|Poelker v. Doe
[ Brennan ]
Poelker v. Doe
CERTIORARI TO THE UNITED STATES COURT OF APPEAL FOR THE EIGHTH CIRCUIT
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR. JUSTICE BLACKMUN join, dissenting.
The Court holds that St. Louis may constitutionally refuse to permit the performance of elective abortions in its city-owned hospitals while providing hospital services to women who carry their pregnancies to term. As stated by the Court of Appeals:
Stripped of all rhetoric, the city here, through its policy and staffing procedure, is simply telling indigent women, like Doe, that, if they choose to carry their pregnancies to term, the city will provide physicians and medical facilities for full maternity care; but if they choose to exercise their constitutionally protected right to determine that they wish to terminate the pregnancy, the city will not provide physicians and facilities for the abortion procedure, even though it is probably safer than going through a full pregnancy and childbirth.
515 F.2d 541, 544 (1975) The Court of Appeals held that St. Louis could not in this way "interfer[e] in her decision of whether to bear a child or have an abortion simply because she is indigent and unable to afford private treatment," ibid., because it was constitutionally impermissible that indigent women be "‘subjected to State coercion to bear children which they do not wish to bear [while] no other women similarly situated are so coerced,'" id. at 545. [p523]
For the reasons set forth in my dissent in Maher v. Roe, ante, p. 482, I would affirm the Court of Appeals. Here the fundamental right of a woman freely to choose to terminate her pregnancy has been infringed by the city of St. Louis through a deliberate policy based on opposition to elective abortions on moral grounds by city officials. While it may still be possible for some indigent women to obtain abortions in clinics or private hospitals, it is clear that the city policy is a significant, and in some cases insurmountable, obstacle to indigent pregnant women who cannot pay for abortions in those private facilities. Nor is the closing of St. Louis' public hospitals an isolated instance with little practical significance. The importance of today's decision is greatly magnified by the fact that, during 1975 and the first quarter of 1976, only about 18% of all public hospitals in the country provided abortion services, and, in 10 States, there were no public hospitals providing such services. [n1]
A number of difficulties lie beneath the surface of the Court's holding. Public hospitals that do not permit the performance of elective abortions will frequently have physicians on their staffs who would willingly perform them. This may operate in some communities significantly to reduce the number of physicians who are both willing and able to perform abortions in a hospital setting. It is not a complete answer that many abortions may safely be performed in clinics, for some physicians will not be affiliated with those clinics, and some abortions may pose unacceptable risks if performed outside a hospital. Indeed, such an answer would be ironic, for if the result is to force some abortions to be performed in a clinic that properly should be performed in a hospital, the city policy will have operated to increase, rather than reduce, health risks associated with abortions; and in Roe v. Wade, [p524] 410 U.S. 113, 163 (1973), the Court permitted regulation by the State solely to protect maternal health.
The Court's holding will also pose difficulties in small communities where the public hospital is the only nearby health care facility. If such a public hospital is closed to abortions, any woman -- rich or poor -- will be seriously inconvenienced; and for some women -- particularly poor women -- the unavailability of abortions in the public hospital will be an insuperable obstacle. Indeed, a recent survey suggests that the decision in this case will be felt most strongly in rural areas, where the public hospital will, in all likelihood, be closed to elective abortions, and where there will not be sufficient demand to support a separate abortion clinic. [n2]
Because the city policy constitutes "coercion [of women] to bear children which they do not wish to bear," Roe v. Wade and the cases following it require that the city show a compelling state interest that justifies this infringement upon the fundamental right to choose to have an abortion. "[E]xpressing a preference for normal childbirth," ante at 521, does not satisfy that standard. Roe explicitly held that, during the first trimester, no state interest in regulating abortions was compelling, and that, during the second trimester, the State's interest was compelling only insofar as it protected maternal health. 410 U.S. at 162-164. Under Roe, the State's "important and legitimate interest in potential life," id. at [p525] 163 -- which I take to be another way of referring to a State's "preference for normal childbirth" -- becomes compelling only at the end of the second trimester. Thus, it is clear that St. Louis' policy preference is insufficient to justify its infringement on the right of women to choose to have abortions during the first two trimesters of pregnancy without interference by the State on the ground of moral opposition to abortions. St. Louis' policy therefore "unduly burdens the right to seek an abortion," Bellotti v. Baird, 428 U.S. 132, 147 (1976). I would affirm the Court of Appeals.
1. Sullivan, Tietze, & Dryfoos, Legal Abortion in the United States, 1975-1976, 9 Family Planning Perspective 116, 121, 128 (1977).
The concentration of services among relatively few providers -- mostly clinics -- in the nation's larger cities is clearly associated with the failure of hospitals -- especially the smaller hospitals that are the major health institutions in small cities and nonmetropolitan areas -- to offer abortions along with their other health services. Since public hospitals are even less likely than private hospitals to provide abortions, it is poor, rural and very young women who are most likely to be denied abortions as a result of the need to travel outside their own communities to obtain terminations. It is these women who are least likely to have the funds, the time, or the familiarity with the medical system that they need to be able to cope with the problems associated with such travel.