Supreme Court: States Need Not Pay for `Nontherapeutic' Abortions via Medicaid; PublicHospitals Can Deny ServiceSource: Family Planning Perspectives, Vol. 9, No. 4 (Jul. - Aug., 1977), pp. 177-179Published by: Guttmacher InstituteStable URL: http://www.jstor.org/stable/2134496 .

Accessed: 15/06/2014 21:25

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

Guttmacher Institute is collaborating with JSTOR to digitize, preserve and extend access to Family PlanningPerspectives.

http://www.jstor.org

This content downloaded from 62.122.79.90 on Sun, 15 Jun 2014 21:25:12 PMAll use subject to JSTOR Terms and Conditions

Covering the key meetings, conferences, journals and special reports of interest to and use for program workers and researchers in the family planning and population fields

Supreme Court: States Need Not Pay for 'Nontherapeutic' Abortions via Medicaid; Public Hospitals Can Deny Service The U.S. Supreme Court ruled on June 20 that neither the Medicaid law nor the U.S. Constitution requires states to pay Medicaid benefits for "nontherapeutic" abortions, even though states pay for childbirth and "medically necessary" abortions under the Medicaid program.1 In addition, the Court decided, publicly financed hospitals are not required to provide "nontherapeutic" early abor- tions, although they do provide other pregnancy-related services.2

Reversing the decisions of almost all lower federal courts, six of the nine jus- tices decided that these discrepancies do not violate Title XIX of the Social Secu- rity Act (Medicaid), the Fourteenth Amendment to the U.S. Constitution (which mandates due process and equal protection under the law), or the Court's 1973 abortion decisions (which decreed that the state cannot interfere with the decision of a woman and her doctor re- garding abortion in the first trimester of pregnancy). The three other justices dis- sented vigorously (see p. 179). Justice Thurgood Marshall, for example, said that such restrictions on access to abor- tion "are in reality intended to impose a moral viewpoint that no State may con- stitutionally enforce." The effect of the Court's decisions, he predicted, will be to "brutally coerce poor women to bear children whom society will scor

. every day of their lives."3 The Supreme Court ruled on three re-

lated abortion cases, from Pennsylvania (Beal v. Doe), Connecticut (Maher v. Roe) and Missouri (Poelker v. Doe). Jus- tice Lewis F. Powell delivered the deci- sions of the court. He was joined by Chief Justice Warren E. Burger (who also filed a brief separate opinion in the Pennsylvania case) and Justices Potter Stewart, Byron R. White, William H. Rehnquist and John P. Stevens. Justice William J. Brennan delivered dissenting opinions in which he was joined by Jus-

tices Harry A. Blackmun and Thurgood Marshall.4 Justice Marshall filed an in- dividual dissenting opinion in all three cases, as did Justice Blackmun (in which he was joined by Justices Marshall and Brennan).5

Among the Court's rulings: * The Medicaid statute gives the states broad latitude in deciding which serv- ices, other than those that are "medically necessary," are covered under the Medi- caid program. However, "serious statu- tory questions might be presented if a state excluded necessary medical treat- ment from its coverage," the Court not- ed, pointing out that in its 1973 decision (Doe v. Bolton), it had found that medi- cal necessity in the case of abortion'"is a professional judgment that . . . may be exercised in the light of all factors- physical, emotional, psychological, fa- milial, and the woman's age-relevant to the well-being of the patient" (emphasis added). * Title XIX makes no specific reference to abortion, and since abortion was ille- gal in most states when the Medicaid law was passed by Congress in 1965, it cannot be assumed that Congress meant to require states to pay for this proce- dure. As the author of the Medicaid bill, Congress must clarify this question, the Court concluded. * The state has a "valid and important interest in encouraging childbirth," and there is nothing in Title XIX or the Con- stitution which bars the state from fur- thering this interest by refusing to pay for "nontherapeutic" abortions. * The decision of a state not to pay for those abortions deemed unnecessary "involves no discrimination," since financial need alone is not a basis for in- voking the Fourteenth Amendment's guarantee of equal protection. * By refusing to pay for abortions, the state is not creating an obstacle to a woman's right to terminate her pregnan-

cy in the first trimester. In not removing an already present obstacle-namely, poverty-the state is exercising its legiti- mate power to encourage childbirth. * These decisions, the Court said, do not constitute a retreat from its 1973 de- cisions (Roe v. Wade, Doe v. Bolton), since "there is a basic difference be- tween direct state interference with a protected activity and state encourage- ment of an alternative activity." * The Court found that the requirement of the Pennsylvania Medicaid program that two physicians other than the at- tending physician examine the patient and concur in writing that an abortion is medically necessary "may conflict with Title XIX" by interfering "with the at- tending physician's medical judgment in a manner not contemplated by the Con- gress." The Court ordered that this re- quirement be considered by the district Court. * The Court upheld Connecticut's re- quirements that the pregnant woman file a written request to obtain an abortion and that the Department of Social Ser- vices authorize the abortion in advance of the procedure. Even though no such requirements are imposed on other med- ical procedures, the Court held that they are justified in this case, since only abor- tion involves "the termination of a po- tential human life."

The Pennsylvania Case

The Medicaid program allows each par- ticipating state to set "reasonable stand- ards" of medical assistance to disabled and poor people. Pennsylvania's federal- ly approved standards permit payment for abortions only if they are deemed medically necessary by three physicians. (The state regulation defines medical ne- cessity as including cases where the physical or mental health of the woman is threatened by continued pregnancy, where the pregnancy results from rape or incest, or where there is evidence that the child may be born with a physical or

Volume 9, Number 4, July/August 1977 177

This content downloaded from 62.122.79.90 on Sun, 15 Jun 2014 21:25:12 PMAll use subject to JSTOR Terms and Conditions

mental handicap.) .he Court ruled that the Pennsylvania statute was broad enough to meet the standard of medical necessity it had adduced in Doe-name- ly, that "all factors . . . relevant to the well-being of the patient must be consid- ered."

The case before the Court (Beal v. Doe) was brought by indigent women who were qualified to receive Medicaid but were denied payment for "non- therapeutic" abortions. They argued that the state regulation did not fulfill the in- tention of Title XIX and denied them the equal protection guaranteed by the Fourteenth Amendment. The district court which first heard the case agreed that the regulation creates "an unlawful distinction between indigent women who choose to carry their pregnancies to birth and indigent women who choose to terminate their pregnancies by abor- tion." The court of appeals, to which the case was next taken, ruled that the regu- lation violates Title XIX by requiring a physician's certificate during the first two trimesters.

The Supreme Court, as the final arbi- ter, decided this case on statutory grounds. The Medicaid program, it held, "confers broad discretion on the States" as to the procedures they choose to cov- er, and "it is hardly inconsistent with the Act [Title XIX] for a State to refuse to fund unnecessary-though perhaps de- sirable-medical services." Further- more, the Court declared, the state has "a valid and important interest in encourag- ing childbirth," and may do so by its al- location of public funds. "We make clear, however," the Court pointed out, "that the federal statute leaves a State free to provide such coverage if it so de- sires.

In their dissenting opinion, Justices Brennan, Blackmun and Marshall main- tain that the regulation is in violation of the Medicaid statute. "Pregnancy is unquestionably a condition requiring medical services," the dissenters ob- served and "the Medicaid statutes leave

'Indeed, the Court held, the State might depart "from a position of neutrality between abortion and childbirth" if it is concerned about its rate of popu- lation growth-implying that it could choose to finance abortions and deny funding for childbirth!

the decision as to choice among preg- nancy procedures exclusively with the doctor and his patient." The statute re- quires only that the treatment be "in the best interests" of the patient, they noted. Since the Court's decision in these cases "can only result as a practical matter in forcing penniless pregnant women to have children they would not have borne . . . [it] makes a mockery" of that requirement.

"Neither is it an acceptable answer, as the Court well knows," Justice Black- mun pointed out in his dissent, "to say that the Congress and the States are free to authorize the use of funds for non- therapeutic abortions. Why should any politician incur the demonstrated wrath and noise of the abortion opponents when mere silence and nonactivity acomplish the results the opponents want?"

The Connecticut Case

As in Pennsylvania, Connecticut's Medi- caid program covers only those abor- tions deemed "medically necessary" (a term defined to include "psychiatric ne- cessity"). This case (Maher v. Roe) had gone from the district court to the court of appeals and back to the district court again, which ruled that the state regula- tion barring Medicaid reimbursement for nontherapeutic abortions violated both the Title XIX statute and the Four- teenth Amendment. Abortion and child- birth, the district court had said, "when stripped of the sensitive moral ar- guments . . . , are simply two alterna- tive medical methods of dealing with pregnancy," and, thus, if a state pays for one, it should also pay for the other.

The Supreme Court said that the state is under no constitutional obligation to pay the pregnancy-related expenses-or any medical expenses-of indigent women, but that when it does elect "to alleviate some of the hardships of pover- ty by providing medical care, the man- ner in which it dispenses benefits is sub- ject to constitutional limitations." The state may, however, encourage child- birth over abortion without violating the equal protection clause of the Four- teenth Amendment, the Court ruled, be- cause "financial need alone [does not identify] a suspect class for purposes of equal protection analysis" and "abortion is not a fundamental right explicitly or implicitly protected by the Constitu- tion."

The dissenting justices contended that both the Connecticut and Pennsylvania regulations are discriminatory because they "clearly coerce indigent women to bear children they would not otherwise choose to have, and just as clearly, this coercion can only operate upon the poor." In addition, Justice Marshall pointed out that "the effect of the chal- lenged regulations will fall with great disparity upon women of minority ra- ces . . . [who] now obtain abortions at nearly twice the rate of whites."

The court also held that the Connecti- cut regulation does not impinge upon the fundamental right of privacy (recog- nized in Roe v. Wade) that protects a woman from "unduly burdensome inter- ference with her freedom to decide whether or not to terminate her pregnan- cy." The Court ruled that the regulation "places no obstacles-absolute or other- wise-in the pregnant woman's path to an abortion." The privacy right, the Court held, implies no limitation of a state's authority to make a value judg- ment favoring childbirth over abortion and to implement that judgment by allo- cation of public funds. *

Acknowledging that poverty "may make it difficult-and in some cases, per- haps, impossible-for some women to have abortions," the Court maintained that this poverty is "neither created nor in any way affected by the Connecticut regulation."

The dissenting Justices insisted that the regulations do violate the right to pri- vacy, guaranteed by the due process clause of the Fourteenth Amendment, by interfering with the woman's decision through financial pressure. They cited, among other rulings, the Supreme Court's 1976 decision that to require spousal consent for abortion was uncon- stitutional even though that requirement did not create an absolute barrier to abortion for all women. They empha- sized that the Court has "repeatedly found that infringements of fundamen- tal rights are not limited to outright deni- als of those . . . rights but [refer] also to restraints that make exercise of those rights more difficult."

The Court said that it did not in Roe "declare an unqualified 'constitutional right to an abortion'. . . Rather, the right protects the woman from unduly burdensome interference with her free- dom to decide to terminate her pregnan- cy." This does not mean that the state must pay for abortions, the Court held.

178 Family Planning Perspectives

This content downloaded from 62.122.79.90 on Sun, 15 Jun 2014 21:25:12 PMAll use subject to JSTOR Terms and Conditions

Therefore, its decision in the Connecti- cut case "signals no retreat from Roe."

"None can take seriously the Court's assurance that its 'conclusion signals no retreat from Roe,"' the disenters stated. In his separate dissent, Justice Marshall pointed out that Doe v. Bolton, the 1973 companion case to Roe v. Wade, held that any state interest during the first trimester was insufficient to justify state interference with the right to abortion. Furthermore, Justice Blackmun said,

the Court concedes the existence of a constitutional right but denies the realization and enjoyment of that right on the ground that exis- tence and realization are separate and distinct. For the individual woman concerned, indigent and financially helpless, as the Court's opinions in the three cases con- cede her to be, the result is puni- tive and tragic. Implicit in the Court's holdings is the condescen- sion that she may go elsewhere for her abortion. I find that disingenu- ous and alarming, almost reminis- cent of "let them eat cake."

The Missouri Case

The third case involved a suit brought by a poor woman against the mayor and the director of hospitals of St. Louis (Po- elker v. Doe). This woman had been de- nied an abortion because the mayor had directed the city hospitals not to perform any abortions except in cases where car- rying the pregnancy to term would result in serious physical injury or death of the woman. The hospital in question was staffed by faculty and graduates of a lo- cal Roman Catholic medical school.

The court of appeals had held that the city's policy and the hospital's staffing practice denied indigent women their constitutional right of equal protection by providing free services for women who chose to give birth, but not for women who chose to terminate their pregnancies. As in the Connecticut case, the Supreme Court found nothing wrong in this practice. Noting that the mayor is an elected official, the Court concluded that "the Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth as St. Louis has done."

In his dissent, Justice Blackmum com- mented:

The result the Court reaches is par-

ticularly distressing in Poelker v. Doe, where a presumed majority, in electing as mayor one whom the record shows campaigned on the issue of closing public hospitals to nontherapeutic abortions, puni- tively imposed upon a needy mi- nority its own concepts of the so- cially desirable, the publicly ac- ceptable, and the morally sound with a touch of the devil-take-the- hindmost. This is not the kind of thing for which our Constitution stands.

The Implications

While it is too early to assess the impact of the Supreme Court's decisions, at this writing there are 15 states which forbid the use of Medicaid funds for abortions which are not deemed medically neces- sary.6 In nine states, these regulations had been enjoined as the result of lower court orders. Within one week of the court's decisions, two of these states- Counecticut and Missouri-had ordered a halt to Medicaid payments for "non- therapuetic" abortions. And the Su- preme Court vacated lower court deci- sions in New York and South Dakota that had prevented enforcement of bans on Medicaid funding of abortions. How- ever, New York's Governor Hugh Carey indicated that New York State would continue to pay for Medicaid abortions.

In addition to preventing poor women from using avilable abortion services, Justice Marshall pointed out, "it seems inevitable that the number and geo- graphical distributiQn of abortion pro- viders will diminish as a result of today's decisions." As Justice Blackmun con- cluded:

There is another world "out there," the existence of which the Court, I suspect, either chooses to ignore or fears to recognize. And so the cancer of poverty will continue to grow. This is a sad day for those who regard the Constitution as a force that would serve justice to all evenhandedly and, in so doing, would better the lot of the poorest among us.

References

1. Beal v. Doe, U.S. Supreme Court No. 75-554 (1977); and Maher v. Roe, U.S. Supreme Court No. 75-1440(1977).

2. Poelker v. Doe, U.S. Supreme Court No. 75-442 (1977).

3. Dissenting opinion on the above three cases by Justice Marshall, June 20, 1977.

4. Dissenting opinions on the above cases by Justice Brennan, with whom Justices Marshall and Black- mun joined, June 20, 1977.

5. Dissenting opinion by Justice Blackmun, 45 U.S. Law Week 4787 (June 21, 1977).

6. Patricia Donovan, The Alan Guttmacher Institute, Washington, D.C., personal communication, June 1977.

In Their Own Words: The Decisions and Dissents

Consequences

Decision: "We certainly are not unsym- pathetic to the plight of an indigent woman who desires an abortion, but 'the Constitution does not provide judicial remedies for every social and economic ill.' " [Maher v. Roe, p. 14] Dissent: "The right of every woman to choose whether to bear a child is of . . .fundamental importance. An un- wanted child may be disruptive and de- structive of the life of any woman, but the impact is felt most by those too poor to ameliorate those effects. If funds for an abortion are unavailable, a poor wom- an may feel that she is forced to obtain an illegal abortion that poses a serious threat to her health and even her life. . . .If she refuses to take this risk, and undergoes the pain and danger of state-financed pregnancy and childbirth, she may well give up all chance of escap- ing the cycle of poverty. Absent day care facilities, she will be forced into full- time child care for years to come; she will be unable to work so that her family can break out of the welfare system or the lowest income brackets. If she al- ready has children, another infant to feed and clothe may well stretch the budget past the breaking point. All chance to control the direction of her own life will have been lost." [Marshall, p.5]

"The importance of today's decision is greatly magnified by the fact that during 1975 and the first quarter of 1976 only about 18 percent of all public hospitals in the country provided abortion ser- vices, and in 10 States there were no public hospitals providing such ser- vices. . . . The Court's holding will also pose difficulties in small coimmuni- ties where the public hospital is the only nearby health care facility. If such a

(Continued on page 182)

Volume 9, Number 4, July/August 1977 179

This content downloaded from 62.122.79.90 on Sun, 15 Jun 2014 21:25:12 PMAll use subject to JSTOR Terms and Conditions