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
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"
Since September 1976, Congress has prohibited—either by an amendment to the annual appropriations bill for the Department of Health, Education, and Welfare
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"
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.
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
After a lengthy trial, which inquired into the medical reasons for abortions and the diverse religious views on the subject,
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.
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
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 service.
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
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.
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 Amendment.
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.
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.
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 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
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.
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
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
The appellees also argue that the Hyde Amendment contravenes rights secured by the Religion Clauses of the First
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
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.
Finally, although the Women's Division alleged that its
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
The guarantee of equal protection under the Fifth Amendment is not a source of substantive rights or liberties,
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
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.
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
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),
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
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
It is so ordered.
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
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 Amendment.
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.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR. JUSTICE BLACKMUN join, dissenting.
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 disagreement
Roe v. Wade held that the constitutional right to personal privacy encompasses a woman's decision whether or not to
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
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
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
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
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)).
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.
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
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.
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,
The Hyde Amendment, of course, distinguishes between medically necessary abortions and other medically necessary expenses.
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
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
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
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.
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
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.
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
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 insufficient.
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 question.
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
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 protection.
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 abortion
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 childbirth
In Maher the Court stated:
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,
I respectfully dissent.
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 U. S. A.
"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.)
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.
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.
"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."
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.
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.
"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 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.
"Mr. McCREE: I think I would." Tr. of Oral Arg. in 79-1268, p. 10.
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 fise. 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.