal to this Court, see this Court's Rule
10 (4), the term "appellees" is used in this opinion to refer only to the
parties who were the plaintiffs in the District Court.
[Footnote 6] The trial, which was conducted between August
1977 and September 1978, produced a record containing more than 400 documentary
and film exhibits and a transcript exceeding 5,000 pages.
[Footnote 7] McRae v. Califano, 491 F.
[Footnote 8] The District Court found no
Establishment Clause infirmity because, in its view, the Hyde Amendment has a
secular legislative purpose, its principal effect neither advances nor inhibits
religion, and it does not foster an excessive governmental entanglement with
[Footnote 9] The District Court also
apparently concluded that the Hyde Amendment operates to the disadvantage of a
"suspect class," namely, teenage women desiring medically necessary abortions.
See n. 26, infra.
[Footnote 10] Although the original
class included only those pregnant women in the first two trimesters of their
pregnancy, the recertified class included all pregnant women regardless of the
stage of their pregnancy.
[Footnote 11] The appellees argue that
their interpretation of Title XIX finds support in Beal v. Doe, 432 U.S. 438.
There the Court considered the question whether Title XIX permits a
participating State to exclude non-therapeutic abortions from its Medicaid plan.
Although concluding that Title XIX does not preclude a State's refusal "to fund
unnecessary - though perhaps desirable - medical services," the Court observed
that "serious statutory questions might be presented if a state Medicaid plan
excluded necessary medical treatment from its coverage." Id., at 444-445
(emphasis in original). The Court in Beal, however, did not address the possible
effect of the Hyde Amendment upon the operation of Title XIX.
[Footnote 12] In Preterm, Inc. v.
Dukakis, 591 F.2d 121, 132 (CA1 1979), the opinion of the court by Judge Coffin
noted: "The Medicaid program is one of federal and state cooperation in funding
medical assistance; a complete withdrawal of the federal prop in the system with
the intent to drop the total cost of providing the service upon the states, runs
directly counter to the basic structure of the program and could seriously
cripple a state's attempts to provide other necessary medical services embraced
by its plan." (Footnote omitted.)
[Footnote 13] When subsequent Congresses
have deviated from the original structure of Title XIX by obligating a
participating State to assume the full costs of a service as a prerequisite for
continued federal funding of other services, they have always expressed their
intent to do so in unambiguous terms. See Zbaraz v. Quern, 596 F.2d 196, 200, n.
12 (CA7 1979).
[Footnote 14] Since Title XIX itself
provides for variations in the required coverage of state Medicaid plans
depending on changes in the availability of federal reimbursement, we need not
inquire, as the District Court did, whether the Hyde Amendment is a substantive
amendment to Title XIX. The present case is thus different from TVA v. Hill, 437
U.S. 153, 189-193, where the issue was whether continued appropriations for the
Tellico Dam impliedly repealed the substantive requirements of the Endangered
Species Act prohibiting the continued construction of the Dam because it
threatened the natural habitat of an endangered species.
[Footnote 15] Our conclusion that the
Congress that enacted Title XIX did not intend a participating State to assume a
unilateral funding obligation for any health service in an approved Medicaid
plan is corroborated by the fact that subsequent Congresses simply assumed that
the withdrawal of federal funding under the Hyde Amendment for certain medically
necessary abortions would relieve a participating State of any obligation to
provide for such services in its Medicaid plan. See the cases cited in the text,
[Footnote 16] A participating State is
free, if it so chooses, to include in its Medicaid plan those medically
necessary abortions for which federal reimbursement is unavailable. See Beal v.
Doe, 432 U.S., at 447; Preterm, Inc. v. Dukakis, supra, at 134. We hold only
that a State need not include such abortions in its Medicaid plan.
[Footnote 17] The appellees also argue
that the Hyde Amendment is unconstitutionally vague insofar as physicians are
unable to understand or implement the exceptions in the Hyde Amendment under
which abortions are reimbursable. It is our conclusion, however, that the Hyde
Amendment is not void for vagueness because (1) the sanction provision in the
Medicaid Act contains a clear scienter requirement under which good-faith errors
are not penalized, see Colautti v. Franklin, 439 U.S. 379, 395, and, (2), in any
event, the exceptions in the Hyde Amendment "are set out in terms that the
ordinary person exercising ordinary common sense can [448 U.S. 297, 312] sufficiently understand and comply
with, without sacrifice to the public interest." Broadrick v. Oklahoma, 413 U.S.
[Footnote 18] The Court in Wade observed
that previous decisions of this Court had recognized that the liberty protected
by the Due Process Clause "has some extension to activities relating to
marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v.
Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405
U.S. [438,] 453-454; id., at 460, 463-465 (WHITE, J., concurring in result);
family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and
child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535
(1925); Meyer v. Nebraska, [262 U.S. 390, 399 (1923)]." 410 U.S., at 152-153.
[Footnote 19] The appellees argue that
the Hyde Amendment is unconstitutional because it "penalizes" the exercise of a
woman's choice to terminate a pregnancy by abortion. See Memorial Hospital v.
Maricopa County, 415 U.S. 250; Shapiro v. Thompson, 394 U.S. 618. This argument
falls short of the mark. In Maher, the Court found only a "semantic difference"
between the argument that Connecticut's refusal to subsidize nontherapeutic
abortions "unduly interfere[d]" with the exercise of the constitutional liberty
recognized in Wade and the argument that it "penalized" the exercise of that
liberty. 432 U.S., at 474, n. 8. And, regardless of how the claim was
characterized, the Maher Court rejected the argument that Connecticut's refusal
to subsidize protected conduct, without more, impinged on the constitutional
freedom of choice. This reasoning is equally applicable in the present case. A
substantial constitutional question would arise if Congress had attempted to
withhold all Medicaid benefits from an otherwise eligible candidate simply
because that candidate had exercised her constitutionally protected freedom to
terminate her pregnancy by abortion. This would be analogous to Sherbert v.
Verner, 374 U.S. 398, where this Court held that a State may not, consistent
with the First and Fourteenth Amendments, withhold all unemployment compensation
benefits from a claimant who would otherwise be eligible for such benefits but
for the fact that she is unwilling to work one day per week on her Sabbath. But
the Hyde Amendment, unlike the statute at issue in Sherbert, does not provide
for such a broad disqualification from receipt of public benefits. Rather, the
Hyde Amendment, like the Connecticut welfare provision at issue in Maher,
represents simply a refusal to subsidize certain protected conduct. A refusal to
fund protected activity, without more, cannot be equated with the imposition of
a "penalty" on that activity.
[Footnote 20] As this Court in Maher
observed: "The Constitution imposes no obligation on the [government] to pay the
pregnancy-related medical expenses of indigent women, or indeed to pay any of
the medical expenses of indigents." 432 U.S., at 469.
[Footnote 21] Since the constitutional
entitlement of a physician who administers medical care to an indigent woman is
no broader than that of his patient, see Whalen v. Roe, 429 U.S. 589, 604, and
n. 33, we also reject the appellees' claim that the funding restrictions of the
Hyde Amendment violate the due process rights of the physician who advises a
Medicaid recipient to obtain a medically necessary abortion.
[Footnote 22] The remaining named
appellees, including the individual physicians and the New York City Health and
Hospitals Corp., did not attack the Hyde Amendment on the basis of the Free
Exercise Clause of the First Amendment.
[Footnote 23] These named appellees sued
on behalf of the class of "women of all religious and nonreligious persuasions
and beliefs who have, in accordance with the teaching of their religion and/or
the dictates of their conscience determined that an abortion is necessary." But
since we conclude below that the named appellees have not established their own
standing to sue, "[t]hey cannot represent a class of whom they are not a part."
Bailey v. Patterson, 369 U.S. 31, 32-33. See also O'Shea v. Littleton, 414 U.S.
[Footnote 24] For example, in Board of
Education v. Allen, 392 U.S. 236, 249, the Court found no free exercise
violation since the plaintiffs had "not contended that the [statute in question]
in any way coerce[d] them as individuals in the practice of their religion."
[Footnote 25] An exception to this
statement is to be found in Reynolds v. Sims, 377 U.S. 533, and its progeny.
Although the Constitution of the United States does not confer the right to vote
in state elections, see Minor v. Happersett, 21 Wall. 162, 178, Reynolds held
that if a State adopts an electoral system, the Equal Protection Clause of the
Fourteenth Amendment confers upon a qualified voter a substantive right to
participate in the electoral process equally with other qualified voters. See,
e. g., Dunn v. Blumstein, 405 U.S. 330, 336.
[Footnote 26] Although the matter is not
free from doubt, the District Court seems to have concluded that teenage women
desiring medically necessary abortions constitute a "suspect class" for purposes
of triggering a heightened level of equal protection scrutiny. In this regard,
the District Court observed that the Hyde Amendment "clearly operate[s] to the
disadvantage [448 U.S. 297, 324] of one
suspect class, that is to the disadvantage of the statutory class of adolescents
at a high risk of pregnancy . . ., and particularly those seventeen and under."
491 F. Supp., at 738. The "statutory" class to which the District Court was
referring is derived from the Adolescent Health Services and Pregnancy
Prevention and Care Act, 42 U.S.C. 300a-21 et seq. (1976 ed., Supp. II). It was
apparently the view of the District Court that since statistics indicate that
women under 21 years of age are disproportionately represented among those for
whom an abortion is medically necessary, the Hyde Amendment invidiously
discriminates against teenage women. But the Hyde Amendment is facially neutral
as to age, restricting funding for abortions for women of all ages. The District
Court erred, therefore, in relying solely on the disparate impact of the Hyde
Amendment in concluding that it discriminated on the basis of age. The equal
protection component of the Fifth Amendment prohibits only purposeful
discrimination, Washington v. Davis, 426 U.S. 229, and when a facially neutral
federal statute is challenged on equal protection grounds, it is incumbent upon
the challenger to prove that Congress "selected or reaffirmed a particular
course of action at least in part `because of,' not merely `in spite of,' its
adverse effects upon an identifiable group." Personnel Administrator of Mass. v.
Feeney, 442 U.S. 256, 279. There is no evidence to support such a finding of
intent in the present case.
[Footnote 27] We address here the
constitutionality of the most restrictive version of the Hyde Amendment, namely,
that applicable in fiscal year 1976 under which federal funds were unavailable
for abortions "except where the life of the mother would be endangered if the
fetus were carried to term." Three versions of the Hyde Amendment are at issue
in this case. If the most restrictive version is constitutionally valid, so too
are the others.
[Footnote 28] In fact, abortion is not
the only "medically necessary" service for which federal funds under Medicaid
are sometimes unavailable to otherwise eligible claimants. See 42 U.S.C. 1396d
(a) (17) (B) (inpatient hospital care of patients between 21 and 65 in
institutions for tuberculosis or mental disease not covered by Title XIX).
MR. JUSTICE WHITE, concurring.
I join the Court's opinion and judgment with these additional remarks.
Roe v. Wade, 410 U.S. 113 (1973), held that prior to viability of the fetus,
the governmental interest in potential life was insufficient to justify
overriding the due process right of a pregnant woman to terminate her pregnancy
by abortion. In the last trimester, however, the State's interest in fetal life
was deemed sufficiently strong to warrant a ban on abortions, but only if
continuing the pregnancy did not threaten the life or health of the mother. In
the latter event, the State was required to respect the choice of the mother to
terminate the pregnancy and protect her health.
Drawing upon Roe v. Wade and the cases that followed it, MR. JUSTICE STEVENS'
dissent extrapolates the general proposition that the governmental interest in
potential life may in no event be pursued at the expense of the mother's health.
It then notes that under the Hyde Amendment, Medicaid refuses to fund abortions
where carrying to term threatens maternal health but finances other medically
indicated procedures, including childbirth. The dissent submits that the Hyde
Amendment therefore fails the first requirement imposed by the Fifth Amendment
and recognized by the Court's opinion today - that the challenged official
action must serve a legitimate governmental goal, ante, at 324.
The argument has a certain internal logic, but it is not legally sound. The
constitutional right recognized in Roe v. Wade was the right to choose to
undergo an abortion without coercive interference by the government. As the
Court [448 U.S. 297, 328] points out, Roe v. Wade did not
purport to adjudicate a right to have abortions funded by the government, but
only to be free from unreasonable official interference with private choice. At
an appropriate stage in a pregnancy, for example, abortions could be prohibited
to implement the governmental interest in potential life, but in no case to the
damage of the health of the mother, whose choice to suffer an abortion rather
than risk her health the government was forced to respect.
Roe v. Wade thus dealt with the circumstances in which the governmental
interest in potential life would justify official interference with the abortion
choices of pregnant women. There is no such calculus involved here. The
Government does not seek to interfere with or to impose any coercive restraint
on the choice of any woman to have an abortion. The woman's choice remains
unfettered, the Government is not attempting to use its interest in life to
justify a coercive restraint, and hence in disbursing its Medicaid funds it is
free to implement rationally what Roe v. Wade recognized to be its legitimate
interest in a potential life by covering the medical costs of childbirth but
denying funds for abortions. Neither Roe v. Wade nor any of the cases decided in
its wake invalidates this legislative preference. We decided as much in Maher v.
Roe, 432 U.S. 464 (1977), when we rejected the claims that refusing funds for
nontherapeutic abortions while defraying the medical costs of childbirth,
although not an outright prohibition, nevertheless infringed the fundamental
right to choose to terminate a pregnancy by abortion and also violated the equal
protection component of the Fifth Amendment. I would not abandon Maher and
extend Roe v. Wade to forbid the legislative policy expressed in the Hyde
Nor can Maher be successfully distinguished on the ground that it involved
only nontherapeutic abortions that the Government was free to place outside the
ambit of its Medicaid program. That is not the ground on which Maher proceeded. [448 U.S. 297, 329] Maher held that the government need
not fund elective abortions because withholding funds rationally furthered the
State's legitimate interest in normal childbirth. We sustained this policy even
though under Roe v. Wade, the government's interest in fetal life is an
inadequate justification for coercive interference with the pregnant woman's
right to choose an abortion, whether or not such a procedure is medically
indicated. We have already held, therefore, that the interest balancing involved
in Roe v. Wade is not controlling in resolving the present constitutional issue.
Accordingly, I am satisfied that the straightforward analysis followed in MR.
JUSTICE STEWART'S opinion for the Court is sound.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR. JUSTICE BLACKMUN
I agree entirely with my Brother STEVENS that the State's interest in
protecting the potential life of the fetus cannot justify the exclusion of
financially and medically needy women from the benefits to which they would
otherwise be entitled solely because the treatment that a doctor has concluded
is medically necessary involves an abortion. See post, at 351-352. I write
separately to express my continuing disagreement1 with the Court's mischaracterization of the nature of the
fundamental right recognized in Roe v. Wade, 410 U.S. 113 (1973), and its
misconception of the manner in which that right is infringed by federal and
state legislation withdrawing all funding for medically necessary abortions.
Roe v. Wade held that the constitutional right to personal privacy
encompasses a woman's decision whether or not to
[448 U.S. 297, 330]
terminate her pregnancy. Roe and its progeny2 established that the pregnant woman has a right to be free from
state interference with her choice to have an abortion - a right which, at least
prior to the end of the first trimester, absolutely prohibits any governmental
regulation of that highly personal decision.3
The proposition for which these cases stand thus is not that the State is under
an affirmative obligation to ensure access to abortions for all who may desire
them; it is that the State must refrain from wielding its enormous power and
influence in a manner that might burden the pregnant woman's freedom to choose
whether to have an abortion. The Hyde Amendment's denial of public funds for
medically necessary abortions plainly intrudes upon this constitutionally
protected decision, for both by design and in effect it serves to coerce
indigent pregnant women to bear children that they would otherwise elect not to
have.4 [448 U.S. 297, 331]
When viewed in the context of the Medicaid program to which it is appended,
it is obvious that the Hyde Amendment is nothing less than an attempt by
Congress to circumvent the dictates of the Constitution and achieve indirectly
what Roe v. Wade said it could not do directly.5
Under Title XIX of the Social Security Act, the Federal Government reimburses
participating States for virtually all medically necessary services it provides
to the categorically needy. The sole limitation of any significance is the Hyde
Amendment's prohibition against the use of any federal funds to pay for the
[448 U.S. 297, 332]
costs of abortions (except where the life of the mother would be endangered if
the fetus were carried to term). As my Brother STEVENS persuasively
demonstrates, exclusion of medically necessary abortions from Medicaid coverage
cannot be justified as a cost-saving device. Rather, the Hyde Amendment is a
transparent attempt by the Legislative Branch to impose the political majority's
judgment of the morally acceptable and socially desirable preference on a
sensitive and intimate decision that the Constitution entrusts to the
individual. Worse yet, the Hyde Amendment does not foist that majoritarian
viewpoint with equal measure upon everyone in our Nation, rich and poor alike;
rather, it imposes that viewpoint only upon that segment of our society which,
because of its position of political powerlessness, is least able to defend its
privacy rights from the encroachments of state-mandated morality. The instant
legislation thus calls for more exacting judicial review than in most other
cases. "When elected leaders cower before public pressure, this Court, more than
ever, must not shirk its duty to enforce the Constitution for the benefit of the
poor and powerless." Beal v. Doe, 432 U.S. 438, 462 (1977) (MARSHALL, J.,
dissenting). Though it may not be this Court's mission "to decide whether the
balance of competing interests reflected in the Hyde Amendment is wise social
policy," ante, at 326, it most assuredly is our responsibility to vindicate the
pregnant woman's constitutional right to decide whether to bear children free
from governmental intrusion.
Moreover, it is clear that the Hyde Amendment not only was designed to
inhibit, but does in fact inhibit the woman's freedom to choose abortion over
childbirth. "Pregnancy is unquestionably a condition requiring medical services.
. . . Treatment for the condition may involve medical procedures for its
termination, or medical procedures to bring the pregnancy to term, resulting in
a live birth. `[A]bortion and childbirth, when stripped of the sensitive moral
arguments surrounding the abortion controversy, are simply two alternative
[448 U.S. 297, 333]
medical methods of dealing with pregnancy. . . .'" Beal v. Doe, supra, at 449
(BRENNAN, J., dissenting) (quoting Roe v. Norton, 408 F. Supp. 660, 663, n. 3
(Conn. 1975)). In every pregnancy, one of these two courses of treatment is
medically necessary, and the poverty-stricken woman depends on the Medicaid Act
to pay for the expenses associated with that procedure. But under the Hyde
Amendment, the Government will fund only those procedures incidental to
childbirth. By thus injecting coercive financial incentives favoring childbirth
into a decision that is constitutionally guaranteed to be free from governmental
intrusion, the Hyde Amendment deprives the indigent woman of her freedom to
choose abortion over maternity, thereby impinging on the due process liberty
right recognized in Roe v. Wade.
The Court's contrary conclusion is premised on its belief that "[t]he
financial constraints that restrict an indigent woman's ability to enjoy the
full range of constitutionally protected freedom of choice are the product not
of governmental restrictions on access to abortions, but rather of her
indigency." Ante, at 316. Accurate as this statement may be, it reveals only
half the picture. For what the Court fails to appreciate is that it is not
simply the woman's indigency that interferes with her freedom of choice, but the
combination of her own poverty and the Government's unequal subsidization of
abortion and childbirth.
A poor woman in the early stages of pregnancy confronts two alternatives: she
may elect either to carry the fetus to term or to have an abortion. In the
abstract, of course, this choice is hers alone, and the Court rightly observes
that the Hyde Amendment "places no governmental obstacle in the path of a woman
who chooses to terminate her pregnancy." Ante, at 315. But the reality of the
situation is that the Hyde Amendment has effectively removed this choice from
the indigent woman's hands. By funding all of the expenses associated with
childbirth and none of the expenses incurred in terminating pregnancy, the
Government literally makes an [448 U.S. 297, 334]
offer that the indigent woman cannot afford to refuse. It matters not that in
this instance the Government has used the carrot rather than the stick. What is
critical is the realization that as a practical matter, many poverty-stricken
woman will choose to carry their pregnancy to term simply because the Government
provides funds for the associated medical services, even though these same women
would have chosen to have an abortion if the Government had also paid for that
option, or indeed if the Government had stayed out of the picture altogether and
had defrayed the costs of neither procedure.
The fundamental flaw in the Court's due process analysis, then, is its
failure to acknowledge that the discriminatory distribution of the benefits of
governmental largesse can discourage the exercise of fundamental liberties just
as effectively as can an outright denial of those rights through criminal and
regulatory sanctions. Implicit in the Court's reasoning is the notion that as
long as the Government is not obligated to provide its citizens with certain
benefits or privileges, it may condition the grant of such benefits on the
recipient's relinquishment of his constitutional rights.
It would belabor the obvious to expound at any great length on the
illegitimacy of a state policy that interferes with the exercise of fundamental
rights through the selective bestowal of governmental favors. It suffices to
note that we have heretofore never hesitated to invalidate any scheme of
granting or withholding financial benefits that incidentally or intentionally
burdens one manner of exercising a constitutionally protected choice. To take
but one example of many, Sherbert v. Verner, 374 U.S. 398 (1963), involved a
South Carolina unemployment insurance statute that required recipients to accept
suitable employment when offered, even if the grounds for refusal stemmed from
religious convictions. Even though the recipients possessed no entitlement to
compensation, the Court held that the State could not cancel the [448 U.S. 297, 335] benefits of a Seventh-Day Adventist
who had refused a job requiring her to work on Saturdays. The Court's
explanation is particularly instructive for the present case:
"Here not only is it apparent that appellant's declared ineligibility for
benefits derives solely from the practice of her religion, but the pressure
upon her to forego that practice is unmistakable. The ruling forces her to
choose between following the precepts of her religion and forfeiting
benefits, on the one hand, and abandoning one of the precepts of her
religion in order to accept work, on the other hand. Governmental imposition
of such a choice puts the same kind of burden upon the free exercise of
religion as would a fine imposed against appellant for her Saturday worship.
"Nor may the South Carolina court's construction of the statute be saved
from constitutional infirmity on the ground that unemployment compensation
benefits are not appellant's `right' but merely a `privilege.' It is too
late in the day to doubt that the liberties of religion and expression may
be infringed by the denial of or placing of conditions upon a benefit or
privilege. . . . [T]o condition the availability of benefits upon this
appellant's willingness to violate a cardinal principle of her religious
faith effectively penalizes the free exercise of her constitutional
liberties." Id., at 404-406.
See also Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583 (1926);
Speiser v. Randall, 357 U.S. 513 (1958); Elfbrandt v. Russell, 384 U.S. 11
(1966); Goldberg v. Kelly, 397 U.S. 254 (1970); U.S. Dept. of Agriculture v.
Moreno, 413 U.S. 528 (1973); Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546 (1975). Cf. Shapiro v. Thompson, 394 U.S. 618 (1969); Memorial Hospital v.
Maricopa County, 415 U.S. 250 (1974).
The Medicaid program cannot be distinguished from these other statutory
schemes that unconstitutionally burdened [448
U.S. 297, 336]
fundamental rights.6 Here, as in Sherbert,
the government withholds financial benefits in a manner that discourages the
exercise of a due process liberty: The indigent woman who chooses to assert her
constitutional right to have an abortion can do so only on pain of sacrificing
health-care benefits to which she would otherwise be entitled. Over 50 years
ago, Mr. Justice Sutherland, writing for the Court in Frost & Frost Trucking Co.
v. Railroad Comm'n, supra, at 593-594, made the following observation, which is
as true now as it was then:
"It would be a palpable incongruity to strike down an act of state
legislation which, by words of express divestment, seeks to strip the
citizen of rights guaranteed by the federal Constitution, but to uphold an
act by [448 U.S. 297, 337] which the
same result is accomplished under the guise of a surrender of a right in
exchange for a valuable privilege which the state threatens otherwise to
withhold. It is not necessary to challenge the proposition that, as a
general rule, the state, having power to deny a privilege altogether, may
grant it upon such conditions as it sees fit to impose. But the power of the
state in that respect is not unlimited; and one of the limitations is that
it may not impose conditions which require the relinquishment of
constitutional rights. If the state may compel the surrender of one
constitutional right as a condition of its favor, it may, in like manner,
compel a surrender of all. It is inconceivable that guaranties embedded in
the Constitution of the United States may thus be manipulated out of
I respectfully dissent.
[Footnote *] [This opinion applies also to No. 79-4,
Williams et al. v. Zbaraz et al., No. 79-5, Miller, Acting Director, Illinois
Department of Public Aid, et al. v. Zbaraz et al., and No. 79-491, United States
v. Zbaraz et al., post, p. 358.]
[Footnote 1] See Maher v. Roe, 432 U.S.
464, 482-490 (1977) (BRENNAN, J., dissenting).
[Footnote 2] E. g., Doe v. Bolton, 410
U.S. 179 (1973); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52
(1976); Singleton v. Wulff, 428 U.S. 106 (1976); Bellotti v. Baird, 443 U.S. 622
(1979); cf. Carey v. Population Services International, 431 U.S. 678 (1977).
[Footnote 3] After the first trimester,
the State, in promoting its interest in the mother's health, may regulate the
abortion procedure in ways that are reasonably related to that end. And even
after the point of viability is reached, state regulation in furtherance of its
interest in the potentiality of human life may not go so far as to proscribe
abortions that are necessary to preserve the life or health of the mother. See
Roe v. Wade, 410 U.S. 113, 164-165 (1973).
[Footnote 4] My focus throughout this
opinion is upon the coercive impact of the congressional decision to fund one
outcome of pregnancy - childbirth - while not funding the other - abortion.
Because I believe this alone renders the Hyde Amendment unconstitutional, I do
not dwell upon the other disparities that the Amendment produces in the
treatment of rich and poor, pregnant and nonpregnant. I concur completely,
however, in my Brother STEVENS' discussion of those disparities. Specifically, I
agree that the congressional decision to fund all medically necessary procedures
except for those that require an abortion is entirely irrational either as a
means of allocating health-care resources or otherwise serving legitimate social
welfare goals. And that irrationality in turn exposes the Amendment [448 U.S. 297, 331] for what it really is - a deliberate
effort to discourage the exercise of a constitutionally protected right. It is
important to put this congressional decision in human terms. Nonpregnant women
may be reimbursed for all medically necessary treatments. Pregnant women with
analogous ailments, however, will be reimbursed only if the treatment involved
does not happen to include an abortion. Since the refusal to fund will in some
significant number of cases force the patient to forgo medical assistance, the
result is to refuse treatment for some genuine maladies not because they need
not be treated, cannot be treated, or are too expensive to treat, and not
because they relate to a deliberate choice to abort a pregnancy, but merely
because treating them would as a practical matter require termination of that
pregnancy. Even were one of the view that legislative hostility to abortions
could justify a decision to fund obstetrics and child delivery services while
refusing to fund nontherapeutic abortions, the present statutory scheme could
not be saved. For here, that hostility has gone a good deal farther. Its
consequence is to leave indigent sick women without treatment simply because of
the medical fortuity that their illness cannot be treated unless their pregnancy
is terminated. Antipathy to abortion, in short, has been permitted not only to
ride roughshod over a woman's constitutional right to terminate her pregnancy in
the fashion she chooses, but also to distort our Nation's health-care programs.
As a means of delivering health services, then, the Hyde Amendment is completely
irrational. As a means of preventing abortions, it is concededly rational -
brutally so. But this latter goal is constitutionally forbidden.
[Footnote 5] Cf. Singleton v. Wulff,
supra, at 118-119, n. 7: "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."
[Footnote 6] The Court rather summarily
rejects the argument that the Hyde Amendment unconstitutionally penalizes the
woman's exercise of her right to choose an abortion with the comment that "[a]
refusal to fund protected activity, without more, cannot be equated with the
imposition of a `penalty' on that activity." Ante, at 317, n. 19. To begin with,
the Court overlooks the fact that there is "more" than a simple refusal to fund
a protected activity in this case; instead, there is a program that selectively
funds but one of two choices of a constitutionally protected decision, thereby
penalizing the election of the disfavored option. Moreover, it is no answer to
assert that no "penalty" is being imposed because the State is only refusing to
pay for the specific costs of the protected activity rather than withholding
other Medicaid benefits to which the recipient would be entitled or taking some
other action more readily characterized as "punitive." Surely the Government
could not provide free transportation to the polling booths only for those
citizens who vote for Democratic candidates, even though the failure to provide
the same benefit to Republicans "represents simply a refusal to subsidize
certain protected conduct," ibid., and does not involve the denial of any other
governmental benefits. Whether the State withholds only the special costs of a
disfavored option or penalizes the individual more broadly for the manner in
which she exercises her choice, it cannot interfere with a constitutionally
protected decision through the coercive use of governmental largesse.
MR. JUSTICE MARSHALL, dissenting.*
Three years ago, in Maher v. Roe, 432 U.S. 464 (1977), the Court upheld a
state program that excluded nontherapeutic abortions from a welfare program that
generally subsidized the medical expenses incidental to pregnancy and
childbirth. At that time, I expressed my fear "that the Court's decisions will
be an invitation to public officials, already under extraordinary pressure from
well-financed and carefully orchestrated lobbying campaigns, to approve more
such restrictions" on governmental funding for abortion. Id., at 462 (dissenting
both in Maher v. Roe, supra, and in Beal v. Doe, 432 U.S. 438 (1977), and
Poelker v. Doe, 432 U.S. 519 (1977)). [448 U.S.
That fear has proved justified. Under the Hyde Amendment, federal funding is
denied for abortions that are medically necessary and that are necessary to
avert severe and permanent damage to the health of the mother. The Court's
opinion studiously avoids recognizing the undeniable fact that for women
eligible for Medicaid - poor women - denial of a Medicaid-funded abortion is
equivalent to denial of legal abortion altogether. By definition, these women do
not have the money to pay for an abortion themselves. If abortion is medically
necessary and a funded abortion is unavailable, they must resort to back-alley
butchers, attempt to induce an abortion themselves by crude and dangerous
methods, or suffer the serious medical consequences of attempting to carry the
fetus to term. Because legal abortion is not a realistic option for such women,
the predictable result of the Hyde Amendment will be a significant increase in
the number of poor women who will die or suffer significant health damage
because of an inability to procure necessary medical services.
The legislation before us is the product of an effort to deny to the poor the
constitutional right recognized in Roe v. Wade, 410 U.S. 113 (1973), even though
the cost may be serious and long-lasting health damage. As my Brother STEVENS
has demonstrated, see post, p. 349 (dissenting opinion), the premise underlying
the Hyde Amendment was repudiated in Roe v. Wade, where the Court made clear
that the state interest in protecting fetal life cannot justify jeopardizing the
life or health of the mother. The denial of Medicaid benefits to individuals who
meet all the statutory criteria for eligibility, solely because the treatment
that is medically necessary involves the exercise of the fundamental right to
chose abortion, is a form of discrimination repugnant to the equal protection of
the laws guaranteed by the Constitution. The Court's decision today marks a
retreat from Roe v. Wade and represents a cruel blow to the most powerless
members of our society. I dissent. [448 U.S. 297, 339]
In its present form, the Hyde Amendment restricts federal
funding for abortion to cases in which "the life of the mother would be
endangered if the fetus were carried to term" and "for such medical procedures
necessary for the victims of rape or incest when such rape or incest has been
reported promptly to a law enforcement agency or public health service." See
ante, at 302. Federal funding is thus unavailable even when severe and
long-lasting health damage to the mother is a virtual certainty. Nor are federal
funds available when severe health damage, or even death, will result to the
fetus if it is carried to term.
The record developed below reveals that the standards set forth in the Hyde
Amendment exclude the majority of cases in which the medical profession would
recommend abortion as medically necessary. Indeed, in States that have adopted a
standard more restrictive than the "medically necessary" test of the Medicaid
Act, the number of funded abortions has decreased by over 98%. App. 289.
The impact of the Hyde Amendment on indigent women falls into four major
categories. First, the Hyde Amendment prohibits federal funding for abortions
that are necessary in order to protect the health and sometimes the life of the
mother. Numerous conditions - such as cancer, rheumatic fever, diabetes,
malnutrition, phlebitis, sickle cell anemia, and heart disease - substantially
increase the risks associated with pregnancy or are themselves aggravated by
pregnancy. Such conditions may make an abortion medically necessary in the
judgment of a physician, but cannot be funded under the Hyde Amendment. Further,
the health risks of undergoing an abortion increase dramatically as pregnancy
becomes more advanced. By the time a pregnancy has progressed to the point where
a physician is able to certify that it endangers the life of the mother, it is
in many cases too late to prevent her death because abortion is no
[448 U.S. 297, 340] longer safe. There are also instances in which a
woman's life will not be immediately threatened by carrying the pregnancy to
term, but aggravation of another medical condition will significantly shorten
her life expectancy. These cases as well are not fundable under the Hyde
Second, federal funding is denied in cases in which severe mental
disturbances will be created by unwanted pregnancies. The result of such
psychological disturbances may be suicide, attempts at self-abortion, or child
abuse. The Hyde Amendment makes no provision for funding in such cases.
Third, the Hyde Amendment denies funding for the majority of women whose
pregnancies have been caused by rape or incest. The prerequisite of a report
within 60 days serves to exclude those who are afraid of recounting what has
happened or are in fear of unsympathetic treatment by the authorities. Such a
requirement is, of course, especially burdensome for the indigent, who may be
least likely to be aware that a rapid report to the authorities is indispensable
in order for them to be able to obtain an abortion.
Finally, federal funding is unavailable in cases in which it is known that
the fetus itself will be unable to survive. In a number of situations it is
possible to determine in advance that the fetus will suffer an early death if
carried to term. The Hyde Amendment, purportedly designed to safeguard "the
legitimate governmental objective of protecting potential life," ante, at 325,
excludes federal funding in such cases.
An optimistic estimate indicates that as many as 100 excess deaths may occur
each year as a result of the Hyde Amendment.1
The record contains no estimate of the health damage that may occur to poor
women, but it shows that it will be considerable.2
[448 U.S. 297, 341]
The Court resolves the equal protection issue in this case
through a relentlessly formalistic catechism. Adhering to its "two-tiered"
approach to equal protection, the Court first decides that so-called strict
scrutiny is not required because the Hyde Amendment does not violate the Due
Process Clause and is not predicated on a constitutionally suspect
classification. Therefore, "the validity of classification must be sustained
unless `the classification rests on grounds wholly irrelevant to the achievement
of [any legitimate governmental] objective.'" Ante, at 322 (bracketed material
in original), quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961). Observing
that previous cases have recognized "the legitimate governmental objective of
protecting potential life," ante, at 325, the Court concludes that the Hyde
Amendment "establishe[s] incentives that make childbirth a more attractive
alternative than abortion for persons eligible for Medicaid," ibid., and is
therefore rationally related to that governmental interest.
I continue to believe that the rigid "two-tiered" approach is inappropriate
and that the Constitution requires a more exacting standard of review than mere
rationality in cases such as this one. Further, in my judgment the Hyde
Amendment cannot pass constitutional muster even under the rational-basis
standard of review.
This case is perhaps the most dramatic illustration to date of
the deficiencies in the Court's obsolete "two-tiered" approach to the Equal
Protection Clause. See San Antonio Independent School Dist. v. Rodriguez, 411
U.S. 1, 98-110 (1973) (MARSHALL, J., dissenting); Massachusetts Bd. of
Retirement v. Murgia, 427 U.S. 307, 318-321 (1976) (MARSHALL, J., dissenting);
Maher v. Roe, 432 U.S., at 457-458 (MARSHALL, J., dissenting); Vance v. Bradley,
440 U.S. 93,
[448 U.S. 297, 342] 113-115 (1979)
(MARSHALL, J., dissenting).3 With all
deference, I am unable to understand how the Court can afford the same level of
scrutiny to the legislation involved here - whose cruel impact falls exclusively
on indigent pregnant women - that it has given to legislation distinguishing
opticians from ophthalmologists, or to other legislation that makes distinctions
between economic interests more than able to protect themselves in the political
process. See ante, at 326, citing Williamson v. Lee Optical Co., 348 U.S. 483
(1955). Heightened scrutiny of legislative classifications has always been
designed to protect groups "saddled with such disabilities, or subjected to such
a history of purposeful unequal treatment, or relegated to such a position of
political powerlessness as to command extraordinary protection from the
majoritarian political process." San Antonio Independent School Dist. v.
Rodriguez, supra, at 28.4 And while it is now clear that traditional "strict scrutiny"
is unavailable to protect the poor against classifications that disfavor them,
Dandridge v. Williams, 397 U.S. 471 (1970), I do not believe that legislation
that imposes a crushing burden on indigent women can be treated with the same
deference given to legislation distinguishing among business interests.
[448 U.S. 297, 343]
The Hyde Amendment, of course, distinguishes between medically
necessary abortions and other medically necessary expenses.5 As I explained in Maher v. Roe, supra, such classifications
must be assessed by weighing "`the importance of the governmental benefits
denied, the character of the class, and the asserted state interests,'" id., at
458, quoting Massachusetts Bd. of Retirement v. Murgia, supra, at 322. Under
that approach, the Hyde Amendment is clearly invalid.6
As in Maher, the governmental benefits at issue here are "of absolutely vital
importance in the lives of the recipients." Maher v. Roe, supra, at 458
(MARSHALL, J., dissenting). An indigent woman denied governmental funding for a
medically necessary abortion is confronted with two grotesque choices. First,
she may seek to obtain "an illegal abortion that poses a serious threat to her
health and even her life." 432 U.S., at 458. Alternatively, she may attempt to
bear the child, a course that may both significantly threaten her health and
eliminate any chance she might have had "to control the direction of her own
life," id., at 459.
The class burdened by the Hyde Amendment consists of indigent women, a
substantial proportion of whom are members of minority races. As I observed in
Maher, nonwhite women obtain abortions at nearly double the rate of whites,
ibid. In my view, the fact that the burden of the Hyde Amendment falls
exclusively on financially destitute women [448 U.S. 297, 344] suggests "a special
condition, which tends seriously to curtail the operation of those political
processes ordinarily to be relied upon to protect minorities, and which may call
for a correspondingly more searching judicial inquiry." United States v.
Carolene Products Co., 304 U.S. 144, 153, n. 4 (1938). For this reason, I
continue to believe that "a showing that state action has a devastating impact
on the lives of minority racial groups must be relevant" for purposes of equal
protection analysis. Jefferson v. Hackney, 406 U.S. 535, 575-576 (1972)
(MARSHALL, J., dissenting).
As I explained in Maher, the asserted state interest in protecting potential
life is insufficient to "outweigh the deprivation or serious discouragement of a
vital constitutional right of especial importance to poor and minority women."
432 U.S., at 461. In Maher, the Court found a permissible state interest in
encouraging normal childbirth. Id., at 477-479. The governmental interest in the
present case is substantially weaker than in Maher, for under the Hyde Amendment
funding is refused even in cases in which normal childbirth will not result: one
can scarcely speak of "normal childbirth" in cases where the fetus will die
shortly after birth, or in which the mother's life will be shortened or her
health otherwise gravely impaired by the birth. Nevertheless, the Hyde Amendment
denies funding even in such cases. In these circumstances, I am unable to see
how even a minimally rational legislature could conclude that the interest in
fetal life outweighs the brutal effect of the Hyde Amendment on indigent women.
Moreover, both the legislation in Maher and the Hyde Amendment were designed to
deprive poor and minority women of the constitutional right to choose abortion.
That purpose is not constitutionally permitted under Roe v. Wade.
Although I would abandon the strict-scrutiny/rational-basis
dichotomy in equal protection analysis, it is by no
[448 U.S. 297, 345]
means necessary to reject that traditional approach to conclude, as I do, that
the Hyde Amendment is a denial of equal protection. My Brother BRENNAN has
demonstrated that the Amendment is unconstitutional because it impermissibly
infringes upon the individual's constitutional right to decide whether to
terminate a pregnancy. See ante, at 332-334 (dissenting opinion). And as my
Brother STEVENS demonstrates, see post, at 350-352 (dissenting opinion), the
Government's interest in protecting fetal life is not a legitimate one when it
is in conflict with "the preservation of the life or health of the mother," Roe
v. Wade, 410 U.S., at 165, and when the Government's effort to make serious
health damage to the mother "a more attractive alternative than abortion," ante,
at 325, does not rationally promote the governmental interest in encouraging
The Court treats this case as though it were controlled by Maher. To the
contrary, this case is the mirror image of Maher. The result in Maher turned on
the fact that the legislation there under consideration discouraged only
non-therapeutic, or medically unnecessary, abortions. In the Court's view,
denial of Medicaid funding for nontherapeutic abortions was not a denial of
equal protection because Medicaid funds were available only for medically
necessary procedures. Thus the plaintiffs were seeking benefits which were not
available to others similarly situated. I continue to believe that Maher was
wrongly decided. But it is apparent that while the plaintiffs in Maher were
seeking a benefit not available to others similarly situated, appellees are
protesting their exclusion from a benefit that is available to all others
similarly situated. This, it need hardly be said, is a crucial difference for
equal protection purposes.
Under Title XIX and the Hyde Amendment, funding is available for essentially
all necessary medical treatment for the poor. Appellees have met the statutory
requirements for eligibility, but they are excluded because the treatment that
is medically necessary involves the exercise of a fundamental
[448 U.S. 297, 346]
right, the right to choose an abortion. In short, these appellees have been
deprived of a governmental benefit for which they are otherwise eligible, solely
because they have attempted to exercise a constitutional right. The interest
asserted by the Government, the protection of fetal life, has been declared
constitutionally subordinate to appellees' interest in preserving their lives
and health by obtaining medically necessary treatment. Roe v. Wade, supra. And
finally, the purpose of the legislation was to discourage the exercise of the
fundamental right. In such circumstances the Hyde Amendment must be invalidated
because it does not meet even the rational-basis standard of review.
The consequences of today's opinion - consequences to which
the Court seems oblivious - are not difficult to predict. Pregnant women denied
the funding necessary to procure abortions will be restricted to two
alternatives. First, they can carry the fetus to term - even though that route
may result in severe injury or death to the mother, the fetus, or both. If that
course appears intolerable, they can resort to self-induced abortions or attempt
to obtain illegal abortions - not because bearing a child would be inconvenient,
but because it is necessary in order to protect their health.7 The result will not be to protect what the
Court describes as "the legitimate governmental objective of protecting
potential life," ante, at 325, but to ensure the destruction of both fetal and
maternal life. "There is another world `out there,' the existence of which the
Court . . . either chooses to ignore or fears
[448 U.S. 297, 347] to recognize." Beal v. Doe, 432 U.S., at 463
(BLACKMUN, J., dissenting). In my view, it is only by blinding itself to that
other world that the Court can reach the result it announces today.
Ultimately, the result reached today may be traced to the Court's
unwillingness to apply the constraints of the Constitution to decisions
involving the expenditure of governmental funds. In today's decision, as in
Maher v. Roe, the Court suggests that a withholding of funding imposes no real
obstacle to a woman deciding whether to exercise her constitutionally protected
procreative choice, even though the Government is prepared to fund all other
medically necessary expenses, including the expenses of childbirth. The Court
perceives this result as simply a distinction between a "limitation on
governmental power" and "an affirmative funding obligation." Ante, at 318. For a
poor person attempting to exercise her "right" to freedom of choice, the
difference is imperceptible. As my Brother BRENNAN has shown, see ante, at
332-334 (dissenting opinion), the differential distribution of incentives -
which the Court concedes is present here, see ante, at 325 - can have precisely
the same effect as an outright prohibition. It is no more sufficient an answer
here than it was in Roe v. Wade to say that "`the appropriate forum'" for the
resolution of sensitive policy choices is the legislature. See ante, at 326,
quoting Maher v. Roe, at 479.
More than 35 years ago, Mr. Justice Jackson observed that the "task of
translating the majestic generalities of the Bill of Rights . . . into concrete
restraints on officials dealing with the problems of the twentieth century, is
one to disturb self-confidence." West Virginia State Bd. of Education v.
Barnette, 319 U.S. 624, 639 (1943). These constitutional principles, he observed
for the Court, "grew in soil which also produced a philosophy that the
individual['s] . . . liberty was attainable through mere absence of governmental
restraints." Ibid. Those principles must be "transplant[ed] . . . to a soil in
which the laissez-faire concept or principle of non-interference
[448 U.S. 297, 348]
has withered at least as to economic affairs, and social advancements are
increasingly sought through closer integration of society and through expanded
and strengthened governmental controls." Id., at 640.
In this case, the Federal Government has taken upon itself the burden of
financing practically all medically necessary expenditures. One category of
medically necessary expenditure has been singled out for exclusion, and the sole
basis for the exclusion is a premise repudiated for purposes of constitutional
law in Roe v. Wade. The consequence is a devastating impact on the lives and
health of poor women. I do not believe that a Constitution committed to the
equal protection of the laws can tolerate this result. I dissent.
[Footnote *] [This opinion applies also to No. 79-4,
Williams et al. v. Zbaraz et al., No. 79-5, Miller, Acting Director, Illinois
Department of Public Aid, et al. v. Zbaraz et al., and No. 79-491, United States
v. Zbaraz et al., post, p. 358.]
[Footnote 1] See App. 294-296.
[Footnote 2] For example, the number
of serious complications deriving from abortions was estimated to be about 100
times the number of deaths from abortions. See id., at 200.
[Footnote 3] A number of individual
Justices have expressed discomfort with the two-tiered approach, and I am
pleased to observe that its hold on the law may be waning. See Craig v. Boren,
429 U.S. 190, 210-211, and n.[*] (1976) (POWELL, J., concurring); id., at
211-212 (STEVENS, J., concurring); post, at 352, n. 4 (STEVENS, J., dissenting).
Further, the Court has adopted an "intermediate" level of scrutiny for a variety
of classifications. See Trimble v. Gordon, 430 U.S. 762 (1977) (illegitimacy);
Craig v. Boren, supra (sex discrimination); Foley v. Connelie, 435 U.S. 291
(1978) (alienage). Cf. University of California Regents v. Bakke, 438 U.S. 265,
324 (1978) (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.) (affirmative
[Footnote 4] For this reason the Court
has on occasion suggested that classifications discriminating against the poor
are subject to special scrutiny under the Fifth and Fourteenth Amendments. See
McDonald v. Board of Election, 394 U.S. 802, 807 (1969); Harper v. Virginia Bd.
of Elections, 383 U.S. 663, 668 (1966).
[Footnote 5] As my Brother STEVENS
suggests, see post, at 355, n. 8 (dissenting opinion), the denial of funding for
those few medically necessary services that are excluded from the Medicaid
program is based on a desire to conserve federal funds, not on a desire to
penalize those who suffer the excluded disabilities.
[Footnote 6] In practical effect, my
approach is not in this context dissimilar to that taken in Craig v. Boren,
supra, at 197, where the Court referred to an intermediate standard of review
requiring that classifications "must serve important governmental objectives and
must be substantially related to achievement of those objectives."
[Footnote 7] Of course, some poor
women will attempt to raise the funds necessary to obtain a lawful abortion. A
court recently found that those who were fortunate enough to do so had to resort
to "not paying rent or utility bills, pawning household goods, diverting food
and clothing money, or journeying to another state to obtain lower rates or
fraudulently use a relative's insurance policy. . . . [S]ome patients were
driven to theft." Women's Health Services, Inc. v. Maher, 482 F. Supp. 725, 731,
MR. JUSTICE BLACKMUN, dissenting.*
I join the dissent of MR. JUSTICE BRENNAN and agree wholeheartedly with his
and MR. JUSTICE STEVENS' respective observations and descriptions of what the
Court is doing in this latest round of "abortion cases." I need add only that I
find what I said in dissent in Beal v. Doe, 432 U.S. 438, 462 (1977), and its
two companion cases, Maher v. Roe, 432 U.S. 464 (1977), and Poelker v. Doe, 432
U.S. 519 (1977), continues for me to be equally pertinent and equally applicable
in these Hyde Amendment cases. There is "condescension" in the Court's holding
that "she may go elsewhere for her abortion"; this is "disingenuous and
alarming"; the Government "punitively impresses upon a needy minority its own
concepts of the socially desirable, the publicly acceptable, and the morally
sound"; the "financial argument, of course, is specious"; there truly is
"another world 'out there,' the existence of which the Court, I suspect, either
chooses to ignore [448 U.S. 297, 349] or fears to recognize"; the
"cancer of poverty will continue to grow"; and "the lot of the poorest among
us," once again, and still, is not to be bettered.
[Footnote *] [This opinion applies also to No. 79-4,
Williams et al. v. Zbaraz et al., No. 79-5, Miller, Acting Director, Illinois
Department of Public Aid, et al. v. Zbaraz et al., and No. 79-491, United States
v. Zbaraz et al., post, p. 358.]
MR. JUSTICE STEVENS, dissenting.*
"The federal sovereign, like the States, must govern impartially. The
concept of equal justice under law is served by the Fifth Amendment's
guarantee of due process, as well as by the Equal Protection Clause of the
Fourteenth Amendment." Hampton v. Mow Sun Wong, 426 U.S. 88, 100. When the
sovereign provides a special benefit or a special protection for a class of
persons, it must define the membership in the class by neutral criteria; it
may not make special exceptions for reasons that are constitutionally
These cases involve the pool of benefits that Congress created by enacting
Title XIX of the Social Security Act in 1965. Individuals who satisfy two
neutral statutory criteria - financial need and medical need - are entitled to
equal access to that pool. The question is whether certain persons who satisfy
those criteria may be denied access to benefits solely because they must
exercise the constitutional right to have an abortion in order to obtain the
medical care they need. Our prior cases plainly dictate the answer to that
A fundamentally different question was decided in Maher v. Roe, 432 U.S. 464.
Unlike these plaintiffs, the plaintiffs in Maher did not satisfy the neutral
criterion of medical need; they sought a subsidy for nontherapeutic abortions -
medical procedures which by definition they did not need. In rejecting that
claim, the Court held that their constitutional right to choose that procedure
did not impose a duty on [448 U.S. 297, 350] the State to subsidize the exercise
of that right. Nor did the fact that the State had undertaken to pay for the
necessary medical care associated with childbirth require the State also to pay
for abortions that were not necessary; for only necessary medical procedures
satisfied the neutral statutory criteria. Nontherapeutic abortions were simply
outside the ambit of the medical benefits program. Thus, in Maher, the
plaintiffs' desire to exercise a constitutional right gave rise to neither
special access nor special exclusion from the pool of benefits created by Title
These cases involve a special exclusion of women who, by definition, are
confronted with a choice between two serious harms: serious health damage to
themselves on the one hand and abortion on the other. The competing interests
are the interest in maternal health and the interest in protecting potential
human life. It is now part of our law that the pregnant woman's decision as to
which of these conflicting interests shall prevail is entitled to constitutional
In Roe v. Wade, 410 U.S. 113, and Doe v. Bolton, 410 U.S. 179, the Court
recognized that the States have a legitimate and protectible interest in
potential human life. 410 U.S., at 162. But the Court explicitly held that prior
to fetal viability that interest may not justify any governmental burden on the
woman's choice to have an abortion2 nor even any [448 U.S. 297, 351] regulation of abortion except in
furtherance of the State's interest in the woman's health. In effect, the Court
held that a woman's freedom to elect to have an abortion prior to viability has
absolute constitutional protection, subject only to valid health regulations.
Indeed, in Roe v. Wade the Court held that even after fetal viability, a State
may "regulate, and even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life or health of the
mother." Id., at 165 (emphasis added). We have a duty to respect that holding.
The Court simply shirks that duty in this case.
If a woman has a constitutional right to place a higher value on avoiding
either serious harm to her own health or perhaps an abnormal childbirth3 than on protecting potential life, the exercise of that right
cannot provide the basis for the denial of a benefit to which she would
otherwise be entitled. The Court's sterile equal protection analysis evades this
critical though simple point. The Court focuses exclusively on the "legitimate
interest in protecting the potential life of the fetus." Ante, at 324. It
concludes that since the Hyde Amendments further that interest, the exclusion
they create is rational and therefore constitutional. But it is misleading
[448 U.S. 297, 352] to speak of the Government's legitimate interest in
the fetus without reference to the context in which that interest was held to be
legitimate. For Roe v. Wade squarely held that the States may not protect that
interest when a conflict with the interest in a pregnant woman's health exists.
It is thus perfectly clear that neither the Federal Government nor the States
may exclude a woman from medical benefits to which she would otherwise be
entitled solely to further an interest in potential life when a physician, "in
appropriate medical judgment," certifies that an abortion is necessary "for the
preservation of the life or health of the mother." Roe v. Wade, supra, at 165.
The Court totally fails to explain why this reasoning is not dispositive here.4 [448 U.S. 297, 353]
It cannot be denied that the harm inflicted upon women in the excluded class
is grievous.5 As the Court's comparison of
the differing forms of the Hyde Amendment that have [448 U.S. 297, 354] been enacted since 1976 demonstrates,
the Court expressly approves the exclusion of benefits in "instances where
severe and long-lasting physical health damage to the mother" is the predictable
consequence of carrying the pregnancy to term. Indeed, as the Solicitor General
acknowledged with commendable candor, the logic of the Court's position would
justify a holding that it would be constitutional to deny funding to a medically
and financially needy person even if abortion were the only lifesaving medical
procedure available.6 Because a denial of benefits for medically necessary abortions
inevitably causes serious harm to the excluded women, it is tantamount to severe
punishment.7 In my judgment, that denial
cannot be justified unless government may, in effect, punish women who want
abortions. But as the Court unequivocally held in Roe v. Wade, this the
government may not do. [448 U.S. 297, 355]
Nor can it be argued that the exclusion of this type of medically necessary
treatment of the indigent can be justified on fiscal grounds. There are some
especially costly forms of treatment that may reasonably be excluded from the
program in order to preserve the assets in the pool and extend its benefits to
the maximum number of needy persons. Fiscal considerations may compel certain
difficult choices in order to improve the protection afforded to the entire
benefited class.8 But, ironically, the exclusion of medically necessary
abortions harms the entire class as well as its specific victims. For the
records in both McRae and Zbaraz demonstrate that the cost of an abortion is
only a small fraction of the costs associated with childbirth.9 Thus, the decision to tolerate harm to indigent [448 U.S. 297, 356] persons who need an abortion
in order to avoid "serious and long-lasting health damage" is one that is
financed by draining money out of the pool that is used to fund all other
necessary medical procedures. Unlike most invidious classifications, this
discrimination harms not only its direct victims but also the remainder of the
class of needy persons that the pool was designed to benefit.
In Maher the Court stated:
"The Constitution imposes no obligation on the States to pay the
pregnancy-related medical expenses of indigent women, or indeed to pay any
of the medical expenses of indigents. But when a State decides to alleviate
some of the hardships of poverty by providing medical care, the manner in
which it dispenses benefits is subject to constitutional limitations." 432
U.S., at 469-470 (footnote omitted).
Having decided to alleviate some of the hardships of poverty by providing
necessary medical care, the government must use neutral criteria in distributing
benefits. It may not deny benefits to a financially and medically needy person
simply because he is a Republican, a Catholic, or an Oriental - or because he
has spoken against a program the government has a legitimate interest in
furthering. In sum, it may not create exceptions for the sole purpose of
furthering a governmental interest that is constitutionally subordinate to the
individual interest that the entire program was designed to protect. The Hyde
Amendments not only exclude financially and medically needy persons from the
pool of benefits for a constitutionally insufficient reason; they also require
the expenditure of millions and millions of dollars in order to thwart the
exercise of a constitutional right, thereby effectively inflicting serious and
long-lasting harm on impoverished women who want and need abortions for valid
medical reasons. In my judgment, these Amendments constitute an unjustifiable,
[448 U.S. 297, 357] and indeed blatant, violation of the sovereign's duty
to govern impartially.10
I respectfully dissent.
[Footnote *] [This opinion applies also to
No. 79-4, Williams et al. v. Zbaraz et al., No. 79-5, Miller, Acting Director,
Illinois Department of Public Aid, et al. v. Zbaraz et al., and No. 79-491,
United States v. Zbaraz et al., post, p. 358.]
[Footnote 1] "In Roe v. Wade, 410 U.S.
113, the Court held that a woman's right to decide whether to abort a pregnancy
is entitled to constitutional protection. That decision . . . is now part of our
law. . . ." Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 101
(STEVENS, J., concurring in part and dissenting in part).
[Footnote 2] Roe v. Wade involved Texas
statutes making it a crime to "procure an abortion," except when attempted to
save the pregnant woman's life. 410 U.S., at 117-118. Doe v. Bolton involved the
somewhat less onerous Georgia statutes making abortion a crime in most
circumstances, the exceptions being abortions to save the pregnant woman from
life or permanent health endangerment, cases in which there was a very likely
irremediable birth defect in the child, and cases in which the pregnancy was [448 U.S. 297, 351] the result of rape. Those
exceptions were subject to burdensome prior medical approvals, which were held
to be unconstitutional. Subsequent cases have invalidated other burdens on the
pregnant woman's free choice to abort. See Planned Parenthood of Central
Missouri v. Danforth, supra (consent required of husband or, for an unmarried
woman under 18, of a parent); Bellotti v. Baird, 443 U.S. 622 (consent required
of either parent or superior court judge for an unmarried woman under 18).
[Footnote 3] The Court rests heavily on
the premise - recognized in both Roe and Maher - that the State's legitimate
interest in preserving potential life provides a sufficient justification for
funding medical services that are necessarily associated with normal childbirth
without also funding abortions that are not medically necessary. The Maher
opinion repeatedly referred to the policy of favoring "normal childbirth." See
432 U.S., at 477, 478, 479. But this case involves a refusal to fund abortions
which are medically necessary to avoid abnormal childbirth.
[Footnote 4] These cases thus illustrate
the flaw in the method of equal protection analysis by which one chooses among
alternative "levels of scrutiny" and then determines whether the extent to which
a particular legislative measure furthers a given governmental objective
transcends the predetermined threshold. See Craig v. Boren, 429 U.S. 190,
211-212 (STEVENS, J., concurring). That method may simply bypass the real issue.
The relevant question in these cases is whether the Court must attach greater
weight to the individual's interest in being included in the class than to the
governmental interest in keeping the individual out. Since Roe v. Wade squarely
held that the individual interest in the freedom to elect an abortion and the
state interest in protecting maternal health both outweigh the State's interest
in protecting potential life prior to viability, the Court's "equal protection
analysis" is doubly erroneous. In responding to my analysis of this case, MR.
JUSTICE WHITE has described the constitutional right recognized in Roe v. Wade
as "the right to choose to undergo an abortion without coercive interference by
the government" or a right "only to be free from unreasonable official
interference with private choice." Ante, at 327, 328. No such language is found
in the Roe opinion itself. Rather, that case squarely held that state
interference is unreasonable if it attaches a greater importance to the interest
in potential life than to the interest in protecting the mother's health. One
could with equal justification describe the right protected by the First
Amendment as the right to make speeches without coercive interference by the
government and then sustain a government subsidy for all medically needy persons
except those who publicly advocate a change of administration.
[Footnote 5] The record is replete with
examples of serious physical harm. See, e. g., Judge Dooling's opinion in McRae
v. Califano, 491 F. Supp. 630, 670: "Women, particularly young women, suffering
from diabetes are likely to experience high risks of health damage to themselves
and their fetuses; the woman may become blind through the worsening during
pregnancy of a diabetic retinopathy; in the case, particularly, of the juvenile
diabetic, Dr. Eliot testified there is evidence that a series of pregnancies
advances the diabetes faster; given an aggravated diabetic condition, other
risks increased through pregnancy are kidney problems, and vascular problems of
the extremities." See also the affidavit of Jane Doe in No. 79-1268: "3. I am 25
years old. I am married with four living children. Following the birth of my
third child in November of 1976, I developed a serious case of phlebitis from
which I have not completely recovered. Carrying another pregnancy to term would
greatly aggravate this condition and increase the risk of blood clots to the
lung. "4. On July 29, 1977, I went to the Fertility Control Clinic at St.
Paul-Ramsey Hospital, St. Paul, Minnesota to request an abortion. They informed
me that a new law prohibits any federal reimbursement for abortions except those
necessary to save the life of the mother and that they cannot afford to do this
operation free for me. "5. I cannot afford to pay for an abortion myself, and
without Medicaid reimbursement, I cannot obtain a safe, legal abortion.
According to the doctor, Dr. Jane E. Hodgson, without an abortion I might suffer
serious and permanent health problems." App. in No. 79-1268, pp. 109-110. And
see the case of the Jane Doe in Nos. 79-4, 79-5, and 79-491, as recounted in Dr.
Zbaraz' affidavit: "Jane Doe is 38 years old and has had nine previous
pregnancies. She has a history of varicose veins and thrombophlebitis (blood
clots) of the left leg. The varicose veins can be, and in her case were, caused
by multiple pregnancies: the weight of the uterus on her pelvic veins increased
the blood pressure in the veins of her lower extremities; those veins dilated
and her circulation was impaired, resulting in thrombophlebitis of her left leg.
The varicosities of her lower extremities became so severe that they required
partial surgical removal in 1973. "2. Given this medical history, Jane Doe's
varicose veins are almost [448 U.S. 297, 354]
certain to recur if she continues her pregnancy. Such a recurrence would require
a second operative procedure for their removal. Given her medical history, there
is also about a 30% risk that her thrombophlebitis will recur during the
pregnancy in the form of `deep vein' thrombophlebitis (the surface veins of her
left leg having previously been partially removed). This condition would impair
circulation and might require prolonged hospitalization with bed rest. "3.
Considering Jane Doe's medical history of varicose veins and thrombophlebitis,
particularly against the background of her age and multiple pregnancies, it is
my view that an abortion is medically necessary for her, though not necessary to
preserve her life." App. in Nos. 79-4, 79-5, and 79-491, p. 92.
[Footnote 6] "QUESTION: Mr. Solicitor
General, would you make the same rational basis argument if the Hyde amendment
did not contain the exception for endangering the life of the mother, if it was
her death rather than adverse impact on her health that was involved? "Mr.
McCREE: I think I would." Tr. of Oral Arg. in 79-1268, p. 10.
[Footnote 7] In this respect, these
cases are entirely different from Maher, in which the Court repeatedly noted
that the refusal to subsidize nontherapeutic abortions would merely result in
normal childbirth. Surely the government may properly presume that no harm will
ensue from normal childbirth.
[Footnote 8] This rationale may
satisfactorily explain the exclusions from the Medicaid program noted by the
Court. Ante, at 325, n. 28. In all events, it is safe to assume that those
exclusions would conserve the assets of the pool.
[Footnote 9] In the Zbaraz case, Judge
Grady found that the average cost to the State of Illinois of an abortion was
less than $150 as compared with the cost of a childbirth which exceeded $1,350.
App. to Juris. Statement in No. 79-491, p. 14a, n. 8. Indeed, based on an
estimated cost of providing support to children of indigent parents together
with their estimate of the number of medically necessary abortions that would be
funded but for the Hyde Amendment, appellees in the Zbaraz case contend that in
the State of Illinois alone the effect of the Hyde Amendment is to impose a cost
of about $20,000,000 per year on the public fisc. Brief for Appellees in Nos.
79-4, 79-5, and 79-491, p. 60, n. See also Judge Dooling's conclusion: "While
the debate [on the Hyde Amendment] in both years was on a rider to the
departmental appropriations bill, it was quickly established that the
restriction on abortion funding was not an economy measure; it was recognized
that if an abortion was not performed for a medicaid eligible woman, the
medicaid and other costs of childbearing and nurture would greatly exceed the
cost of abortion. Opponents of funding restriction were equally at pains,
however, to make clear that they did not favor funding abortion as a means of
reducing the Government's social welfare costs." 491 F. Supp., at 644.
[Footnote 10] My conclusion that the
Hyde Amendments violate the Federal Government's duty of impartiality applies
equally to the Illinois statute at issue in Zbaraz.
[448 U.S. 297, 358]
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