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Maher v. Roe (1977)

In Depth

Background

A Connecticut regulation limited state Medicaid benefits for first trimester abortions to those that were "medically necessary," a term which was defined to include psychiatric necessity.  The State enforced this limitation by requiring prior authorization from the Department of Social Services.  In order to obtain authorization for a first trimester abortion, the hospital or clinic where the abortion was to be performed had to submit, among other things, a certificate from the patient's attending physician stating that the abortion was medically necessary.  Two indigent women who were unable to obtain a physician's certificate of medical necessity brought a lawsuit in federal district court challenging the regulation.  The plaintiffs sued the Commissioner of the Connecticut Department of Social Services.

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 Connecticut 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 Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The federal district court initially ruled in favor of the plaintiffs' statutory claim, but that ruling was reversed on appeal to the court of appeals.  On remand, the district court declared the funding limitation unconstitutional, as well as the requirements for a prior written request by the pregnant woman and prior authorization from the Department of Social Services.  The court held that "the Equal Protection Clause forbids the exclusion of nontherapeutic abortions from a state welfare program that generally subsidizes the medical expenses incident to pregnancy and childbirth."  Maher v. Roe, 432 U.S. at 468 (summarizing district court's holding).  "Abortion and childbirth," in the district court's opinion, "are simply alternative medical methods of dealing with pregnancy . . . ."  408 F.Supp. 660, 663 n.3 (D. Conn. 1975).  By paying for childbirth, but not abortions, the State "weights the choice of the pregnant mother against choosing to exercise her constitutionally protected right" to a nontherapeutic abortion and "thus infringes upon a fundamental interest."  Id. at 663-64.  The district court found no state interest to justify this infringement.  The State's fiscal interest was imaginary because "abortion is the least expensive medical response to a pregnancy."  Id. at 664. And any moral objection to abortion was, in the court's view, constitutionally irrelevant.  Id.   The State appealed to the Supreme Court.

The Regulation Under Review

The challenged regulation provided as follows:

The Department [of Social Services] makes payment for abortion services under the Medical Assistance (Title XIX) Program when the following conditions are met:

1.  In the opinion of the attending physician the abortion is medically necessary.  The term "Medically Necessary" includes psychiatric necessity.

2.  The abortion is to be performed in an accredited hospital or licensed clinic when the patient is in the first trimester of pregnancy. . . .

3.  The written request for the abortion is submitted by the patient, and in the case of a minor, from the parent or guardian.

*               *               *               *

4.  Prior authorization for the abortion is secured from the Chief of Medical Services, Division of Health Services, Department of Social Services.

Connecticut Welfare Department, Public Assistance Program Manual, Vol. 3, ch. III, § 275.

The Court's Holding

By a vote of six-to-three, the Court held that the Constitution does not require the States to pay for the costs of nontherapeutic abortions for indigent women.  Accordingly, the challenged regulation was upheld.

The Court's Reasoning

Justice Powell wrote the majority opinion for the Court.  Initially, Justice Powell pointed out that the Constitution "imposes no obligation on the States to pay the pregnancy-related medical expenses of indigent women, or indeed to pay any of the medical expenses of indigents." Maher, 432 U.S. at 469.  However, "when a State decides to alleviate some of the hardships of poverty by providing medical care, the manner in which it dispenses benefits is subject to constitutional limitations."  Id. at 469-70.  The plaintiffs claimed that "Connecticut must accord equal treatment to both abortion and childbirth, and may not evidence a policy preference by funding only the medical expenses incident to childbirth."  Id. at 470 (summarizing plaintiffs' argument).  Plaintiffs' argument, therefore, presented an equal protection issue.

For purposes of equal protection analysis, a statute, regulation or policy is subject to "strict scrutiny" if it classifies on the basis of a suspect personal characteristic (e.g., race, national origin, alienage) or if it impinges upon the exercise of a fundamental constitutional  right.  Maher, 432 U.S. at 470 (a law that is reviewed under the "strict scrutiny" standard is presumed to be unconstitutional and will be upheld only if the State can demonstrate that it is the least restrictive means of promoting a compelling state interest).  Justice Powell determined that the Connecticut abortion funding limitation did neither.  "An indigent woman desiring an abortion does not come within the limited category of disadvantaged classes so recognized by our cases."  Id. at 470-71.  "Nor does the fact that the impact of the regulation falls upon those who cannot pay lead to a different conclusion," because the Court "has never held that financial need alone identifies a suspect class for purposes of equal protection analysis."  Id. at 471.  The central question presented by the case, therefore, was whether the regulation impinged upon the exercise of a fundamental constitutional right under Roe v. Wade, 410 U.S. 113 (1973). Id.

Justice Powell reviewed the Court's decisions in Roe and its progeny and concluded that the right recognized in Roe "protects the woman from unduly burdensome interference with her freedom to decide to terminate her pregnancy.  It implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds."  Maher, 432 U.S. at 473-74.  The regulation challenged in Maher differed in kind from the laws struck down in the Court's previous abortion decisions:

The Connecticut regulation places no obstacles-absolute or otherwise-in the pregnant woman's path to an abortion.  An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut's decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires.  The indigency that may make it difficult-and in some cases, perhaps, impossible-for some women to have abortions is neither created nor in any way affected by the Connecticut regulation.

Id. at 474.

Justice Powell concluded that the regulation "does not impinge upon the fundamental right recognized in Roe."  Id.  He emphasized that the Court's conclusion "signals no retreat from Roe or the cases applying it."  Maher, 432 U.S. at 475.  That because "[t]here is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy."  Id. "[A] State is not required to show a compelling interest for its policy to favor normal childbirth . . . ."  Id. at 477.

Having decided that the regulation limiting abortion funding did not require application of the strict scrutiny standard of review, Justice Powell considered whether the limitation satisfied the more relaxed rational basis standard of review.  Under that standard, the question was whether the distinction drawn between childbirth and nontherapeutic abortion by the regulation was "rationally related" to a "constitutionally permissible" purpose.  Maher, 432 U.S. at 478 (citation and internal quotation marks omitted).  He concluded that it was.  "Roe itself," Justice Powell observed, "explicitly acknowledged the State's strong interest in protecting the potential life of the fetus," an interest which "exists throughout pregnancy, 'grow[ing] in substantiality as the woman approaches term.' " Id. (quoting Roe, 410 U.S. at 162-63).   "The State unquestionably has a 'strong and legitimate interest in encouraging normal childbirth,' . . . . an interest honored over the centuries."  Id. (quoting Beal v. Doe, 432 U.S. 438, 446 (1977).  And the State's regulation "rationally furthers that interest," Justice Powell explained, because "[t]he medical costs associated with childbirth are substantial," and "significantly greater than those normally associated with elective abortions during the first trimester."  Id. at 478-79.  Subsidizing the costs incident to childbirth "is a rational means of encouraging childbirth."  Id. at 479.  The Court also upheld the requirements in the regulation of prior written request by the pregnant woman and prior authorization by the Department of Social Services.  Id. at 480.

The Concurring And Dissenting Opinions

Chief Justice Burger wrote a short concurring opinion expressing his view that Connecticut's decision to fund childbirth, but not nontherapeutic abortions, "places no state-created barrier to a woman's choice to procure an abortion, and it does not require the State to provide it."  Maher, 432 U.S. at 481-82 (Burger, C.J., concurring).

Justice Brennan, joined by Justices Marshall and Blackum, dissented.  In Justice Brennan's opinion, the Court's decision "seriously erodes the principles that Roe and Doe [v. Bolton, 410 U.S. 179 (1973), the companion case to Roe] announced to guide the determination of what constitutes an unconstitutional infringement of the fundamental right of pregnant women to be free to decide whether to have an abortion."  Maher, 432 U.S. at 484 (Brennan, J., dissenting).  "The Connecticut scheme clearly impinges upon [the decision of a pregnant woman whether or not to carry her pregnancy to term] by bringing financial pressures on indigent women that force them to bear children they would not otherwise have."  Id. at 484.

As a practical matter, many indigent women will feel they have no choice but to carry their pregnancies to term because the State will pay for the associated medical services, even though they would have chosen to have abortions if the State had also provided funds for that procedure, or indeed if the State had provided funds for neither procedure.

Id. at 483.  In Justice Brennan's view, the Connecticut regulation limiting abortion funding for indigent women should have been subjected to the strict scrutiny standard of review, a standard, he emphasized, that it could not satisfy. Id. at 489-90.

Justices Marshall and Blackmun each filed a dissent in Beal v. Doe, 432 U.S. 438 (1977), which applied to the Court's holdings in Beal, Maher and Poelker v. Doe, 432 U.S. 519 (1977).   For a summary of their dissents, as well as an analysis of the substantive statutory and constitutional issues decided in Beal and Poelker, please see the fact sheets for those cases.

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