Query string values:


Beal v. Doe (1977)

In Depth


A Pennsylvania regulation prohibited the use of state Medicaid funds to pay for abortions for indigent women unless a physician certified in writing that the procedure was  "medically necessary."  A group of Medicaid-eligible pregnant women who desired abortions for nontherapeutic (elective) reasons brought a lawsuit in federal district court challenging the regulation.  The plaintiffs sued the Secretary of the Pennsylvania Department of Welfare and other state officials responsible for administering the state Medicaid program.

The lawsuit raised both statutory and constitutional claims.  Plaintiffs alleged that Title XIX of the Social Security Act (commonly known as the Medicaid Act) required Pennsylvania to provide coverage in its Medicaid plan for all abortions, not just those that were  "medically necessary." In the alternative, plaintiffs alleged that public funding of other medical services, but not abortions, violated the Equal Protection Clause of the Fourteenth Amendment.

The federal district court resolved the statutory issue adversely to the plaintiffs, but upheld their equal protection challenge to the funding restriction.  On appeal, the court of appeals reversed the district court on the statutory issue, holding that Title XIX "prohibits participating States from requiring a physician's certificate of medical necessity as a condition for funding during both the first and second trimester of pregnancy."  Beal v. Doe, 432 U.S. at 443 (summarizing lower court judgments).  Accordingly, the court of appeals did not reach the constitutional issue decided by the district court.  The Supreme Court granted review to resolve a conflict among the courts of appeals as to the obligations of the States under the Medicaid program.

The Statutes And Regulation Under Review

Title XIX establishes the Medicaid program under which participating States may provide federally funded medical assistance to needy persons.  The statute requires participating States to provide qualified individuals with financial assistance in five general categories of medical treatment, including inpatient and outpatient hospital services and physicians' services.  42 U.S.C. §§ 1396a(a)(13)(B) (1970 ed., Supp. V), 1396d(a)(1)-(5) 91970 ed. and Supp. V).  Although Title XIX does not require States to provide funding for all medical treatment falling within the five general categories, it does require that state Medicaid plans establish "reasonable standards . . . for determining . . . the extent of medical assistance under the plan which . . . are consistent with the objectives of [Title XIX]."  42 U.S.C. § 1396a(a)(17) (1970 ed., Supp. V).

Under a state regulation that was in effect at the time, an abortion was deemed "medically necessary," and therefore compensable under the state Medicaid program, if:

(1) There is documented medical evidence that continuance of the pregnancy may threaten the health of the mother;

(2) There is documented medical evidence that an infant may be born with incapacitating physical deformity or mental deficiency; or

(3) There is documented medical evidence that continuance of a pregnancy resulting from legally established statutory or forcible rape or incest, may constitute a threat to the mental or physical health of a patient; and

(4) Two other physicians chosen because of their recognized professional competency have examined the patient and have concurred in writing; and

(5) The procedure is performed in a hospital . . . .

3 Penn. Bulletin 2207, 2209 (Sep. 29, 1973).

The Court's Holding

By a vote of six-to-three, the Court held that Title XIX does not require States participating in the Medicaid program to pay for the cost of all abortions that are permissible under state law.  Accordingly, the challenged regulation was upheld.

The Court's Reasoning

In his majority opinion for the Court, Justice Powell noted that Title XIX "makes no reference to abortions or, for that matter, to any other particular medical procedure."  Beal v. Doe, 432 U.S. at 444.  Instead, "the statute is cast in terms that require participating States to provide financial assistance with respect to five broad categories of medical treatment [citing statute].  But nothing in the statute suggests that participating States are required to fund every medical procedure that falls within the delineated categories of medical care."  Id. The statute merely requires that a participating State establish a plan that includes "reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan which . . . are consistent with the objectives of [Title XIX]."  42 U.S.C. § 1396a(a)(17) (1970 ed., Supp. V).  "This language," Justice Powell wrote, "confers broad discretion on the States to adopt standards for determining the extent of medical assistance, requiring only that such standards be 'reasonable" and 'consistent with the objectives' of the Act."  Beal, 432 U.S. at 444.

The Court determined that the regulation restricting coverage for abortion services under the state Medicaid plan "comports fully with Title XIX's broadly stated primary objective to enable each State, as far as practicable, to furnish medical assistance to individuals whose income and resources are insufficient to meet the costs of necessary medical services." Beal, 432 U.S. at 444.  "Although serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage," the Court stated that "it is hardly inconsistent with the objectives of the Act for a State to refuse to fund unnecessary-though perhaps desirable-medical services."  Id. at 444-45 (emphasis in original).

It is important to note, in this regard, the very limited scope of the regulation challenged in Beal. At oral argument, counsel for the defendants advised the Court that the definition of "medical necessity" in the state regulation was broad enough to encompass all of the factors identified in Doe v. Bolton, 410 U.S. 179 (1973), that could relate to a woman's health.  Beal, 432 U.S. at 446 n. 3.  According to Doe, "all factors-physical, emotional, psychological, familial, and the woman's age-[are] relevant to the well-being of the patient" and "may relate to health."  410 U.S. at 192.  Further, under the Pennsylvania Medicaid plan that was in effect at the time, "[t]he decision whether to fund the cost of [an] abortion . . . depends solely on the physician's determination of medical necessity."  Beal, 432 U.S. at 445 n. 9.  The plaintiffs could point to nothing in the state program "that indicates state interference with the physician's initial determination [of medical necessity]."  Id.

Plaintiffs objected to the exclusion of nontherapeutic abortions from the state Medicaid program on both economic and health grounds.  The former objection was based on the view that "abortion is generally a less expensive medical procedure than childbirth.  Since a pregnant woman normally will either have an abortion or carry her child full term, a State that elects not to fund nontherapeutic abortions will eventually be confronted with the greater expenses of childbirth."  Beal, 432 U.S. at 445.  The latter objection  was based on the view that "an early abortion poses less of a risk to the woman's health than childbirth." Id. As a consequence, "the economic and health considerations that ordinarily support the reasonableness of state limitations on financing of unnecessary medical services are not applicable to pregnancy."  Id. (summarizing plaintiffs' arguments).

Without determining whether plaintiffs' economic and health-related objections were accurate, the Court did not agree that the exclusion of nontherapeutic abortions from Medicaid coverage was unreasonable under Title XIX.  Plaintiffs failed to take into account the State's "valid and important interest in encouraging childbirth."  Beal, 432 U.S. at 445.  Although, under Roe, that interest does not "become sufficiently compelling to justify unduly burdensome state interference with the woman's constitutionally protected privacy interest" until viability, "it is a significant state interest existing throughout the course of the woman's pregnancy."  Id. at 446.  Nothing in either the language or legislative history of Title XIX suggested that "it is unreasonable for a participating State to further this unquestionably strong and legitimate interest in encouraging normal childbirth."  Id.  In the absence of such a showing, the Court would not presume "that Congress intended to condition a State's participation in the Medicaid program on its willingness to undercut this important interest by subsidizing the costs of nontherapeutic abortions."  Id.

The Court supported its interpretation of Title XIX by two other considerations.  First, when Title XIX was passed in 1965, "nontherapeutic abortions were unlawful in most States." Beal, 432 U.S. at 447.  Given the state of the law at the time, it was implausible to suggest that "Congress intended to require-rather than permit-participating States to fund nontherapeutic abortions."  Id.  Second, the agency responsible for administering Title XIX-the Department of Health, Education and Welfare-took the position that "Title XIX allows-but does not mandate-funding for such abortions."  Id.  The Department's interpretation was entitled to deference in the absence of compelling indications to the contrary.  Id. Such indications, however, were entirely absent.  The Court held that Pennsylvania's refusal to extend Medicaid coverage to nontherapeutic abortions was not inconsistent with Title XIX.   Id. It emphasized, however, that Title XIX allows a State to provide such coverage if it so desires. Id.

In the final section of his opinion for the Court, Justice Powell noted one feature of the Pennsylvania Medicaid plan that might conflict with Title XIX, to wit, the requirement that two physicians in addition to the attending physician examine the patient and concur in writing that the abortion is medically necessary.  Beal, 432 U.S. at 448.  On the basis of the record presented, the Court was unable "to determine the precise role played by these two additional physicians," and consequently was unable "to ascertain whether this requirement interferes with the attending physician's medical judgment in a manner not contemplated by Congress."  Id. Accordingly, the judgment of the court of appeals was reversed and the case was remanded for consideration of that requirement. Id.

The Dissenting Opinions

Justices Brennan, Marshall and Blackmun each filed separate dissents

Justice Brennan, joined by Justices Marshall and Blackmun, argued that pregnancy is "a condition requiring medical services," and that "[t]reatment for the condition may involve medical procedures for its termination or medical procedures to bring the pregnancy to term, resulting in a live birth."  Beal, 432 U.S. at 449 (Brennan, J., dissenting).  Which course of treatment is selected is a matter that should be left up to the "complete freedom" of the patient and her physician.  Id. at 450.  "Once medical treatment of some kind is necessary, Title XIX does not dictate what that treatment should be." Id. at 450-51.  It is apparent from his dissent that Justice Brennan was of the opinion that Title XIX requires States participating in the Medicaid program to pay not only for health related abortions, no matter how broadly the term "health" is understood, but also any desired abortion, regardless of the reason.  Id. at 450-51 & n. *.

In his dissent, Justice Brennan also stressed that the State's policy of not paying for the cost of nontherapeutic abortions could not be justified by either cost considerations (because the medical costs associated with childbirth are higher than those associated with abortion) or by an interest in maternal health (because abortions early in pregnancy are safer than carrying the child to term).  Beal at 453-54 (Brennan, J., dissenting).  Justice Brennan did not address the interest the States have in promoting childbirth over abortion, upon which the majority relied in determining that the State's policy regarding nontherapeutic abortions was reasonable.

Justice Marshall dissented, principally on the grounds that the State's policy of not funding nontherapeutic abortions was intended to coerce poor women into continuing their pregnancies.Beal, 432 U.S. at 454-62 (Marshall, dissenting).  Justice Marshall's dissent also applied to the holdings in the companion cases of Maher v. Roe, 432 U.S. 464 (1977), and Poelker v. Doe, 432 U.S. 519 (1977), which are discussed in the summaries for those cases.

Justice Blackum, joined by Justices Brennan and Marshall, argued that the statutes, regulations and policies at issue in Beal, Maher and Poelker were all designed to do indirectly what the State and municipalities could not do directly, to wit, interfere with a pregnant woman's decision to obtain an abortion.  Beal, 432 U.S. at 462-63 (Blackmun, J., dissenting).

EndRoe.org Copyright © 2018 NCHLA