|Maher v. Roe
408 F.Supp. 660, reversed and remanded.
[ Powell ]
[ Burger ]
[ Brennan ]
Maher v. Roe
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR. JUSTICE BLACKMUN join, dissenting.
The District Court held:
When Connecticut refuses to fund elective abortions while funding therapeutic abortions and prenatal and postnatal care, it weights the choice of the pregnant mother against choosing to exercise her constitutionally protected right to an elective abortion. . . . Her choice is affected not simply by the absence of payment for the abortion, but by the availability of public funds for childbirth if she chooses not to have the abortion. When the state thus infringes upon a fundamental interest, it must assert a compelling state interest.
Roe v. Norton, 408 F.Supp.660, 663-664 (1975). This Court reverses on the ground that "the District Court misconceived the nature and scope of the fundamental right recognized in Roe [v. Wade, 410 U.S. 113 (1973)]," ante at 471, and therefore that Connecticut was not required to meet the "compelling interest" test to justify its discrimination against elective abortion, but only "the less demanding test of rationality that applies in the absence of . . . the impingement of a fundamental right," ante at 477, 478. This holding, the Court insists, "places no obstacles -- absolute or otherwise -- in the pregnant woman's path to an abortion"; she is still at liberty to finance the abortion from "private sources." Ante at 474. True,
the State may [by funding childbirth] have made childbirth a more attractive alternative, thereby influencing the woman's decision, but it has imposed no restriction on access to abortions that was not already there.
Ibid. True, also, indigency "may make it difficult -- and in some cases, [p483] perhaps impossible -- for some women to have abortions," but that regrettable consequence "is neither created nor in any way affected by the Connecticut regulation." Ibid.
But a distressing insensitivity to the plight of impoverished pregnant women is inherent in the Court's analysis. The stark reality for too many, not just "some," indigent pregnant women is that indigency makes access to competent licensed physicians not merely "difficult," but "impossible." 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. This disparity in funding by the State clearly operates to coerce indigent pregnant women to bear children they would not otherwise choose to have, and just as clearly, this coercion can only operate upon the poor, who are uniquely the victims of this form of financial pressure. Mr. Justice Frankfurter's words are apt:
To sanction such a ruthless consequence, inevitably resulting from a money hurdle erected by the State, would justify a latter-day Anatole France to add one more item to his ironic comments on the "majestic equality" of the law. "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." . . .
Griffin v. Illinois, 351 U.S. 12, 23 (1956) (concurring opinion).
None can take seriously the Court's assurance that its "conclusion signals no retreat from Roe [v. Wade] or the cases applying it," ante at 475. That statement must occasion great surprise among the Courts of Appeals and District Courts that, relying upon Roe v. Wade and Doe v. Bolton, 410 U.S. 179 (1973), have held that States are constitutionally required to fund elective abortions if they fund pregnancies carried to [p484] term. See Doe v. Rose, 499 F.2d 1112 (CA10 1974); Wulff v. Singleton, 508 F.2d 1211 (CA8 1974), rev'd and remanded on other grounds, 428 U.S. 106 (1976); Doe v. Westby, 383 F.Supp. 1143 (WDSD 1974), vacated and remanded (in light of Hagans v. Lavine, 415 U.S. 528 (1974)), 420 U.S. 968, on remand, 402 F.Supp. 140 (1975); Doe v. Wohlgemuth, 376 F.Supp. 173 (WD Pa.1974), aff'd on statutory grounds sub nom. Doe v. Beal, 523 F.2d 611 (CA3 1975), rev'd and remanded, ante, p. 438; Doe v. Rampton, 366 F.Supp. 189 (Utah 1973); Klein v. Nassau County Medical Center, 347 F.Supp. 496 (EDNY 1972), vacated and remanded (in light of Roe v. Wade and Doe v. Bolton, 412 U.S. 925 (1973)), on remand, 409 F.Supp. 731 (1976). Indeed, it cannot be gainsaid that today's decision seriously erodes the principles that Roe and Doe 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.
The Court's premise is that only an equal protection claim is presented here. Claims of interference with enjoyment of fundamental rights have, however, occupied a rather protean position in our constitutional jurisprudence. Whether or not the Court's analysis may reasonably proceed under the Equal Protection Clause, the Court plainly errs in ignoring, as it does, the unanswerable argument of appellees, and the holding of the District Court, that the regulation unconstitutionally impinges upon their claim of privacy derived from the Due Process Clause.
Roe v. Wade and cases following it hold that an area of privacy invulnerable to the State's intrusion surrounds the decision of a pregnant woman whether or not to carry her pregnancy to term. The Connecticut scheme clearly impinges upon that, area of privacy by bringing financial pressures on indigent women that force them to bear children they would not otherwise have. That is an obvious impairment of the [p485] fundamental right established by Roe v. Wade. Yet the Court concludes that "the Connecticut regulation does not impinge upon [that] fundamental right." Ante at 432 U.S. 474"]474. This conclusion is based on a perceived distinction, on the one hand, between the imposition of criminal penalties for the procurement of an abortion present in Roe v. Wade and Doe v. Bolton and the absolute prohibition present in 474. This conclusion is based on a perceived distinction, on the one hand, between the imposition of criminal penalties for the procurement of an abortion present in Roe v. Wade and Doe v. Bolton and the absolute prohibition present in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), and, on the other, the assertedly lesser inhibition imposed by the Connecticut scheme. Ante at 472-474.
The last time our Brother POWELL espoused the concept in an abortion case that
[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,
ante at 475, the Court refused to adopt it. Singleton v. Wulff, 428 U.S. 106, 122 (1976). This was made explicit in Part II of our Brother BLACKMUN's opinion for four of us, and is implicit in our Brother STEVENS' essential agreement with the analysis of Part II-B. Id. at 121-122 (concurring in part). Part II-B stated:
MR. JUSTICE POWELL would so limit Doe and the other cases cited, explaining them as cases in which the State "directly interfered with the abortion decision" and "directly interdicted the normal functioning of the physician-patient relationship by criminalizing certain procedures," [428 U.S.] at 128. There is no support in the language of the cited cases for this distinction. . . . Moreover, a "direct interference" or "interdiction" test does not appear to be supported by precedent. . . . 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. Furthermore, since the right . . . is not simply the right to have an abortion, but the right to have abortions nondiscriminatorily funded, [p486] the denial of such funding is as complete an "interdiction" of the exercise of the right as could ever exist.
Id. at 118 n. 7.
We have also rejected this approach in other abortion cases. Doe v. Bolton, the companion to Roe v. Wade, in addition to striking down the Georgia criminal prohibition against elective abortions, struck down the procedural requirements of certification of hospitals, of approval by a hospital committee, and of concurrence in the abortion decision by two doctors other than the woman's own doctor. None of these requirements operated as an absolute bar to elective abortions in the manner of the criminal prohibitions present in the other aspect of the case or in Roe, but this was not sufficient to save them from unconstitutionality. In Planned Parenthood, supra, we struck down a requirement for spousal consent to an elective abortion which the Court characterizes today simply as an "absolute obstacle" to a woman's obtaining an abortion. Ante at 473. But the obstacle was "absolute" only in the limited sense that a woman who was unable to persuade her spouse to agree to an elective abortion was prevented from obtaining one. Any woman whose husband agreed, or could be persuaded to agree, was free to obtain an abortion, and the State never imposed directly any prohibition of its own. This requirement was qualitatively different from the criminal statutes that the Court today says are comparable, but we nevertheless found it unconstitutional.
Most recently, also in a privacy case, the Court squarely reaffirmed that the right of privacy was fundamental, and that an infringement upon that right must be justified by a compelling state interest. Carey v. Population Services International, 431 U.S. 678 (1977). That case struck down in its entirety a New York law forbidding the sale of contraceptives to minors under 16 years old, limiting persons who could sell contraceptives to pharmacists, and forbidding advertisement [p487] and display of contraceptives. There was no New York law forbidding use of contraceptives by anyone, including minors under 16, and therefore no "absolute" prohibition against the exercise of the fundamental right. Nevertheless the statute was declared unconstitutional as a burden on the right to privacy. In words that apply fully to Connecticut's statute, and that could hardly be more explicit, Carey stated:
"Compelling" is, of course, the key word; where a decision as fundamental as that whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.
Id. at 686. Carey relied specifically upon Roe, Doe, and Planned Parenthood, and interpreted them in a way flatly inconsistent with the Court's interpretation today:
The significance of these cases is that they establish that the same test must be applied to state regulations that burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely.
431 U.S. at 688.
Finally, cases involving other fundamental rights also make clear that the Court's concept of what constitutes an impermissible infringement upon the fundamental right of a pregnant woman to choose to have an abortion makes new law. We have repeatedly found that infringements of fundamental rights are not limited to outright denials of those rights. First Amendment decisions have consistently held in a wide variety of contexts that the compelling state interest test is applicable not only to outright denials, but also to restraints that make exercise of those rights more difficult. See, e.g., Sherbert v. Verner, 374 U.S. 398 (1963) (free exercise of religion); NAACP v. Button, 371 U.S. 415 (1963) (freedom of expression and association), Linmark Associates v. Township of Willingboro, 431 U.S. 85 (1977) (freedom of expression). [p488] The compelling state interest test has been applied in voting cases, even where only relatively small infringements upon voting power, such as dilution of voting strength caused by malapportionment, have been involved. See, e.g., Reynolds v. Sims, 377 U.S. 533, 562, 566 (1964); Chapman v. Meier, 420 U.S. 1 (1975); Connor v. Finch, 431 U.S. 407 (1977). Similarly, cases involving the right to travel have consistently held that statutes penalizing the fundamental right to travel must pass muster under the compelling state interest test, irrespective of whether the statutes actually deter travel. Memorial Hospital v. Maricopa County, 415 U.S. 250, 257-258 (1974); Dunn v. Blumstein, 405 U.S. 330, 339-341 (1972); Shapiro v. Thompson, 394 U.S. 618 (1969). And indigents asserting a fundamental right of access to the courts have been excused payment of entry costs without being required first to show that their indigency was an absolute bar to access. Griffin v. Illinois, 351 U.S. 12 (1956); Douglas v. California, 372 U.S. 353 (1963); Boddie v. Connecticut, 401 U.S. 371 (1971).
Until today, I had not thought the nature of the fundamental right established in Roe was open to question, let alone susceptible of the interpretation advanced by the Court. The fact that the Connecticut scheme may not operate as an absolute bar preventing all indigent women from having abortions is not critical. What is critical is that the State has inhibited their fundamental right to make that choice free from state interference.
Nor does the manner in which Connecticut has burdened the right freely to choose to have an abortion save its Medicaid program. The Connecticut scheme cannot be distinguished from other grants and withholdings of financial benefits that we have held unconstitutionally burdened a fundamental right. Sherbert v. Verner, supra, struck down a South Carolina statute that denied unemployment compensation to a woman who, for religious reasons, could not [p489] work on Saturday, but that would have provided such compensation if her unemployment had stemmed from a number of other nonreligious causes. Even though there was no proof of indigency in that case, Sherbert held that "the pressure upon her to forgo [her religious] practice [was] unmistakable," 374 U.S. at 404, and therefore held that the effect was the same as a fine imposed for Saturday worship. Here, though the burden is upon the right to privacy derived from the Due Process Clause, and not upon freedom of religion under the Free Exercise Clause of the First Amendment, the governing principle is the same, for Connecticut grants and withholds financial benefits in a manner that discourages significantly the exercise of a fundamental constitutional right. Indeed, the case for application of the principle actually is stronger than in Verner, since appellees are all indigents, and therefore even more vulnerable to the financial pressure imposed by the Connecticut regulation.
Bellotti v. Baird, 428 U.S. 132, 147 (1976), held, and the Court today agrees, ante at 473, that a state requirement is unconstitutional if it "unduly burdens the right to seek an abortion." Connecticut has "unduly" burdened the fundamental right of pregnant women to be free to choose to have an abortion because the State has advanced no compelling state interest to justify its interference in that choice.
Although appellant does not argue it as justification, the Court concludes that the State's interest "in protecting the potential life of the fetus" suffices, ante at 478. [*] Since only the first trimester of pregnancy is involved in this case, that justification is totally foreclosed if the Court is not overruling [p490] the holding of Roe v. Wade that, "[w]ith respect to the State's important and legitimate interest in potential life, the ‘compelling' point is at viability," occurring at about the end of the second trimester. 410 U.S. at 163. The appellant also argues a further justification not relied upon by the Court, namely, that the State needs "to control the amount of its limited public funds which will be allocated to its public welfare budget." Brief for Appellant 22. The District Court correctly held, however, that the asserted interest was "wholly chimerical" because the "state's assertion that it saves money when it declines to pay the cost of a welfare mother's abortion is simply contrary to undisputed facts." 408 F.Supp. at 664.
Finally, the reasons that render the Connecticut regulation unconstitutional also render invalid, in my view, the requirement of a prior written certification by the woman's attending physician that the abortion is "medically necessary," and the requirement that the hospital submit a Request for Authorization of Professional Services including a "statement indicating the medical need for the abortion." Brief for Appellees 2-3. For the same reasons, I would also strike down the requirement for prior authorization of payment by the Connecticut Department of Social Services.
* The Court also suggests, ante at 478 n. 11, that a "State may have legitimate demographic concerns about its rate of population growth" which might justify a choice to favor live births over abortions. While it is conceivable that, under some circumstances this might be an appropriate factor to be considered as part of a State's "compelling" interest, no one contends that this is the case here, or indeed that Connecticut has any demographic concerns at all about the rate of its population growth.