|Beal v. Doe
[ Powell ]
[ Brennan ]
[ Marshall ]
[ Blackmun ]
Beal v. Doe
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
MR. JUSTICE POWELL delivered the opinion of the Court.
The issue in this case is whether Title XIX of the Social Security Act, as added, 79 Stat. 343, and amended, 42 U.S.C. § 1396 et seq. (1970 ed. and Supp. V), requires States that participate in the Medical Assistance (Medicaid) program to fund the cost of nontherapeutic abortions.
Title XIX establishes the Medicaid program under which participating States may provide federally funded medical assistance to needy persons. [n1] The statute requires participating States to provide qualified individuals with financial assistance in five general categories of medical treatment. [n2] 42 [p441] U.S.C. §§ 1396a(a)(13)(B) (1970 ed., Supp. V), 1396d(a)(1)-(5) (1970 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).
Respondents, who are eligible for medical assistance under Pennsylvania's federally approved Medicaid plan, were denied financial assistance for desired abortions pursuant to Pennsylvania regulations limiting such assistance to those abortions that are certified by physicians as medically necessary. [n3] When [p442] respondents' applications for Medicaid assistance were denied because of their failure to furnish the required certificates, they filed this action in the United States District Court for the Western District of Pennsylvania seeking declaratory and injunctive relief. Their complaint alleged that Pennsylvania's requirement of a certificate of medical necessity contravened relevant provisions of Title XIX and denied them equal protection of the laws in violation of the Fourteenth Amendment. A three-judge District Court was convened pursuant to 28 U.S.C. § 2281. After resolving the statutory issue against respondents, the District Court held that Pennsylvania's medical necessity restriction denied respondents equal protection of the laws. Doe v. Wohlgemuth, 376 F.Supp. 173 (1974). [n4] [p443] Accordingly, the court granted a declaratory judgment that the Pennsylvania requirement was unconstitutional as applied during the first trimester. The United States Court of Appeals for the Third Circuit, sitting en banc, reversed 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 trimesters of pregnancy. [n5] 523 F.2d 611 (1975). The Court of Appeals therefore did not reach the constitutional issue. [n6]
The only question before us is one of statutory construction: whether Title XIX requires Pennsylvania to fund under [p444] its Medicaid program the cost of all abortions that are permissible under state law. "The starting point in every case involving construction of a statute is the language itself." Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975) (POWELL, J., concurring). Title XIX makes no reference to abortions, or, for that matter, to any other particular medical procedure. Instead, the statute is cast in terms that require participating States to provide financial assistance with respect to five broad categories of medical treatment. See n. 2, supra. 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. Indeed, the statute expressly provides:
A State plan for medical assistance must . . . include reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan which . . . are consistent with the objectives of this [Title]. . . .
42 U.S.C. § 1396a(a)(17) (1970 ed., Supp. V). This language 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. [n8]
Pennsylvania's regulation 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. See 42 U.S.C. §§ 1396 1396a(10)(C) (1970 ed., Supp. V). Although serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage, it is hardly inconsistent with the objectives of the Act for a State [p445] to refuse to fund unnecessary -- though perhaps desirable -- medical services.
The thrust of respondents' argument is that the exclusion of nontherapeutic abortions from Medicaid coverage is unreasonable on both economic and health grounds. [n9] The economic argument is grounded 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 associated with childbirth. The corresponding health argument is based on the view that an early abortion poses less of a risk to the woman's health than childbirth. Consequently, respondents argue, the economic and health considerations that ordinarily support the reasonableness of state limitations on financing of unnecessary medical services are not applicable to pregnancy.
Accepting respondents' assumptions as accurate, we do not agree that the exclusion of nontherapeutic abortions from Medicaid coverage is unreasonable under Title XIX. As we acknowledged in Roe v. Wade, 410 U.S. 113 (1973), the State has a valid and important interest in encouraging childbirth. We expressly recognized in Roe the "important and legitimate [p446] interest [of the State] . . . in protecting the potentiality of human life." Id. at 162. That interest alone does not, at least until approximately the third trimester, become sufficiently compelling to justify unduly burdensome state interference with the woman's constitutionally protected privacy interest. But it is a significant state interest existing throughout the course of the woman's pregnancy. Respondents point to nothing in either the language or the legislative history of Title XIX that suggests that it is unreasonable for a participating State to further this unquestionably strong and legitimate interest in encouraging normal childbirth. [n10] Absent such a showing, we will 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. [n11] [p447]
Our interpretation of the statute is reinforced by two other relevant considerations. First, when Congress passed Title XIX in 1965, nontherapeutic abortions were unlawful in most States. [n12] In view of the then-prevailing state law, the contention that Congress intended to require -- rather than permit -- participating States to fund nontherapeutic abortions requires far more convincing proof than respondents have offered. Second, the Department of Health, Education, and Welfare, the agency charged with the administration of this complicated statute, [n13] takes the position that Title XIX allows -- but does not mandate -- funding for such abortions.
[W]e must be mindful that "the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong. . . ."
We therefore hold that Pennsylvania's refusal to extend Medicaid coverage to nontherapeutic abortions is not inconsistent with Title XIX. [n14] We make clear, however, that the federal statute leaves a State free to provide such coverage if it so desires. [n15] [p448]
There is one feature of the Pennsylvania Medicaid program, not addressed by the Court of Appeals, that may conflict with Title XIX. Under the Pennsylvania program, financial assistance is not provided for medically necessary abortions unless two physicians in addition to the attending physician have examined the patient and have concurred in writing that the abortion is medically necessary. See n. 3, supra. On this record, we are unable to determine the precise role played by these two additional physicians, and consequently we are unable to ascertain whether this requirement interferes with the attending physician's medical judgment in a manner not contemplated by the Congress. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for consideration of this requirement.
It is so ordered.
1. Title XIX establishes two groups of needy persons: (1) the "categorically" needy, which includes needy persons with dependent children and the aged, blind, and disabled, 42 U.S.C. § 1396a(a)(10)(A) (1970 ed., Supp. V); and (2) the "medically" needy, which includes other needy persons, § 1396a(a)(10)(C) (1970 ed., Supp. V). Participating States are not required to extend Medicaid coverage to the "medically" needy, but Pennsylvania has chosen to do so.
2. The general categories of medical treatment enumerated are:
(1) inpatient hospital services (other than services in an institution for tuberculosis or mental diseases);
(2) outpatient hospital services;
(3) other laboratory and X-ray services;
(4)(A) skilled nursing facility services (other than services in an institution for tuberculosis or mental diseases) for individuals 21 years of age or older (B) effective July 1, 1969, such early and periodic screening and diagnosis of individuals who are eligible under the plan and are under the age of 21 to ascertain their physical or mental defects, and such health care, treatment, and other measures to correct or ameliorate defects and chronic conditions discovered thereby, as may be provided in regulations of the Secretary; and (C) family planning services and supplies furnished (directly or under arrangements with others) to individuals of childbearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies;
(5) physicians' services furnished by a physician (as defined in section 1395x(r)(1) of this title), whether furnished in the office, the patient's home, a hospital, or a skilled nursing facility, or elsewhere.
42 U.S.C. § 1396d(a) (1970 ed. and Supp. V). Participating States that elect to extend coverage to the "medically" needy, see n. 1, supra, have the option of providing somewhat different categories of medical services to those individuals. 42 U.S.C. § 1396a(a)(13)(C)(ii) (1970 ed., Supp. V).
3. An abortion is deemed medically necessary under the Pennsylvania 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 accredited by the Joint Commission on Accreditation of Hospitals.
Brief for Petitioners 4, citing 3 Pennsylvania Bulletin 2207, 2209 (Sept. 29, 1973).
In Doe v. Bolton, 410 U.S. 179, 192 (1973), this Court indicated that
[w]hether "an abortion is necessary" is a professional judgment that . . . 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.
We were informed during oral argument that the Pennsylvania definition of medical necessity is broad enough to encompass the factors specified in Bolton. Tr. of Oral Arg. 7-8.
The dissent of MR. JUSTICE BRENNAN emphasizes the "key" role of the physician within the Medicaid program, noting that "[t]he Medicaid statutes leave the decision as to the choice among pregnancy procedures exclusively with the doctor and his patient. . . ." Post at 449-450. This is precisely what Pennsylvania has done. Its regulations provide for the funding of abortions upon certification of medical necessity, a determination that the physician is authorized to make on the basis of all relevant factors.
4. The District Court was of the view that the regulation creates
an unlawful distinction between indigent women who choose to carry their pregnancies to birth, and indigent women who choose to terminate their pregnancies by abortion.
376 F.Supp. at 191. In Maher v. Roe, post, p. 464, we today conclude that the Equal Protection Clause of the Fourteenth Amendment does not prevent a State from making the policy choice to fund costs incident to childbirth without providing similar funding for costs incident to nontherapeutic abortions.
5. Petitioners appealed the District Court's declaratory judgment to the Court of Appeals. Respondents cross-appealed from the denial of declaratory relief with respect to the second and third trimesters of pregnancy. Since respondents did not seek review of the District Court's denial of injunctive relief, the Court of Appeals had jurisdiction over the appeals. Gerstein v. Coe, 417 U.S. 279 (1974).
6. As a result of the decision of the Court of Appeals, petitioners issued a Temporary Revised Policy on September 25, 1975. This interim policy allows financial assistance for abortions without regard to medical necessity. Brief for Petitioners 3 n. 3.
7. Two other Courts of Appeals have concluded that the federal statute does not require participating States to fund the cost of nontherapeutic abortions. Roe v. Norton, 522 F.2d 928 (CA2 1975); Roe v. Ferguson, 515 F.2d 279 (CA6 1975). See also, e.g., Doe v. Westby, 402 F.Supp. 140 (WDSD 1975) (three-judge court) (Title XIX requires funding of nontherapeutic abortions), appeal docketed, No. 75-813; Doe v. Stewart, Civ. No. 74-3197 (ED La., Jan. 26, 1976) (three-judge court) (Title XIX does not require funding of nontherapeutic abortions), appeal docketed, No. 75-6721.
8. Respondents concede that Title XIX "indicates that the states will have wide discretion in determining the extent of services to be provided." Brief for Respondents 9.
9. Respondents also contend that Pennsylvania's restriction on coverage is unreasonable within the meaning of Title XIX in that it interferes with the physician's professional judgment concerning appropriate treatment. With one possible exception addressed in Part III, infra, the Pennsylvania program does not interfere with the physician's medical judgment concerning his patient's needs. If a physician certifies that an abortion is medically necessary, see n. 3, supra, the medical expenses are covered under the Pennsylvania Medicaid program. If, however, the physician concludes that the abortion is not medically necessary, but indicates a willingness to perform the abortion at the patient's request, the expenses are not covered. The decision whether to fund the costs of the abortion thus depends solely on the physician's determination of medical necessity. Respondents point to nothing in the Pennsylvania Medicaid plan that indicates state interference with the physician's initial determination.
10. Respondents rely heavily on the fact that in amending Title XIX in 1972 to include "family planning services" within the five broad categories of required medical treatment, see n. 2, supra, Congress did not expressly exclude abortions as a covered service. Since Congress had expressly excluded abortions as a method of family planning services in prior legislation, see 42 U.S.C. § 300a-6, respondents conclude that the failure of Congress to exclude coverage of abortions in the 1972 amendments to Title XIX "strongly indicates" an intention to require coverage of abortions. This line of reasoning is flawed. The failure to exclude abortions from coverage indicates only that Congress intended to allow such coverage, not that such coverage is mandatory for nontherapeutic abortions.
11. The Court of Appeals concluded that Pennsylvania's regulations also violated the equality provisions of Title XIX requiring that an individual's medical assistance "shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual." 42 U.S.C. § 1396a(a)(10)(b) (1970 ed., Supp. V). See § 1396a(a)(10)(C) (1970 ed., Supp. V). According to the Court of Appeals, the Pennsylvania regulation "force[s] pregnant women to use the least voluntary method of treatment, while not imposing a similar requirement on other persons who qualify for aid." 523 F.2d 611, 619 (1975). We find the Pennsylvania regulation to be entirely consistent with the equality provisions of Title XIX. Pennsylvania has simply decided that there is reasonable justification for excluding from Medicaid coverage a particular medically unnecessary procedure -- nontherapeutic abortions.
12. At the time of our 1973 decision in Roe, some eight years after the enactment of Title XIX, at least 30 States had statutory prohibitions against nontherapeutic abortions. 410 U.S. 113, 118 n. 2 (1973).
13. Federal funds are made available only to those States whose Medicaid plans have been approved by the Secretary of HEW. 42 U.S.C. § 1396 (1970 ed., Supp. V).
14. Congress, by statute, has expressly prohibited the use during fiscal year 1977 of federal Medicaid funds for abortions except when the life of the mother would be endangered if the fetus were carried to term. Departments of Labor and Health, Education, and Welfare Appropriation Act, 1977, § 209, Pub.L. 94-439, 90 Stat. 1434.
15. Our dissenting Brothers, in this case and in Maher v. Roe, post, p. 482, express in vivid terms their anguish over the perceived impact of today's decisions on indigent pregnant women who prefer abortion to carrying the fetus to childbirth. We think our Brothers misconceive the issues before us, as well as the role of the judiciary.