Maher v. Roe (1977)
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:
[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
abortion is to be performed in an accredited hospital or licensed
clinic when the patient is in the first trimester of pregnancy. . .
written request for the abortion is submitted by the patient, and
in the case of a minor, from the parent or guardian.
authorization for the abortion is secured from the Chief of Medical
Services, Division of Health Services, Department of Social
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
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:
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
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
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
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.