438 MARSHALL, J., dissenting 410 U. S., at 192-200. If a State's interest in potential human life before the point of viability is insufficient to justify requiring several physicians' concurrence for an abortion, ibid., I cannot comprehend how it magically becomes adequate to allow the present infringement on rights of disfavored classes. If there is any state interest in potential life before the point of viability, it certainly does not outweigh the deprivation or serious discouragement of a vital constitutional right of especial importance to poor and minority women.* Thus, taking account of all relevant factors under the flexible standard of equal protection review, I would hold the Connecticut and Pennsylvania Medicaid regulations and the St. Louis public hospital policy violative of the Fourteenth Amendment. II When this Court decided Roe v. Wade and Doe v. Bolton, it properly embarked on a course of constitutional adjudication no less controversial than that begun by Brown v. Board of Education, 347 U. S. 483 (1954). The abortion decisions are sound law and undoubtedly good policy. They have never been questioned by the Court, and we are told that today's cases "signa [1] no retreat from Roe or the cases applying it." Maher v. Roe, post, at 475. The logic of those cases inexorably requires invalidation of the present enact 5 Requirements that the abortion be performed by a physician exercising his best clinical judgment, and in a facility meeting narrowly tailored health standards, are allowable. Doe v. Bolton, 410 U. S., at 192-200. Application of the flexible equal protection standard would allow the Court to strike down the regulations in these cases without calling into question laws funding public education or English language teaching in public schools. See Maher v. Roe, post, at 476-477. By permitting a court to weigh all relevant factors, the flexible standard does not logically require acceptance of any equal protection claim that is "identical in principle" under the traditional approach to those advanced here. See Maher, post, at 477. BLACKMUN, J., dissenting 432 U.S. ments. Yet I 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. The effect will be to relegate millions of people to lives of poverty and despair. 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. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting.* The Court today, by its decisions in these cases, allows the States, and such municipalities as choose to do so, to accomplish indirectly what the Court in Roe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973)— by a substantial majority and with some emphasis, I had thought said they could not do directly. The Court concedes the existence of a constitutional right but denies the realization and enjoyment of that right on the ground that existence and realization are separate and distinct. For the individual woman concerned, indigent and financially helpless, as the Court's opinions in the three cases concede her to be, the result is punitive and tragic. Implicit in the Court's holdings is the condescension that she may go elsewhere for her abortion. I find that disingenuous and alarming, almost reminiscent of: "Let them eat cake." The result the Court reaches is particularly distressing in Poelker v. Doe, post, p. 519, where a presumed majority, in electing as mayor one whom the record shows campaigned on the issue of closing public hospitals to nontherapeutic abortions, punitively impresses upon a needy minority its own *[This opinion applies also to No. 75-1440, Maher, Commissioner of Social Services of Connecticut v. Roe et al., post, p. 464, and No. 75-442, Poelker, Mayor of St. Louis, et al. v. Doe, post, p. 519.] 438 BLACKMUN, J., dissenting concepts of the socially desirable, the publicly acceptable, 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 Court's financial argument, of course, is specious. To be sure, welfare funds are limited and welfare must be spread perhaps as best meets the community's concept of its needs. But the cost of a nontherapeutic abortion is far less than the cost of maternity care and delivery, and holds no comparison whatsoever with the welfare costs that will burden the State for the new indigents and their support in the long, long years ahead. Neither is it an acceptable answer, as the Court well knows, to say that the Congress and the States are free to authorize the use of funds for nontherapeutic abortions. Why should any politician incur the demonstrated wrath and noise of the abortion opponents when mere silence and nonactivity accomplish the results the opponents want? 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. MAHER, COMMISSIONER OF SOCIAL SERVICES OF CONNECTICUT v. ROE ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE No. 75-1440. Argued January 11, 1977-Decided June 20, 1977 Appellees, two indigent women who were unable to obtain a physician's certificate of medical necessity, brought this action attacking the validity of a Connecticut Welfare Department regulation that limits state Medicaid benefits for first trimester abortions to those that are "medically necessary." A three-judge District Court held that the Equal Protection Clause of the Fourteenth Amendment forbids the exclusion of nontherapeutic abortions from a state welfare program that generally subsidizes the medical expenses incident to pregnancy and childbirth. The court found implicit in Roe v. Wade, 410 U. S. 113, and Doe v. Bolton, 410 U. S. 179, the view that "abortion and childbirth . . . are simply two alternative medical methods of dealing with pregnancy. . . ." Held: 1. The Equal Protection Clause does not require a State participating in the Medicaid program to pay the expenses incident to nontherapeutic abortions for indigent women simply because it has made a policy choice to pay expenses incident to childbirth. Pp. 469–480. (a) Financial need alone does not identify a suspect class for purposes of equal protection analysis. See San Antonio School Dist. v. Rodriguez, 411 U. S. 1, 29; Dandridge v. Williams, 397 U. S. 471. Pp. 470 471. (b) The Connecticut regulation, does not impinge upon the fundamental right of privacy recognized in Roe, supra, that protects a woman from unduly burdensome interference with her freedom to decide whether or not to terminate her pregnancy. That right implies no limitation on a State's authority to make a value judgment favoring childbirth over abortion and to implement that judgment by the allocation of public funds. An indigent woman desiring an abortion is not disadvantaged by Connecticut's decision to fund childbirth; she continues as before to be dependent on private abortion services. Pp. 471-474. (c) A State is not required to show a compelling interest for its policy choice to favor normal childbirth. Pp. 475-477. (d) Connecticut's regulation is rationally related to and furthers its "strong and legitimate interest in encouraging normal childbirth," Beal v. Doe, ante, at 446. The subsidizing of costs incident to childbirth is a rational means of encouraging childbirth. States, moreover, have a wide latitude in choosing among competing demands for limited public funds. Pp. 478–480. 2. Since it is not unreasonable for a State to insist upon a prior showing of medical necessity to insure that its money is being spent only for authorized purposes, the District Court erred in invalidating the requirements of prior written request by the pregnant woman and prior authorization by the Department of Social Services for abortions. Although similar requirements are not imposed for other medical procedures, such procedures do not involve the termination of a potential human life. P. 480. 408 F. Supp. 660, reversed and remanded. POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, REHNQUIST, and STEVENS, JJ., joined. BURGER, C. J., filed a concurring statement, post, p. 481. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 482. MARSHALL, J., filed a dissenting opinion, ante, p. 454. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, ante, p. 462. Edmund C. Walsh, Assistant Attorney General of Connecticut, argued the cause for appellant. With him on the brief was Carl R. Ajello, Attorney General. Lucy V. Katz argued the cause for appellees. With her on the brief were Kathryn Emmett and Catherine Roraback.* MR. JUSTICE POWELL delivered the opinion of the Court. In Beal v. Doe, ante, p. 438, we hold today that Title XIX of the Social Security Act does not require the funding of nontherapeutic abortions as a condition of participation in the *William F. Hyland, Attorney General, Stephen Skillman, Assistant Attorney General, and Erminie L. Conley, Deputy Attorney General, filed a brief for the State of New Jersey as amicus curiae urging reversal. Sylvia A. Law, Harriet F. Pilpel, and Eve W. Paul filed a brief for the American Public Health Assn. et al. as amici curiae urging affirmance. Patricia A. Butler and Michael A. Wolff filed a brief for Jane Doe as amicus curiae. |