Harris v. McRae (1980)

Harris v. McRae (1980)

448 U.S. 297

In 1965, Congress created the Medicaid program, as Title XIX of the Social Security Act, to provide federal financial assistance to states that chose to reimburse certain costs of medical treatment for indigent persons. Beginning in 1976, Congress passed various versions of the so-called Hyde Amendment (named for its sponsor in the House) that severely restricted the use of any federal funds to reimburse the cost of abortions under the program. Specifically, the amendment barred the use of federal funds to perform abortions except “where the life of the mother would be endangered if the fetus were carried to term” or “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.” Cora McRae, a pregnant Medicaid recipient, and other plaintiffs brought suit, attacking the Hyde Amendment as a violation of the right to privacy and on grounds that a participating state remained obligated, despite the restriction, to fund all medically necessary abortions. A federal district court rejected any such statutory obligation on the part of the states, but held the Hyde Amendment unconstitutional as an infringement of the plaintiffs’ right to privacy. Patricia Harris, secretary of the Department of Health and Human Services (formerly HEW), there-upon appealed.

Opinion of the Court: Stewart, Burger, Powell, Rehnquist, White.

Concurring opinion: White.

Dissenting opinions: Brennan, Blackmun, Marshall; Blackmun; Marshall; Stevens.

MR. JUSTICE STEWART delivered the opinion of the Court.

This case presents statutory and constitutional questions concerning the public funding of abortions under Title XIX of the Social Security Act, commonly known as the “Medicaid” Act, and recent annual appropriations acts containing the so-called “Hyde Amendment.” The statutory question is whether Title XIX requires a State that participates in the Medicaid program to fund the cost of medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment. The constitutional question, which arises only if Title XIX imposes no such requirement, is whether the Hyde Amendment, by denying public funding for certain medically necessary abortions, contravenes the liberty or equal protection guarantees of the Due Process Clause of the Fifth Amendment.…

It is well settled that if a case may be decided on either statutory or constitutional grounds, this Court, for sound jurisprudential reasons, will inquire first into the statutory question. This practice reflects the deeply rooted doctrine “that we ought not to pass on questions of constitutionality … unless such adjudication is unavoidable.” … Accordingly, we turn first to the question whether Title XIX requires a State that participates in the Medicaid program to continue to fund those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment. 

…The Medicaid program created by Title XIX is a cooperative endeavor in which the Federal Government provides financial assistance to participating States to aid them in furnishing health care to needy persons. Under this system of “cooperative federalism,” … if a State agrees to establish a Medicaid plan that satisfies the requirements of Title XIX, which include several mandatory categories of health services, the Federal Government agrees to pay a specified percentage of “the total amount expended … as medical assistance under the State plan.…” 42 U.S.C. § 1396b (a)(1). The cornerstone of Medicaid is financial contribution by both the Federal Government and the participating State. Nothing in Title XIX as originally enacted, or in its legislative history, suggests that Congress intended to require a participating State to assume the full costs of providing any health services in its Medicaid plan. Quite the contrary, the purpose of Congress in enacting Title XIX was to provide federal financial assistance for all legitimate state expenditures under an approved Medicaid plan.…

Since the Congress that enacted Title XIX did not intend a participating State to assume a unilateral funding obligation for any health service in an approved Medicaid plan, it follows that Title XIX does not require a participating State to include in its plan any services for which a subsequent Congress has withheld federal funding. Title XIX was designed as a cooperative program of shared financial responsibility, not as a device for the Federal Government to compel a State to provide services that Congress itself is unwilling to fund. Thus, if Congress chooses to withdraw federal funding for a particular service, a State is not obliged to continue to pay for that service as a condition of continued federal financial support of other services. This is not to say that Congress may not now depart from the original design of Title XIX under which the Federal Government shares the financial responsibility for expenses incurred under an approved Medicaid plan. It is only to say that, absent an indication of contrary legislative intent by a subsequent Congress, Title XIX does not obligate a participating State to pay for those medical services for which federal reimbursement is unavailable.… 

Having determined that Title XIX does not obligate a participating State to pay for those medically necessary abortions for which Congress has withheld federal funding, we must consider the constitutional validity of the Hyde Amendment.… 

We address first the appellees’ argument that the Hyde Amendment, by restricting the availability of certain medically necessary abortions under Medicaid, impinges on the “liberty” protected by the Due Process Clause as recognized in Roe v. Wade … and its progeny.… 

In Maher v. Roe [1977] … the Court was presented with the question whether the scope of personal constitutional freedom recognized in Roe v. Wade included an entitlement to Medicaid payments for abortions that are not medically necessary. At issue in Maher was a Connecticut welfare regulation under which Medicaid recipients received payments for medical services incident to childbirth, but not for medical services incident to nontherapeutic abortions.…

…The constitutional freedom recognized in Wade and its progeny, the Maher Court explained, did not prevent Connecticut from making “a value judgment favoring childbirth over abortion, and … implement[ing] that judgment by the allocation of public funds.” … As the Court elaborated: “The Connecticut regulation before us is different in kind from the laws invalidated in our previous abortions decisions. The Connecticut regulation places no obstacles—absolute or otherwise—in the pregnant woman’s path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut’s decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may 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. The indigency that may make it difficult—and in some cases, perhaps, impossible—for some women to have abortions is neither created nor in any way affected by the Connecticut regulation.” … 

…Thus, even though the Connecticut regulation favored childbirth over abortion by means of subsidization of one and not the other, the Court in Maher concluded that the regulation did not impinge on the constitutional freedom recognized in Wade because it imposed no governmental restriction on access to abortions. 

The Hyde Amendment, like the Connecticut welfare regulation at issue in Maher, places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest.…

… Regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, it simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. The reason why was explained in Maher: although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category. The financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. We are thus not persuaded that the Hyde Amendment impinges on the constitutionally protected freedom of choice recognized in Wade.*

Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom. To hold otherwise would mark a drastic change in our understanding of the Constitution. It cannot be that because government may not prohibit the use of contraceptives … or prevent parents from sending their child to a private school, … government, therefore, has an affirmative constitutional obligation to ensure that all persons have the financial resources to obtain contraceptives or send their children to private schools. To translate the limitation on governmental power implicit in the Due Process Clause into an affirmative funding obligation would require Congress to subsidize the medically necessary abortion of an indigent woman even if Congress had not enacted a Medicaid program to subsidize other medically necessary services. Nothing in the Due Process Clause supports such an extraordinary result. Whether freedom of choice that is constitutionally protected warrants federal subsidization is a question for Congress to answer, not a matter of constitutional entitlement. Accordingly, we conclude that the Hyde Amendment does not impinge on the due process liberty recognized in Wade.… 

The remaining question … is whether the Hyde Amendment is rationally related to a legitimate governmental objective. It is the Government’s position that the Hyde Amendment bears a rational relationship to its legitimate interest in protecting the potential life of the fetus. We agree.

… By subsidizing the medical expenses of indigent women who carry their pregnancies to term while not subsidizing the comparable expenses of women who undergo abortions (except those whose lives are threatened), Congress has established incentives that make childbirth a more attractive alternative than abortion for persons eligible for Medicaid. These incentives bear a direct relationship to the legitimate congressional interest in protecting potential life. Nor is it irrational that Congress has authorized federal reimbursement for medically necessary services generally, but not for certain medically necessary abortions. Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life. 

MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR. JUSTICE BLACKMUN join, dissenting.

Roe v. Wade held that the constitutional right to personal privacy encompasses a woman’s decision whether or not to terminate her pregnancy. Roe and its progeny established that the pregnant woman has a right to be free from state interference with her choice to have an abortion—a right which, at least prior to the end of the first trimester, absolutely prohibits any governmental regulation of that highly personal decision. The proposition for which these cases stand thus is not that the State is under an affirmative obligation to ensure access to abortions for all who may desire them; it is that the State must refrain from wielding its enormous power and influence in a manner that might burden the pregnant woman’s freedom to choose whether to have an abortion. The Hyde Amendment’s denial of public funds for medically necessary abortions plainly intrudes upon this constitutionally protected decision, for both by design and in effect it serves to coerce indigent pregnant women to bear children that they would otherwise elect not to have. 

When viewed in the context of the Medicaid program to which it is appended, it is obvious that the Hyde Amendment is nothing less than an attempt by Congress to circumvent the dictates of the Constitution and achieve indirectly what Roe v. Wade said it could not do directly.

… The Hyde Amendment is a transparent attempt by the Legislative Branch to impose the political majority’s judgment of the morally acceptable and socially desirable preference on a sensitive and intimate decision that the Constitution entrusts to the individual. Worse yet, the Hyde Amendment does not foist that majoritarian viewpoint with equal measure upon everyone in our Nation, rich and poor alike; rather, it imposes that viewpoint only upon that segment of our society which, because of its position of political powerlessness, is least able to defend its privacy rights from the encroachments of state-mandated morality. The instant legislation thus calls for more exacting judicial review than in most other cases. controversy, are simply two alternative medical methods of dealing with pregnancy.…’ ” Beal v. Doe … (BRENNAN, J., dissenting).… In every pregnancy, one of these two courses of treatment is medically necessary, and the poverty-stricken woman depends on the Medicaid Act to pay for the expenses associated with that procedure. But under the Hyde Amendment, the Government will fund only those procedures incidental to childbirth. By thus injecting coercive financial incentives favoring child-birth into a decision that is constitutionally guaranteed to be free from governmental intrusion, the Hyde Amendment deprives the indigent woman of her freedom to choose abortion over maternity, thereby impinging on the due process liberty right recognized in Roe v. Wade.

… What the Court fails to appreciate is that it is not simply the woman’s indigency that interferes with her freedom of choice, but the combination of her own poverty and the government’s unequal subsidization of abortion and childbirth.

… By funding all of the expenses associated with childbirth and none of the expenses incurred in terminating pregnancy, the government literally makes an offer that the indigent woman cannot afford to refuse. It matters not that in this instance the government has used the carrot rather than the stick. What is critical is the realization that as a practical matter, many poverty-stricken women will choose to carry their pregnancy to term simply because the government provides funds for the associated medical services, even though these same women would have chosen to have an abortion if the government had also paid for that option, or indeed if the government had stayed out of the picture altogether and had defrayed the costs of neither procedure. The fundamental flaw in the Court’s due process analysis, then, is its failure to acknowledge that the discriminatory distribution of the benefits of governmental largesse can discourage the exercise of fundamental liberties just as effectively as can an outright denial of those rights through criminal and regulatory sanctions.… 

MR. JUSTICE MARSHALL dissenting. 

… 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.… 

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.… 

The Hyde Amendment … distinguishes between medically necessary abortions and other medically necessary expenses. As I explained in Maher v. Roe, … such classifications must be assessed by weighing “ ‘the importance of the governmental benefits denied, the character of the class, and the asserted state interests.’ ” … Under that approach, the Hyde Amendment is clearly invalid. As in Maher, the governmental benefits at issue here are “of absolutely vital importance in the lives of the recipients.” …

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.… In my view, the fact that the burden of the Hyde Amendment fall exclusively on financially destitute women 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.” …

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.” … In Maher, the Court found a permissible state interest in encouraging normal childbirth.… 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.… 

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. 

MR. JUSTICE STEVENS dissenting. 

… The Court focuses exclusively on the “legitimate interest in protecting the potential life of the fetus.” … It concludes that since the Hyde amendments further that interest, the exclusion they create is rational and therefore constitutional. But it is misleading to speak of the Government’s legitimate interest in the fetus without reference to the context in which that interest was held to be legitimate. For Roe v. Wade squarely held that the States may not protect that interest when a conflict with the interest in a pregnant woman’s health exists. It is thus perfectly clear that neither the Federal Government nor the States may exclude a woman from medical benefits to which she would otherwise be entitled solely to further an interest in potential lite when a physician, “in appropriate medical judgment,” certifies that an abortion is necessary “for the preservation of the life or health of the mother.” Roe v. Wade … The Court totally fails to explain why this reasoning is not dispositive here.… 

Having decided to alleviate some of the hardships of poverty by providing necessary medical care, the Government must use neutral criteria in distributing benefits. It may not deny benefits to a financially and medically needy person simply because he is a Republican, a Catholic, or an Oriental—or because he has spoken against a program the Government has a legitimate interest in furthering. In sum, it may not create exceptions for the sole purpose of furthering a governmental interest that is constitutionally subordinate to the individual interest that the entire program was designed to protect.

* The appellees argue that the Hyde Amendment is unconstitutional because it “penalizes” the exercise of a woman’s choice to terminate a pregnancy by abortion.… This argument falls short of the mark. In Maher, the Court found only a “semantic difference” between the argument that Connecticut’s refusal to subsidize nontherapeutic abortions “unduly interfere[d]” with the exercise of the constitutional liberty recognized in Wade and the argument that it “penalized” the exercise of that liberty.… And, regardless of how the claim was characterized, the Maher Court rejected the argument that Connecticut’s refusal to subsidize protected conduct, without more, impinged on the constitutional freedom of choice. This reasoning is equally applicable in the present case. A substantial constitutional question would arise if Congress had attempted to withhold all Medicaid benefits from an otherwise eligible candidate simply because that candidate had exercised her constitutionally protected freedom to terminate her pregnancy by abortion. This would be analogous to Sherbert v. Verner [1963] … where this Court held that a State may not, consistent with the First and Fourteenth Amendments, withhold all unemployment compensation benefits from a claimant who would otherwise be eligible for such benefits but for the fact that she is unwilling to work one day per week on her Sabbath. But the Hyde Amendment, unlike the statute at issue in Sherbert, does not provide for such a broad disqualification from receipt of public benefits. Rather, the Hyde Amendment, like the Connecticut welfare provision at issue in Maher, represents simply a refusal to subsidize certain protected conduct. A refusal to fund protected activity, without more, cannot be equated with the imposition of a “penalty” on that activity.