| Beal v. Doe
(No. 75-554)
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| Syllabus
| Opinion
[ Powell ] | Dissent
[ Brennan ] | Dissent
[ Marshall ] | Dissent
[ Blackmun ] |
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PDF version | HTML version
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Beal v. Doe
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR. JUSTICE BLACKMUN join, dissenting.
The Court holds that the "necessary medical services" which Pennsylvania must fund for individuals eligible for [p449] Medicaid do not include services connected with elective abortions. I dissent.
Though the question presented by this case is one of statutory interpretation, a difficult constitutional question would be raised where Title XIX of the Social Security Act, as amended, 42 U.S.C. § 1396 et seq. (1970 ed. and Supp. V), is read not to require funding of elective abortions. Maher v. Roe, post, p. 464; Doe v. Bolton, 410 U.S. 179 (1973); Roe v. Wade, 410 U.S. 113 (1973). Since the Court should "first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided," Ashwander v. TVA, 297 U.S. 288, 341, 348 (1936) (Brandeis, J., concurring); see Westby v. Doe, 420 U.S. 968 (1975), Title XIX, in my view, read fairly in light of the principle of avoidance of unnecessary constitutional decisions, requires agreement with the Court of Appeals that the legislative history of Title XIX and our abortion cases compel the conclusion that elective abortions constitute medically necessary treatment for the condition of pregnancy. I would therefore find that Title XIX requires that Pennsylvania pay the costs of elective abortions for women who are eligible participants in the Medicaid program.
Pregnancy is unquestionably a condition requiring medical services. See Roe v. Norton, 380 F.Supp. 726, 729 (Conn.1974); Klein v. Nassau County Medical Center, 347 F.Supp. 496, 500 (EDNY 1972), vacated for further consideration (in light of Roe v. Wade and Doe v. Bolton), 412 U.S. 925 (1973). Treatment for the condition may involve medical procedures for its termination, or medical procedures to bring the pregnancy to term, resulting in a live birth.
[A]bortion and childbirth, when stripped of the sensitive moral arguments surrounding the abortion controversy, are simply two alternative medical methods of dealing with pregnancy. . . .
Roe v. Norton, 408 F.Supp. 660, 663 n. 3 (Conn.175). The [p450] Medicaid statutes leave the decision as to choice among pregnancy procedures exclusively with the doctor and his patient, and make no provision whatever for intervention by the State in that decision. Section 1396a(a)(19) expressly imposes the obligation upon participating States to incorporate safeguards in their programs that assure medical "care and services will be provided, in a manner consistent with . . . the best interests of the recipients." And, significantly, the Senate Finance Committee Report on the Medicaid bill expressly stated that the "physician is to be the key figure in determining utilization of health services." S.Rep. No. 404, 89th Cong., 1st Sess., 46 (1965). Thus the very heart of the congressional scheme is that the physician and patient should have complete freedom to choose those medical procedures for a given condition which are best suited to the needs of the patient.
The Court's original abortion decisions dovetail precisely with the congressional purpose under Medicaid to avoid interference with the decision of the woman and her physician. Roe v. Wade, supra at 163, held that
[t]he attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated.
And Doe v. Bolton, supra, at 192, held that
the medical judgment may be exercised in the light of all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman. [*]
Once medical treatment of some [p451] sort is necessary, Title XIX does not dictate what that treatment should be. In the face of Title XIX's emphasis upon the joint autonomy of the physician and his patient in the decision of how to treat the condition of pregnancy, it is beyond comprehension how treatment for therapeutic abortions and live births constitutes "necessary medical services" under Title XIX, but that for elective abortions does not.
If Pennsylvania is not obligated to fund medical services rendered in performing elective abortions because they are not "necessary" within the meaning of 42 U.S.C. § 1396 (1970 ed., Supp. V), it must follow that Pennsylvania also would not violate the statute if it refused to fund medical services for "therapeutic" abortions or live births. For if the [p452] availability of therapeutic abortions and live births makes elective abortions "unnecessary," the converse must also be true. This highlights the violence done the congressional mandate by today's decision. If the State must pay the costs of therapeutic abortions and of live birth as constituting medically necessary responses to the condition of pregnancy, it must, under the command of § 1396, also pay the costs of elective abortions; the procedures in each case constitute necessary medical treatment for the condition of pregnancy.
The 1972 family planning amendment to the Act, 42 U.S.C. § 1396d(a)(4)(C) (1970 ed., Supp. V), buttresses my conclusion that the Court's construction frustrates the objectives of the Medicaid program. Section 1396(2) states that an explicit purpose of Medicaid is to assist eligible indigent recipients to "attain or retain capability for independence or self-care." The 1972 amendment furthered this objective by assisting those who "desire to control family size in order to enhance their capacity and ability to seek employment and better meet family needs." S.Rep. No. 92-1230, p. 297 (1972). Though far less than an ideal family planning mechanism, elective abortions are one method for limiting family size and avoiding the financial and emotional problems that are the daily lot of the impoverished. See Special Subcommittee on Human Resources of the Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess., Report of the Secretary of Health, Education, and Welfare Submitting Five-Year Plan for Family Planning Services and Population Research Programs 319 (Comm.Print 1971).
It is no answer that abortions were illegal in 1965 when Medicaid was enacted, and in 1972 when the family planning amendment was adopted. Medicaid deals with general categories of medical services, not with specific procedures, and nothing in the statute even suggests that Medicaid is designed to assist in payment for only those medical services that were [p453] legally permissible in 1985 and 1972. I fully agree with the Court of Appeals statement:
It is impossible to believe that, in enacting Title XIX, Congress intended to freeze the medical services available to recipients at those which were legal in 1965. Congress surely intended Medicaid to pay for drugs not legally marketable under the FDA's regulations in 1965 which are subsequently found to be marketable. We can see no reason why the same analysis should not apply to the Supreme Court's legalization of elective abortion in 1973.
523 F.2d 611, 622-623 (1975). Nor is the administrative interpretation of the Department of Health, Education, and Welfare that funding of elective abortions is permissible, but not mandatory, dispositive of the construction of "necessary medical services." The principle of according weight to agency interpretation is inapplicable when a departmental interpretation, as here, is patently inconsistent with the controlling statute. Townsend v. Swank, 404 U.S. 282, 286 (1971).
Finally, there is certainly no affirmative policy justification of the State that aids the Court's construction of "necessary medical services" as not including medical services rendered in performing elective abortions. The State cannot contend that it protects its fiscal interests in not funding elective abortions when it incurs far greater expense in paying for the more costly medical services performed in carrying pregnancies to term, and, after birth, paying the increased welfare bill incurred to support the mother and child. Nor can the State contend that it protects the mother's health by discouraging an abortion, for not only may Pennsylvania's exclusion force the pregnant woman to use of measures dangerous to her life and health but, as Roe v. Wade, 410 U.S. at 149, concluded, elective abortions by competent licensed physicians are now "relatively safe," and the risks to women [p454] undergoing abortions by such means "appear to be as low as or lower than . . . for normal childbirth."
The Court's construction can only result, as practical matter, in forcing penniless pregnant women to have children they would not have borne if the State had not weighted the scales to make their choice to have abortions substantially more onerous. Indeed, as the Court said only last Term:
For a doctor who cannot afford to work for nothing, and a woman who cannot afford to pay him, the State's refusal to fund an abortion is as effective an "interdiction" of it as would ever be necessary.
Singleton v. Wulff, 428 U.S. 106, 118-119, n. 7 (1976). The Court's construction thus makes a mockery of the congressional mandate that States provide "care and services . . . in a manner consistent with . . . the best interests of the recipients." We should respect the congressional plan by construing § 1396 as requiring States to pay the costs of the "necessary medical services" rendered in performing elective abortions, chosen by physicians and their women patients who participate in Medicaid as the appropriate treatment for their pregnancies.
The Court does not address the question whether the provision requiring the concurrence in writing of two physicians in addition to the attending physician conflicts with Title XIX. I would hold that the provision is invalid as clearly in conflict with Title XIX under my view of the paramount role played by the attending physician in the abortion decision, and, in any event, is constitutionally invalid under Doe v. Bolton, 410 U.S. at 198-200.
I would affirm the judgment of the Court of Appeals.
* The Court states, ante at 442 n. 3, that Pennsylvania has left the abortion decision to the patient and her physician in the manner prescribed in Doe v. Bolton. Pennsylvania indeed does allow the attending physician to provide a certificate of medical necessity "on the basis of all relevant factors," ante at 442 n. 3, but Pennsylvania's concept of relevance does not extend far enough to permit doctors freely to provide certificates of medical necessity for all elective abortions. At oral argument, counsel for petitioners carefully stated the State's position as follows:
[L]et me make perfectly clear my concession. That is, that a physician, in examining a patient, may take psychological, physical, emotional, familial considerations into mind and, in the light of those considerations, may determine if those factors affect the health of the mother to such an extent as he would deem an abortion necessary.
I think the key in the Bolton language, and the key in the Vuitch [United States v. Vuitch, 402 U.S. 62 (1971)] language is the fact that the physician, using all of these facts -- and there are probably more that he should use -- must determine if the woman's health -- that is, her physical or psychological health -- is jeopardized by the condition of pregnancy.
That is not to say, obviously, as I believe the Plaintiffs are asserting, that the fact that the family is going to increase makes an abortion medically necessary.
Tr. of Oral Arg. 8.
Petitioners' "concession" only goes so far as to permit an attending physician to consider an abortion as it relates to a woman's health. Bolton recognized that the factors considered by a physician "may relate to health," but, in the very same paragraph, made clear that those factors were more broadly directed to the "wellbeing" of the woman. 410 U.S. at 192 (emphasis added). While the right to privacy does implicate health considerations, the constitutional right recognized and protected by the Court's abortion decisions is the "right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).