MARSHALL, J., dissenting

432 U.S.

rejected the Government's argument that the propriety of the objection was "outside the permissible scope of judicial inquiry." Brief for United States in Georgia v. United States, O. T. 1972, No. 72-75, p. 38.

The Court simply ignores this glaring contradiction between our action in Georgia v. United States and its holding today. Since the Court does not overrule Georgia v. United States, I can only conclude that the law now allows review of the Attorney General's decision to object to implementation of a statute, but it does not allow review of his failure to object.1 I can find no support for such a bizarre rule. I am sure that others, especially members of the Congress whose intent the Court is supposedly following, will be equally baffled.

II

13

Perhaps out of justifiable embarrassment, the majority never mentions the effect of its ruling. That effect is easy to describe: The Court today upholds a system of choosing members of the South Carolina Senate that has prevented the election of any black senators, despite the fact that 25% of South Carolina's population is black." Thus, South Carowhether the proposed change did or did not have a discriminatory purpose or effect, and if it did, to object thereto." 411 U. S., at 543 (emphasis added).

Under the majority's holding today, of course, failure to object for any of the reasons my Brother considered clearly invalid would not be subject to judicial correction.

13 But cf. ante, at 505 n. 21 and 507 n. 24.

14 The majority argues that preclusion of review is consistent with the congressional purpose because even if one or two bad laws slip by the Attorney General, the requirement that the laws be submitted to him will result in the interception of most discriminatory legislation. Ante, at 506-507. The effect of today's ruling, which allows South Carolina to keep its senate closed to blacks, demonstrates the fatuousness of this quantitative argument. Moreover, the Voting Rights Act, as restructured by the Court, now imposes no enforceable restraint on an Attorney General's decision not to object to any discriminatory laws.

491

BLACKMUN, J., dissenting

lina, which was a leader of the movement to deprive the former slaves of their federally guaranteed right to vote, South Carolina v. Katzenbach, 383 U. S., at 310-311, and n. 9, 333-334, is allowed to remain as one of the last successful members of that movement. It would take much more evidence than the Court can muster to convince me that this result is consistent with "Congress' firm intention to rid the country of racial discrimination in voting." Id., at 315. Certainly the Court has failed to identify "clear and convincing evidence,'” Abbott Laboratories v. Gardner, 387 U. S., at 141, that this result is compelled by the Act Congress passed to implement that intention.

It is true that today's decision does not quite spell the end of all hope that the South Carolina Senate will someday be representative of the entire citizenry of South Carolina. If the Decennial Census in 1980 requires substantial reapportionment, and if the Voting Rights Act is still in effect when that reapportionment takes place, and if the then Attorney General is conscientious, the devices approved today will be rejected under the strict standards of § 5. See Georgia v. United States, 411 U. S., at 531. But see Beer v. United States, 425 U. S. 130 (1976). This highly contingent possibility that the promise of the Fifteenth Amendment will be realized in South Carolina, some 110 years after that Amendment was ratified, is apparently sufficient in the eyes of the majority. It is not sufficient for me, as it was not for Congress, which wrote the Voting Rights Act in 1965 to put an end to what was then "nearly a century of widespread resistance to the Fifteenth Amendment." South Carolina v. Katzenbach, supra, at 337.

MR. JUSTICE BLACKMUN, dissenting.

In Harper v. Levi, 171 U. S. App. D. C. 321, 520 F. 2d 53 (1975), the United States Court of Appeals for the District of Columbia Circuit held that the Attorney Gen

BLACKMUN, J., dissenting

432 U.S.

eral's decision not to make an independent assessment of South Carolina Act 1205 is reviewable under the circumstances of this case, and that § 5 of the Voting Rights Act of 1965 requires him to make an independent determination on the merits of the § 5 issues. See ante, at 497-498. For the reasons stated by the majority opinion in Harper v. Levi, I dissent.

Per Curiam

POELKER, MAYOR OF ST. LOUIS, ET AL. v. DOE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 75-442. Argued January 11, 1977-Decided June 20, 1977

The city of St. Louis, in electing, as a policy choice, to provide publicly financed hospital services for childbirth but not for nontherapeutic abortions, held not to violate any constitutional rights. Maher v. Roe, ante, p. 464.

515 F.2d 541, reversed and remanded.

Eugene P. Freeman argued the cause for petitioners. With him on the brief was Jack L. Koehr.

Frank Susman argued the cause and filed a brief for respondent.*

PER CURIAM.

Respondent Jane Doe, an indigent, sought unsuccessfully to obtain a nontherapeutic abortion at Starkloff Hospital, one of two city-owned public hospitals in St. Louis, Mo. She subsequently brought this class action under 42 U. S. C. § 1983 against the Mayor of St. Louis and the Director of Health and Hospitals, alleging that the refusal by Starkloff Hospital to provide the desired abortion violated her constitutional rights. Although the District Court ruled against Doe following a trial, the Court of Appeals for the Eighth Circuit reversed in

*Briefs of amici curiae urging affirmance were filed by Leo Pfeffer for the American Jewish Congress et al.; and by Sylvia A. Law, Harriet F. Pilpel, and Eve W. Paul for the American Public Health Assn. et al.

Briefs of amici curiae were filed by Dennis J. Horan, Dolores V. Horan, and Victor G. Rosenblum for Americans United for Life, Inc.; by Jerome M. McLaughlin for Missouri Doctors for Life; and by Robert E. Ratermann for James R. Butler et al.

an opinion that accepted both her factual and legal arguments. 515 F. 2d 541 (1975).1

The Court of Appeals concluded that Doe's inability to obtain an abortion resulted from a combination of a policy directive by the Mayor and a longstanding staffing practice at Starkloff Hospital. The directive, communicated to the Director of Health and Hospitals by the Mayor, prohibited the performance of abortions in the city hospitals except when there was a threat of grave physiological injury or death to the mother. Under the staffing practice, the doctors and medical students at the obstetrics-gynecology clinic at the hospital are drawn from the faculty and students at the St. Louis University School of Medicine, a Jesuit-operated institution opposed to abortion. Relying on our decisions in Roe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973), the Court of Appeals held that the city's policy and the hospital's staffing practice denied the "constitutional rights of indigent pregnant women . . . long after those rights had been clearly enunciated" in Roe and Doe. 515 F. 2d, at 547. The court cast the issue in an equal protection mold, finding that the provision of publicly financed hospital services for childbirth but not for elective abortions constituted invidious discrimination. In support of its equal protection analysis, the court also emphasized the contrast between nonindigent women who can afford to obtain abortions in private hospitals and indigent women who cannot. Particular reliance was placed upon the previous decision in Wulff v. Singleton, 508 F. 2d 1211 (CA8 1974), reversed on other grounds, 428 U. S. 106 (1976), in which the Court of Appeals

1 The facts concerning Doe's visit to the hospital and the reason for her inability to obtain an abortion are hotly disputed. Our view that the Court of Appeals erred in the application of the law to the facts as stated in its opinion makes it unnecessary to describe or resolve this conflict.