|Harris v. McRae
491 F.Supp. 630, reversed and remanded.
[ Stewart ]
[ White ]
[ Brennan ]
[ Marshall ]
[ Blackmun ]
[ Stevens ]
Harris v. McRae
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
MR. JUSTICE MARSHALL, dissenting. [*]
Three years ago, in Maher v. Roe, 432 U.S. 464 (1977), the Court upheld a state program that excluded nontherapeutic abortions from a welfare program that generally subsidized the medical expenses incidental to pregnancy and childbirth. At that time, I expressed my fear
that the Court's decisions will be an invitation to public officials, already under extraordinary pressure from well-financed and carefully orchestrated lobbying campaigns, to approve more such restrictions
That fear has proved justified. Under the Hyde Amendment, federal funding is denied for abortions that are medically necessary and that are necessary to avert severe and permanent damage to the health of the mother. The Court's opinion studiously avoids recognizing the undeniable fact that, for women eligible for Medicaid -- poor women -- denial of a Medicaid-funded abortion is equivalent to denial of legal abortion altogether. By definition, these women do not have the money to pay for an abortion themselves. If abortion is medically necessary and a funded abortion is unavailable, they must resort to back-alley butchers, attempt to induce an abortion themselves by crude and dangerous methods, or suffer the serious medical consequences of attempting to carry the fetus to term. Because legal abortion is not a realistic option for such women, the predictable result of the Hyde Amendment will be a significant increase in the number of poor women who will die or suffer significant health damage because of an inability to procure necessary medical services.
The legislation before us is the product of an effort to deny to the poor the constitutional right recognized in Roe v. Wade, 410 U.S. 113 (1973), even though the cost may be serious and long-lasting health damage. As my Brother STEVENS has demonstrated, see post, p. 349 (dissenting opinion), the premise underlying the Hyde Amendment was repudiated in Roe v. Wade, where the Court made clear that the state interest in protecting fetal life cannot justify jeopardizing the life or health of the mother. The denial of Medicaid benefits to individuals who meet all the statutory criteria for eligibility, solely because the treatment that is medically necessary involves the exercise of the fundamental right to chose abortion, is a form of discrimination repugnant to the equal protection of the laws guaranteed by the Constitution. The Court's decision today marks a retreat from Roe v. Wade and represents a cruel blow to the most powerless members of our society. I dissent. [p339]
In its present form, the Hyde Amendment restricts federal funding for abortion to cases in which "the life of the mother would be endangered if the fetus were carried to term" and "for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported promptly to a law enforcement agency or public health service." See ante at 302. Federal funding is thus unavailable even when severe and long-lasting health damage to the mother is a virtual certainty. Nor are federal funds available when severe health damage, or even death, will result to the fetus if it is carried to term.
The record developed below reveals that the standards set forth in the Hyde Amendment exclude the majority of cases in which the medical profession would recommend abortion as medically necessary. Indeed, in States that have adopted a standard more restrictive than the "medically necessary" test of the Medicaid Act, the number of funded abortions has decreased by over 98%. App. 289.
The impact of the Hyde Amendment on indigent women falls into four major categories. First, the Hyde Amendment prohibits federal funding for abortions that are necessary in order to protect the health and sometimes the life of the mother. Numerous conditions -- such as cancer, rheumatic fever, diabetes, malnutrition, phlebitis, sickle cell anemia, and heart disease -- substantially increase the risks associated with pregnancy or are themselves aggravated by pregnancy. Such conditions may make an abortion medically necessary in the judgment of a physician, but cannot be funded under the Hyde Amendment. Further, the health risks of undergoing an abortion increase dramatically as pregnancy becomes more advanced. By the time a pregnancy has progressed to the point where a physician is able to certify that it endangers the life of the mother, it is in many cases too late to prevent her death, because abortion is no [p340] longer safe. There are also instances in which a woman's life will not be immediately threatened by carrying the pregnancy to term, but aggravation of another medical condition will significantly shorten her life expectancy. These cases as well are not fundable under the Hyde Amendment.
Second, federal funding is denied in cases in which severe mental disturbances will be created by unwanted pregnancies. The result of such psychological disturbances may be suicide, attempts at self-abortion, or child abuse. The Hyde Amendment makes no provision for funding in such cases.
Third, the Hyde Amendment denies funding for the majority of women whose pregnancies have been caused by rape or incest. The prerequisite of a report within 60 days serves to exclude those who are afraid of recounting what has happened or are in fear of unsympathetic treatment by the authorities. Such a requirement is, of course, especially burdensome for the indigent, who may be least likely to be aware that a rapid report to the authorities is indispensable in order for them to be able to obtain an abortion.
Finally, federal funding is unavailable in cases in which it is known that the fetus itself will be unable to survive. In a number of situations, it is possible to determine in advance that the fetus will suffer an early death if carried to term. The Hyde Amendment, purportedly designed to safeguard "the legitimate governmental objective of protecting potential life," ante at 325, excludes federal funding in such cases.
An optimistic estimate indicates that as many as 100 excess deaths may occur each year as a result of the Hyde Amendment. [n1] The record contains no estimate of the health damage that may occur to poor women, but it shows that it will be considerable. [n2] [p341]
The Court resolves the equal protection issue in this case through a relentlessly formalistic catechism. Adhering to its "two-tiered" approach to equal protection, the Court first decides that so-called strict scrutiny is not required because the Hyde Amendment does not violate the Due Process Clause and is not predicated on a constitutionally suspect classification. Therefore,
the validity of classification must be sustained unless "the classification rests on grounds wholly irrelevant to the achievement of [any legitimate governmental] objective."
Ante at 322 (bracketed material in original), quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961). Observing that previous cases have recognized "the legitimate governmental objective of protecting potential life," ante at 325, the Court concludes that the Hyde Amendment "establishe[s] incentives that make childbirth a more attractive alternative than abortion for persons eligible for Medicaid," ibid., and is therefore rationally related to that governmental interest.
I continue to believe that the rigid "two-tiered" approach is inappropriate, and that the Constitution requires a more exacting standard of review than mere rationality in cases such as this one. Further, in my judgment, the Hyde Amendment cannot pass constitutional muster even under the rational basis standard of review.
This case is perhaps the most dramatic illustration to date of the deficiencies in the Court's obsolete "two-tiered" approach to the Equal Protection Clause. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 98-110 (1973) (MARSHALL, J., dissenting); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 318-321 (1976) (MARSHALL, J., dissenting); Maher v. Roe, 432 U.S. at 457-458 (MARSHALL, J., dissenting); Vance v. Bradley, 440 U.S. 93, [p342] 113-115 (1979) (MARSHALL, J., dissenting). [n3] With all deference, I am unable to understand how the Court can afford the same level of scrutiny to the legislation involved here -- whose cruel impact falls exclusively on indigent pregnant women -- that it has given to legislation distinguishing opticians from ophthalmologists, or to other legislation that males distinctions between economic interests more than able to protect themselves in the political process. See ante at 326, citing Williamson v. Lee Optical Co., 348 U.S. 483 (1955). Heightened scrutiny of legislative classifications has always been designed to protect groups
saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.
San Antonio Independent School Dist. v. Rodriguez, supra at 28. [n4] And while it is now clear that traditional "strict scrutiny" is unavailable to protect the poor against classifications that disfavor them, Dandridge v. Williams, 397 U.S. 471 (1970), I do not believe that legislation that imposes a crushing burden on indigent women can be treated with the same deference given to legislation distinguishing among business interests. [p343]
The Hyde Amendment, of course, distinguishes between medically necessary abortions and other medically necessary expenses. [n5] As I explained in Maher v. Roe, supra, such classifications must be assessed by weighing "‘the importance of the governmental benefits denied, the character of the class, and the asserted state interests,'" id. at 458, quoting Massachusetts Bd. of Retirement v. Murgia, supra at 322. Under that approach, the Hyde Amendment is clearly invalid. [n6]
As in Maher, the governmental benefits at issue here are "of absolutely vital importance in the lives of the recipients." Maher v. Roe, supra at 458 (MARSHALL, J., dissenting). An indigent woman denied governmental funding for a medically necessary abortion is confronted with two grotesque choices. First, she may seek to obtain "an illegal abortion that poses a serious threat to her health and even her life." 432 U.S. at 458. Alternatively, she may attempt to bear the child, a course that may both significantly threaten her health and eliminate any chance she might have had "to control the direction of her own life," id. at 459.
The class burdened by the Hyde Amendment consists of indigent women, a substantial proportion of whom are members of minority races. As I observed in Maher, nonwhite women obtain abortions at nearly double the rate of whites, ibid. In my view, the fact that the burden of the Hyde Amendment falls exclusively on financially destitute women [p344] suggests
a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
United States v. Carolene Products Co., 304 U.S. 144, 153, n. 4 (1938). For this reason, I continue to believe that "a showing that state action has a devastating impact on the lives of minority racial groups must be relevant" for purposes of equal protection analysis. Jefferson v. Hackney, 406 U.S. 535, 575-576 (1972) (MARSHALL, J., dissenting) .
As I explained in Maher, the asserted state interest in protecting potential life is insufficient to "outweigh the deprivation or serious discouragement of a vital constitutional right of especial importance to poor and minority women." 432 U.S. at 461. In Maher, the Court found a permissible state interest in encouraging normal childbirth. Id. at 477-479. The governmental interest in the present case is substantially weaker than in Maher, for under the Hyde Amendment, funding is refused even in cases in which normal childbirth will not result: one can scarcely speak of "normal childbirth" in cases where the fetus will die shortly after birth, or in which the mother's life will be shortened or her health otherwise gravely impaired by the birth. Nevertheless, the Hyde Amendment denies funding even in such cases. In these circumstances, I am unable to see how even a minimally rational legislature could conclude that the interest in fetal life outweighs the brutal effect of the Hyde Amendment on indigent women. Moreover, both the legislation in Maher and the Hyde Amendment were designed to deprive poor and minority women of the constitutional right to choose abortion. That purpose is not constitutionally permitted under Roe v. Wade.
Although I would abandon the strict scrutiny/rational basis dichotomy in equal protection analysis, it is by no [p345] means necessary to reject that traditional approach to conclude, as I do, that the Hyde Amendment is a denial of equal protection. My Brother BRENNAN has demonstrated that the Amendment is unconstitutional because it impermissibly infringes upon the individual's constitutional right to decide whether to terminate a pregnancy. See ante at 332-334 (dissenting opinion). And as my Brother STEVENS demonstrates, see post at 350-352 (dissenting opinion), the Government's interest in protecting fetal life is not a legitimate one when it is in conflict with "the preservation of the life or health of the mother," Roe v. Wade, 410 U.S. at 165, and when the Government's effort to make serious health damage to the mother "a more attractive alternative than abortion," ante at 325, does not rationally promote the governmental interest in encouraging normal childbirth.
The Court treats this case as though it were controlled by Maher. To the contrary, this case is the mirror image of Maher. The result in Maher turned on the fact that the legislation there under consideration discouraged only nontherapeutic, or medically unnecessary, abortions. In the Court's view, denial of Medicaid funding for nontherapeutic abortions was not a denial of equal protection, because Medicaid funds were available only for medically necessary procedures. Thus the plaintiffs were seeking benefits which were not available to others similarly situated. I continue to believe that Maher was wrongly decided. But it is apparent that, while the plaintiffs in Maher were seeking a benefit not available to others similarly situated, appellees are protesting their exclusion from a benefit that is available to all others similarly situated. This, it need hardly be said, is a crucial difference for equal protection purposes.
Under Title XIX and the Hyde Amendment, funding is available for essentially all necessary medical treatment for the poor. Appellees have met the statutory requirements for eligibility, but they are excluded because the treatment that is medically necessary involves the exercise of a fundamental [p346] right, the right to choose an abortion. In short, these appellees have been deprived of a governmental benefit for which they are otherwise eligible, solely because they have attempted to exercise a constitutional right. The interest asserted by the Government, the protection of fetal life, has been declared constitutionally subordinate to appellees' interest in preserving their lives and health by obtaining medically necessary treatment. Roe v. Wade, supra. And finally, the purpose of the legislation was to discourage the exercise of the fundamental right. In such circumstances, the Hyde Amendment must be invalidated, because it does not meet even the rational basis standard of review.
The consequences of today's opinion -- consequences to which the Court seems oblivious -- are not difficult to predict. Pregnant women denied the funding necessary to procure abortions will be restricted to two alternatives. First, they can carry the fetus to term -- even though that route may result in severe injury or death to the mother, the fetus, or both. If that course appears intolerable, they can resort to self-induced abortions or attempt to obtain illegal abortions -- not because bearing a child would be inconvenient, but because it is necessary in order to protect their health. [n7] The result will not be to protect what the Court describes as "the legitimate governmental objective of protecting potential life," ante at 325, but to ensure the destruction of both fetal and maternal life. "There is another world ‘out there,' the existence of which the Court . . . either chooses to ignore or fears [p347] to recognize." Beal v. Doe, 432 U.S. at 463 (BLACKMUN, J., dissenting). In my view, it is only by blinding itself to that other world that the Court can reach the result it announces today.
Ultimately, the result reached today may be traced to the Court's unwillingness to apply the constraints of the Constitution to decisions involving the expenditure of governmental funds. In today's decision, as in Maher v. Roe, the Court suggests that a withholding of funding imposes no real obstacle to a woman deciding whether to exercise her constitutionally protected procreative choice, even though the Government is prepared to fund all other medically necessary expenses, including the expenses of childbirth. The Court perceives this result as simply a distinction between a "limitation on governmental power" and "an affirmative funding obligation." Ante at 318. For a poor person attempting to exercise her "right" to freedom of choice, the difference is imperceptible. As my Brother BRENNAN has shown, see ante at 332-334 (dissenting opinion), the differential distribution of incentives -- which the Court concedes is present here, see ante at 325 -- can have precisely the same effect as an outright prohibition. It is no more sufficient an answer here than it was in Roe v. Wade to say that "‘the appropriate forum'" for the resolution of sensitive policy choices is the legislature. See ante at 326, quoting Maher v. Roe at 479.
More than 35 years ago, Mr. Justice Jackson observed that the
task of translating the majestic generalities of the Bill of Rights . . . into concrete restraints on officials dealing with the problems of the twentieth century is one to disturb self-confidence.
West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 639 (1943). These constitutional principles, he observed for the Court,
grew in soil which also produced a philosophy that the individual['s] . . . liberty was attainable through mere absence of governmental restraints.
Ibid. Those principles must be
transplant[ed] . . . to a soil in which the laissez-faire concept or principle of noninterference [p348] has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls.
Id. at 640.
In this case, the Federal Government has taken upon itself the burden of financing practically all medically necessary expenditures. One category of medically necessary expenditure has been singled out for exclusion, and the sole basis for the exclusion is a premise repudiated for purposes of constitutional law in Roe v. Wade. The consequence is a devastating impact on the lives and health of poor women. I do not believe that a Constitution committed to the equal protection of the laws can tolerate this result. I dissent.
* [This opinion applies also to No. 79-4, Williams et al. v. Zbaraz et al., No. 79-5, Miller, Acting Director, Illinois Department of Public Aid, et al. v. Zbaraz et al., and No. 79-491, United States v. Zbaraz et al., post p. 358.]
1. See App. 294-296.
2. For example, the number of serious complications deriving from abortions was estimated to be about 100 times the number of deaths from abortions. See id. at 200.
3. A number of individual Justices have expressed discomfort with the two-tiered approach, and I am pleased to observe that its hold on the law may be waning. See Craig v. Boren, 429 U.S. 190, 210-211, and n. * (1976) (POWELL, J., concurring); id. at 211-212 (STEVENS, J., concurring); post at 352, n. 4 (STEVENS, J., dissenting). Further, the Court has adopted an "intermediate" level of scrutiny for a variety of classifications. See Trimble v. Gordon, 430 U.S. 762 (1977) (illegitimacy); Craig v. Boren, supra, (sex discrimination); Foley v. Connelie, 435 U.S. 291 (1978) (alienage). Cf. University of California Regents v. Bakke, 438 U.S. 265, 324 (1978) (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.) (affirmative action).
4. For this reason, the Court has on occasion suggested that classifications discriminating against the poor are subject to special scrutiny under the Fifth and Fourteenth Amendments. See McDonald v. Board of Election, 394 U.S. 802, 807 (1969); Harper v. Virginia Bd. of Elections, 383 U.S. 663, 668 (1966).
5. As my Brother STEVENS suggests, see post at 355, n. 8 (dissenting opinion), the denial of funding for those few medically necessary services that are excluded from the Medicaid program is based on a desire to conserve federal funds, not on a desire to penalize those who suffer the excluded disabilities.
6. In practical effect, my approach is not in this context dissimilar to that taken in Craig v. Boren, supra at 197, where the Court referred to an intermediate standard of review requiring that classifications "must serve important governmental objectives and must be substantially related to achievement of those objectives."
7. Of course, some poor women will attempt to raise the funds necessary to obtain a lawful abortion. A court recently found that those who were fortunate enough to do so had to resort to
not paying rent or utility bills, pawning household goods, diverting food and clothing money, or journeying to another state to obtain lower rates or fraudulently use a relative's insurance policy. . . . [S]ome patients were driven to theft.