U.S. Supreme Court Harris v. McRae, 448
U.S. 297 (1980) Harris v. McRae No. 79-1268 Argued April 21, 1980 Decided June 30, 1980 448
U.S. 297 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW
YORK Syllabus Title XIX of the Social Security Act established the Medicaid
program in 1965 to provide federal financial assistance to States
that choose to reimburse certain costs of medical treatment for
needy persons. Since 1976, versions of the so-called Hyde Amendment
have severely limited the use of any federal funds to reimburse the
cost of abortions under the Medicaid program. Actions were brought
in Federal District Court by appellees (including indigent pregnant
women, who sued on behalf of all women similarly situated, the New
York City Health and Hospitals Corp., which operates hospitals
providing abortion services, officers of the Women's Division of
the Board of Global Ministries of the United Methodist Church
(Women's Division), and the Women's Division itself), seeking to
enjoin enforcement of the Hyde Amendment on grounds that it
violates, inter alia, the Due Process Clause of the Fifth
Amendment and the Religion Clauses of the First Amendment, and
that, despite the Hyde Amendment, a participating State remains
obligated under Title XIX to fund all medically necessary
abortions. Ultimately, the District Court, granting injunctive
relief, held that the Hyde Amendment had substantively amended
Title XIX to relieve a State of any obligation to fund those
medically necessary abortions for which federal reimbursement is
unavailable, but that the Amendment violates the equal protection
component of the Fifth Amendment's Due Process Clause and the Free
Exercise Clause of the First Amendment. Held: 1. Title XIX does not require a participating State to pay for
those medically necessary abortions for which federal reimbursement
is unavailable under the Hyde Amendment. Pp. 448 U. S.
306 -311.

															(a) 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Title XIX as originally enacted or in its legislative history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. To the contrary, Congress' purpose in enacting Title
XIX was to provide federal financial Page 448 U. S. 298 assistance for all legitimate state expenditures under an
approved Medicaid plan. Pp. 448 U. S.
308 -309.

															(b) Nor does the Hyde Amendment's legislative history contain
any indication that Congress intended to shift the entire cost of
some medically necessary abortions to the participating States, but
rather suggests that Congress has always assumed that a
participating State would not be required to fund such abortions
once federal funding was withdrawn pursuant to the Hyde Amendment.
Pp. 448 U. S.
310 -311.

															2. The funding restrictions of the Hyde Amendment do not impinge
on the "liberty" protected by the Due Process Clause of the Fifth
Amendment held in Roe v. Wade, 410 U.
S. 113 , 410 U. S. 168 ,
to include the freedom of a woman to decide whether to terminate a
pregnancy. Pp. 448 U. S.
312 -318.

															(a) The Hyde Amendment 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. Cf. Maher v. Roe, 432 U.
S. 464 . P. 448 U. S.
315 .

															(b) 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,
supra, it 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.
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, and indigency falls within the latter
category. 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. Pp. 448 U. S.
316 -317.

															(c) 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. Pp. 448 U. S.
317 -318.

															3. Nor does the Hyde Amendment violate the Establishment Clause
of the First Amendment. The fact that the funding restrictions in
the Hyde Amendment may coincide with the religious tenets of the
Roman Page 448 U. S. 299 Catholic Church does not, without more, contravene that Clause.
Pp. 448 U. S.
319 -320

															4. Appellees lack standing to raise a challenge to the Hyde
Amendment under the Free Exercise Clause of the First Amendment.
The named appellees consisting of indigent pregnant women suing on
behalf of other women similarly situated lack such standing because
none alleged, much less proved, that she sought an abortion under
compulsion of religious belief. The named appellees consisting of
officers of the Women's Division, although they provided a detailed
description of their religious beliefs, failed to allege either
that they are or expect to be pregnant or that they are eligible to
receive Medicaid, and they therefore lacked the personal stake in
the controversy needed to confer standing to raise such a challenge
to the Hyde Amendment. And the Women's Division does not satisfy
the standing requirements for an organization to assert the rights
of its membership, since the asserted claim is one that required
participation of the individual members for a proper understanding
and resolution of their free exercise claims. Pp. 448 U. S.
320 -321.

															5. The Hyde Amendment does not violate the equal protection
component of the Due Process Clause of the Fifth Amendment. Pp. 448 U. S.
321 -326.

															(a) While the presumption of constitutional validity of a
statutory classification that does not itself impinge on a right or
liberty protected by the Constitution disappears if the
classification is predicated on criteria that are "suspect," the
Hyde Amendment is not predicated on a constitutionally suspect
classification. Maher v. Roe, supra. Although the impact
of the Amendment falls on the indigent, that fact does not itself
render the funding restrictions constitutionally invalid, for
poverty, standing alone, is not a suspect classification. Pp. 448 U. S.
322 -323.

															(b) Where, as here, Congress has neither invaded a substantive
constitutional right or freedom nor enacted legislation that
purposefully operates to the detriment of a suspect class, the only
requirement of equal protection is that congressional action be
rationally related to a legitimate governmental interest. The Hyde
Amendment satisfies that standard, since, by encouraging childbirth
except in the most urgent circumstances, it is rationally related
to the legitimate governmental objective of protecting potential
life. Pp. 448 U. S.
324 -326. 491 F.
Supp. 630 , reversed and remanded.

															STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined. WHITE,
J., filed a concurring opinion, post, p. 448 U. S. 327 .
BRENNAN, J., filed a dissenting opinion, in which MARSHALL and
BLACKMUN, JJ., joined, post, p. 448 U. S. 329 .
MARSHALL, Page 448 U. S. 300 J., post, p. 448 U. S. 337 ,
BLACKMUN, J., post, p. 448 U. S. 348 ,
and STEVENS, J., post, p. 448 U. S. 349 ,
filed dissenting opinions.

															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 Page 448 U. S. 301 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, or either of the Religion
Clauses of the First Amendment. I The Medicaid program was created in 1965, when Congress added
Title XIX to the Social Security Act, 79 Stat. 343, as amended, 42
U.S.C. § 1396 et seq. (1976 ed. and Supp. II), for the
purpose of providing federal financial assistance to States that
choose to reimburse certain costs of medical treatment for needy
persons. Although participation in the Medicaid program is entirely
optional, once a State elects to participate, it must comply with
the requirements of Title XIX.

															One such requirement is that a participating State agree to
provide financial assistance to the "categorically needy" [ Footnote 1 ] with respect to five
general areas of medical treatment: (1) inpatient hospital
services, (2) outpatient hospital services, (3) other laboratory
and X-ray services, (4) skilled nursing Page 448 U. S. 302 facilities services, periodic screening and diagnosis of
children, and family planning services, and (5) services of
physicians. 42 U.S.C. § 1396a(a)(13)(B), 1396d(a)(1)-(5). Although
a participating State need not

															"provide funding for all medical treatment falling within the
five general categories, [Title XIX] does require that [a] state
Medicaid pla[n] establish 'reasonable standards . . . for
determining . . . the extent of medical assistance under the plan
which . . . are consistent with the objectives of [Title XIXI.]' 42
U.S.C. § 1396a(a)(17)." Beal v. Doe, 432 U. S. 438 , 432 U. S.
441 .

															Since September, 1976, Congress has prohibited -- either by an
amendment to the annual appropriations bill for the Department of
Health, Education, and Welfare [ Footnote 2 ] or by a joint resolution -- the use of any
federal funds to reimburse the cost of abortions under the Medicaid
program except under certain specified circumstances. This funding
restriction is commonly known as the "Hyde Amendment," after its
original congressional sponsor, Representative Hyde. The current
version of the Hyde Amendment, applicable for fiscal year 1980,
provides:

															"[N]one of the funds provided by this joint resolution shall be
used to perform abortions except where the life of the mother would
be endangered if the fetus were carried to term; or except 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."

															Pub.L. 96-123, 109, 93 Stat. 926. See also Pub.L.
96-86, § 118, 93 Stat. 662. This version of the Hyde Amendment is
broader than that applicable for fiscal year 1977, which did not
include the "rape or incest" Page 448 U. S. 303 exception, Pub.L. 91 39, § 209, 90 Stat. 1434, but narrower than
that applicable for most of fiscal year 1978, [ Footnote 3 ] and all of fiscal year 1979, which had
an additional exception for "instances where severe and
long-lasting physical health damage to the mother would result if
the pregnancy were carried to term when so determined by two
physicians," Pub.L. 9205, § 101, 91 Stat. 1460; Pub.L. 95 480, §
210, 92 Stat. 1586. [ Footnote
4 ]

															On September 30, 1976, the day on which Congress enacted the
initial version of the Hyde Amendment, these consolidated cases
were filed in the District Court for the Eastern District of New
York. The plaintiffs -- Cora McRae, a New York Medicaid recipient
then in the first trimester of a pregnancy that she wished to
terminate, the New York City Health and Hospitals Corp., a public
benefit corporation that operates 16 hospitals, 12 of which provide
abortion services, and others -- sought to enjoin the enforcement
of the funding restriction on abortions. They alleged that the Hyde
Amendment violated the First, Fourth, Fifth, and Ninth Amendments
of the Constitution insofar as it limited the funding of abortions
to those necessary to save the life of the mother, while permitting
the funding of costs associated with childbirth. Although the sole
named defendant was the Secretary of Health, Education, and
Welfare, the District Court permitted Senators James L. Buckley and
Jesse A. Helms and Representative Henry J. Hyde to intervene as
defendants. [ Footnote 5 ] Page 448 U. S. 304 After a hearing, the District Court entered a preliminary
injunction prohibiting the Secretary from enforcing the Hyde
Amendment and requiring him to continue to provide federal
reimbursement for abortions under the standards applicable before
the funding restriction had been enacted. McRae v.
Mathews, 421 F.
Supp. 533 . Although stating that it had not expressly held that
the funding restriction was unconstitutional, since the preliminary
injunction was not its final judgment, the District Court noted
that such a holding was "implicit" in its decision granting the
injunction. The District Court also certified the McRae case as a class action on behalf of all pregnant or potentially
pregnant women in the State of New York eligible for Medicaid and
who decide to have an abortion within the first 24 weeks of
pregnancy, and of all authorized providers of abortion services to
such women. Id. at 543.

															The Secretary then brought an appeal to this Court. After
deciding Beal v. Doe, 432 U. S. 438 , and Maher v. Roe, 432 U. S. 464 , we
vacated the injunction of the District Court and remanded the case
for reconsideration in light of those decisions. Califano v.
McRae, 433 U.S. 916.

															On remand, the District Court permitted the intervention of
several additional plaintiffs, including (1) four individual
Medicaid recipients who wished to have abortions that allegedly
were medically necessary but did not qualify for federal funds
under the versions of the Hyde Amendment applicable in fiscal years
1977 and 1978, (2) several physicians who perform abortions for
Medicaid recipients, (3) the Women's Division of the Board of
Global Ministries of the United Methodist Church (Women's
Division), and (4) two individual officers of the Women's
Division.

															An amended complaint was then filed, challenging the various
versions of the Hyde Amendment on several grounds. At the outset,
the plaintiffs asserted that the District Court need not address
the constitutionality of the Hyde Amendment Page 448 U. S. 305 because, in their view, a participating State remains obligated
under Title XIX to fund all medically necessary abortions, even if
federal reimbursement is unavailable. With regard to the
constitutionality of the Hyde Amendment, the plaintiffs asserted,
among other things, that the funding restrictions violate the
Religion Clauses of the First Amendment and the Due Process Clause
of the Fifth Amendment.

															After a lengthy trial, which inquired into the medical reasons
for abortions and the diverse religious views on the subject,
[ Footnote 6 ] the District Court
filed an opinion and entered a judgment invalidating all versions
of the Hyde Amendment on constitutional grounds. [ Footnote 7 ] The District Court rejected the
plaintiffs' statutory argument, concluding that, even though Title
XIX would otherwise have required a participating State to fund
medically necessary abortions, the Hyde Amendment had substantively
amended Title XIX to relieve a State of that funding obligation.
Turning then to the constitutional issues, the District Court
concluded that the Hyde Amendment, though valid under the
Establishment Clause, [ Footnote
8 ] violates the equal protection component of the Fifth
Amendment's Due Process Clause and the Free Exercise Clause of the
First Amendment. With regard to the Fifth Amendment, the District
Court noted that, when an abortion is

															"medically necessary to safeguard the pregnant woman's health, .
. . the disentitlement to [M]edicaid assistance impinges directly
on the woman's right to decide, in consultation with her physician
and in reliance on his judgment, to terminate Page 448 U. S. 306 her pregnancy in order to preserve her health. [ Footnote 9 ]" McRae v. Califano, 491 F.
Supp. 630 , 737. The court concluded that the Hyde Amendment
violates the equal protection guarantee because, in its view, the
decision of Congress to fund medically necessary services generally
but only certain medically necessary abortions serves no legitimate
governmental interest. As to the Free Exercise Clause of the First
Amendment, the court held that, insofar as a woman's decision to
seek a medically necessary abortion may be a product of her
religious beliefs under certain Protestant and Jewish tenets, the
funding restrictions of the Hyde Amendment violate that
constitutional guarantee as well.

															Accordingly, the District Court ordered the Secretary to
"[c]ease to give effect" to the various versions of the Hyde
Amendment insofar as they forbid payments for medically necessary
abortions. It further directed the Secretary to "[c]ontinue to
authorize the expenditure of federal matching funds [for such
abortions]." App. 87. In addition, the court recertified the McRae case as a nationwide class action on behalf of all
pregnant and potentially pregnant women eligible for Medicaid who
wish to have medically necessary abortions, and of all authorized
providers of abortions for such women. [ Footnote 10 ]

															The Secretary then applied to this Court for a stay of the
judgment pending direct appeal of the District Court's decision. We
denied the stay, but noted probable jurisdiction of this appeal.
444 U.S. 1069. II It is well settled that, if a case may be decided on either
statutory or constitutional grounds, this Court, for sound Page 448 U. S. 307 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." Spector Motor Service, Inc.
v. McLaughlin, 323 U. S. 101 , 323 U. S. 105 .
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. If a
participating State is under such an obligation, the
constitutionality of the Hyde Amendment need not be drawn into
question in the present case, for the availability of medically
necessary abortions under Medicaid would continue, with the
participating State shouldering the total cost of funding such
abortions.

															The appellees assert that a participating State has an
independent funding obligation under Title XIX because (1) the Hyde
Amendment is, by its own terms, only a limitation on federal
reimbursement for certain medically necessary abortions, and (2)
Title XIX does not permit a participating State to exclude from its
Medicaid plan any medically necessary service solely on the basis
of diagnosis or condition, even if federal reimbursement is
unavailable for that service. [ Footnote 11 ] It is thus the appellees' view that the
effect of the Hyde Amendment is to withhold federal reimbursement
for certain medically necessary abortions, but not to relieve a
participating Page 448 U. S. 308 State of its duty under Title XIX to provide for such abortions
in its Medicaid plan.

															The District Court rejected this argument. It concluded that,
although Title XIX would otherwise have required a participating
State to include medically necessary abortions in its Medicaid
program, the Hyde Amendment substantively amended Title XIX so as
to relieve a State of that obligation. This construction of the
Hyde Amendment was said to find support in the decisions of two
Courts of Appeals, Preterm, Inc. v. Dukakis, 591 F.2d 121
(CA1 1979), and Zbaraz v. Quern, 596 F.2d 196 (CA7 1979),
and to be consistent with the understanding of the effect of the
Hyde Amendment by the Department of Health, Education, and Welfare
in the administration of the Medicaid program.

															We agree with the District Court, but for somewhat different
reasons. 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," King v. Smith, 392 U.
S. 309 , 392 U. S. 316 ,
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. See S.Rep. No. 404, 89th Cong., 1st Page 448 U. S. 309 Sess., pt. 1, pp. 885 (1965); H.R.Rep. No. 213, 89th Cong., 1st
Sess., 72-74 (1965).

															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. [ Footnote
12 ] 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. [ Footnote 13 ] Page 448 U. S. 310 Thus, by the normal operation of Title XIX, even if a State were
otherwise required to include medically necessary abortions in its
Medicaid plan, the withdrawal of federal funding under the Hyde
Amendment would operate to relieve the State of that obligation for
those abortions for which federal reimbursement is unavailable.
[ Footnote 14 ] The
legislative history of the Hyde Amendment contains no indication
whatsoever that Congress intended to shift the entire cost of such
services to the participating States. See Zbaraz v. Quern,
supra at 200 ("no one, whether supporting or opposing the Hyde
Amendment, ever suggested that state funding would be required").
Rather, the legislative history suggests that Congress has always
assumed that a participating State would not be required to fund
medically necessary abortions once federal funding was withdrawn
pursuant to the Hyde Amendment. [ Footnote 15 ] See Preterm, Inc. v. Dukakis, supra at 130 ("[t]he universal assumption in debate was that, if the
Amendment passed, there would be no requirement that states carry
on the service"). Accord, Zbaraz v. Quern, supra at 200; Hodgson v. Board of County Comm'rs, 614 F.2d 601, 612-613
(CA8 Page 448 U. S. 311 1980); Roe v. Casey, 623 F.2d 829, 834-837 (CA3 1980).
Accordingly, we conclude that Title XIX does not require a
participating State to pay for those medically necessary abortions
for which federal reimbursement is unavailable under the Hyde
Amendment. [ Footnote 16 ] III 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. The appellees
assert that the funding restrictions of the Hyde Amendment violate
several rights secured by the Constitution -- (1) the right of a
woman, implicit in the Due Process Clause of the Fifth Amendment,
to decide whether to terminate a pregnancy, (2) the prohibition
under the Establishment Clause of the First Amendment against any
"law respecting an establishment of religion," and (3) the right to
freedom of religion protected by the Free Exercise Clause of the
First Amendment. The appellees also contend that, quite apart from
substantive constitutional rights, the Hyde Amendment violates the
equal protection component of the Fifth Amendment. [ Footnote 17 ] Page 448 U. S. 312 It is well settled that, quite apart from the guarantee of equal
protection, if a law "impinges upon a fundamental right explicitly
or implicitly secured by the Constitution, [it] is presumptively
unconstitutional." Mobile v. Bolden, 446 U. S.
55 , 446 U. S. 76 (plurality opinion). Accordingly, before turning to the equal
protection issue in this case, we examine whether the Hyde
Amendment violates any substantive rights secured by the
Constitution. A 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, 410 U. S. 113 , and
its progeny.

															In the Wade case, this Court held unconstitutional a
Texas statute making it a crime to procure or attempt an abortion
except on medical advice for the purpose of saving the mother's
life. The constitutional underpinning of Wade was a
recognition that the "liberty" protected by the Due Process Clause
of the Fourteenth Amendment includes not only the freedoms
explicitly mentioned in the Bill of Rights, but also a freedom of
personal choice in certain matters of marriage and family life.
[ Footnote 18 ] This implicit
constitutional liberty, the Court in Wade held, includes
the freedom of a woman to decide whether to terminate a
pregnancy. Page 448 U. S. 313 But the Court in Wade also recognized that a State has
legitimate interests during a pregnancy in both ensuring the health
of the mother and protecting potential human life. These state
interests, which were found to be "separate and distinct" and to
"gro[w] in substantiality as the woman approaches term," id. at 410 U. S.
162 -163, pose a conflict with a woman's untrammeled
freedom of choice. In resolving this conflict, the Court held that,
before the end of the first trimester of pregnancy, neither state
interest is sufficiently substantial to justify any intrusion on
the woman's freedom of choice. In the second trimester, the state
interest in maternal health was found to be sufficiently
substantial to justify regulation reasonably related to that
concern. And at viability, usually in the third trimester, the
state interest in protecting the potential life of the fetus was
found to justify a criminal prohibition against abortions, except
where necessary for the preservation of the life or health of the
mother. Thus, inasmuch as the Texas criminal statute allowed
abortions only where necessary to save the life of the mother and
without regard to the stage of the pregnancy, the Court held in Wade that the statute violated the Due Process Clause of
the Fourteenth Amendment.

															In Maher v. Roe, 432 U. S. 464 , 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 District
Court held that the regulation violated the Equal Protection Clause
of the Fourteenth Amendment because the unequal subsidization of
childbirth and abortion impinged on the "fundamental right to
abortion" recognized in Wade and its progeny. Page 448 U. S. 314 It was the view of this Court that "the District Court
misconceived the nature and scope of the fundamental right
recognized in Roe. " 432 U.S. at 432 U. S. 471 .
The doctrine of Roe v. Wade, the Court held in Maher, "protects the woman from unduly burdensome
interference with her freedom to decide whether to terminate her
pregnancy," id. at 432 U. S.
473 -474, such as the severe criminal sanctions at issue
in Roe v. Wade, supra, or the absolute requirement of
spousal consent for an abortion challenged in Planned
Parenthood of Central Missouri v. Danforth, 428 U. S.
52 .

															But 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." 432 U.S. at 432 U. S. 474 . As the Court elaborated:

															"The Connecticut regulation before us is different in kind from
the laws invalidated in our previous abortion 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." Ibid. The Court in Maher noted that its description of the
doctrine recognized in Wade and its progeny signaled "no
retreat" from those decisions. In explaining why the
constitutional Page 448 U. S. 315 principle recognized in Wade and later cases --
protecting a woman's freedom of choice -- did not translate into a
constitutional obligation of Connecticut to subsidize abortions,
the Court cited the

															"basic difference between direct state interference with a
protected activity and state encouragement of an alternative
activity consonant with legislative policy. Constitutional concerns
are greatest when the State attempts to impose its will by force of
law; the State's power to encourage actions deemed to be in the
public interest is necessarily far broader."

															432 U.S. at 432 U. S.
475 -476 (footnote omitted). 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. The present case does differ factually from Maher insofar as that case involved a failure to fund
nontherapeutic abortions, whereas the Hyde Amendment withholds
funding of certain medically necessary abortions. Accordingly, the
appellees argue that, because the Hyde Amendment affects a
significant interest not present or asserted in Maher --
the interest of a woman in protecting her health during pregnancy
-- and because that interest lies at the core of the personal
constitutional freedom recognized in Wade, the present
case is constitutionally different from Maher. It is the
appellees' view that, to the extent that the Hyde Amendment
withholds funding for certain medically necessary abortions, it
clearly impinges on the constitutional principle recognized in Wade. Page 448 U. S. 316 It is evident that a woman's interest in protecting her health
was an important theme in Wade. In concluding that the
freedom of a woman to decide whether to terminate her pregnancy
falls within the personal liberty protected by the Due Process
Clause, the Court in Wade emphasized the fact that the
woman's decision carries with it significant personal health
implications -- both physical and psychological. 410 U.S. at 410 U. S. 153 .
In fact, although the Court in Wade recognized that the
state interest in protecting potential life becomes sufficiently
compelling in the period after fetal viability to justify an
absolute criminal prohibition of nontherapeutic abortions, the
Court held that, even after fetal viability, a State may not
prohibit abortions "necessary to preserve the life or health of the
mother." Id. at 410 U. S. 164 .
Because even the compelling interest of the State in protecting
potential life after fetal viability was held to be insufficient to
outweigh a woman's decision to protect her life or health, it could
be argued that the freedom of a woman to decide whether to
terminate her pregnancy for health reasons does, in fact, lie at
the core of the constitutional liberty identified in Wade. But, 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 Page 448 U. S. 317 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. [ Footnote 19 ]

															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 Page 448 U. S. 318 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, Griswold v.
Connecticut, 381 U. S. 479 , or
prevent parents from sending their child to a private school, Pierce v. Society of Sisters, 268 U.
S. 510 , 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. [ Footnote 20 ] 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. [ Footnote 21 ] B The appellees also argue that the Hyde Amendment contravenes
rights secured by the Religion Clauses of the First Page 448 U. S. 319 Amendment. It is the appellees' view that the Hyde Amendment
violates the Establishment Clause because it incorporates into law
the doctrines of the Roman Catholic Church concerning the
sinfulness of abortion and the time at which life commences.
Moreover, insofar as a woman's decision to seek a medically
necessary abortion may be a product of her religious beliefs under
certain Protestant and Jewish tenets, the appellees assert that the
funding limitations of the Hyde Amendment impinge on the freedom of
religion guaranteed by the Free Exercise Clause. 1 It is well settled that "a legislative enactment does not
contravene the Establishment Clause if it has a secular legislative
purpose, if its principal or primary effect neither advances nor
inhibits religion, and if it does not foster an excessive
governmental entanglement with religion." Committee for Public
Education v. Regan, 444 U. S. 646 , 444 U. S. 653 .
Applying this standard, the District Court properly concluded that
the Hyde Amendment does not run afoul of the Establishment Clause.
Although neither a State nor the Federal Government can
constitutionally "pass laws which aid one religion, aid all
religions, or prefer one religion over another," Everson v.
Board of Education, 330 U. S. 1 , 330 U. S. 15 , it
does not follow that a statute violates the Establishment Clause
because it "happens to coincide or harmonize with the tenets of
some or all religions." McGowan v. Maryland, 366 U.
S. 420 , 366 U. S. 442 .
That the Judaeo-Christian religions oppose stealing does not mean
that a State or the Federal Government may not, consistent with the
Establishment Clause, enact laws prohibiting larceny. Ibid. The Hyde Amendment, as the District Court noted, is
as much a reflection of "traditionalist" values towards abortion as
it is an embodiment of the views of any particular religion. 491 F.
Supp. at 741. See also Roe v. Wade, 410 U.S. at 410 U. S.
138 -141. In sum, we are convinced that the fact that the
funding restrictions in the Page 448 U. S. 320 Hyde Amendment may coincide with the religious tenets of the
Roman Catholic Church does not, without more, contravene the
Establishment Clause. 2 We need not address the merits of the appellees' arguments
concerning the Free Exercise Clause, because the appellees lack
standing to raise a free exercise challenge to the Hyde Amendment.
The named appellees fall into three categories: (1) the indigent
pregnant women who sued on behalf of other women similarly
situated, (2) the two officers of the Women's Division, and (3) the
Women's Division itself. [ Footnote 22 ] The named appellees in the first category
lack standing to challenge tie Hyde Amendment on free exercise
grounds because none alleged, much less proved, that she sought an
abortion under compulsion of religious belief. [ Footnote 23 ] See McGowan v. Maryland,
supra, at 366 U. S. 429 .
Although the named appellees in the second category did provide a
detailed description of their religious beliefs, they failed to
allege either that they are or expect to be pregnant or that they
are eligible to receive Medicaid. These named appellees, therefore,
lack the personal stake in the controversy needed to confer
standing to raise such a challenge to the Hyde Amendment. See
Warth v. Seldin, 422 U. S. 490 , 422 U. S.
498 -499.

															Finally, although the Women's Division alleged that its Page 448 U. S. 321 membership includes

															"pregnant Medicaid eligible women who, as a matter of religious
practice and in accordance with their conscientious beliefs, would
choose but are precluded or discouraged from obtaining abortions
reimbursed by Medicaid because of the Hyde Amendment,"

															the Women's Division does not satisfy the standing requirements
for an organization to assert the rights of its membership. One of
those requirements is that "neither the claim asserted nor the
relief requested requires the participation of individual members
in the lawsuit." Hunt v. Washington Apple Advertising
Comm'n, 432 U. S. 333 , 432 U. S. 343 .
Since

															"it is necessary in a free exercise case for one to show the
coercive effect of the enactment as it operates against him in the
practice of his religion," Abington School Dist. v. Schempp, 374 U.
S. 203 , 374 U. S. 223 ,
the claim asserted here is one that ordinarily requires individual
participation. [ Footnote 24 ]
In the present case, the Women's Division concedes that

															"the permissibility, advisability and/or necessity of abortion
according to circumstance is a matter about which there is
diversity of view within . . . our membership, and is a
determination which must be ultimately and absolutely entrusted to
the conscience of the individual before God."

															It is thus clear that the participation of individual members of
the Women's Division is essential to a proper understanding and
resolution of their free exercise claims. Accordingly, we conclude
that the Women's Division, along with the other named appellees,
lack standing to challenge the Hyde Amendment under the Free
Exercise Clause. C It remains to be determined whether the Hyde Amendment violates
the equal protection component of the Fifth Amendment. This
challenge is premised on the fact that, although Page 448 U. S. 322 federal reimbursement is available under Medicaid for medically
necessary services generally, the Hyde Amendment does not permit
federal reimbursement of all medically necessary abortions. The
District Court held, and the appellees argue here, that this
selective subsidization violates the constitutional guarantee of
equal protection

															The guarantee of equal protection under the Fifth Amendment is
not a source of substantive rights or liberties, [ Footnote 25 ] but rather a right to be free
from invidious discrimination in statutory classifications and
other governmental activity. It is well settled that where a
statutory classification does not itself impinge on a right or
liberty protected by the Constitution, the validity of
classification must be sustained unless "the classification rests
on grounds wholly irrelevant to the achievement of [any legitimate
governmental] objective." McGowan v. Maryland, 366 U.S. at 366 U. S. 425 .
This presumption of constitutional validity, however, disappears if
a statutory classification is predicated on criteria that are, in a
constitutional sense, "suspect," the principal example of which is
a classification based on race, e.g., Brown v. Board of
Education, 347 U. S. 483 . 1 For the reasons stated above, we have already concluded that the
Hyde Amendment violates no constitutionally protected substantive
rights. We now conclude as well that it is not predicated on a
constitutionally suspect classification. In reaching this
conclusion, we again draw guidance from the Court's decision in Maher v. Roe. As to whether the Connecticut Page 448 U. S. 323 welfare regulation providing funds for childbirth but not for
nontherapeutic abortions discriminated against a suspect class, the
Court in Maher observed:

															"An indigent woman desiring an abortion does not come within the
limited category of disadvantaged classes so recognized by our
cases. Nor does the fact that the impact of the regulation falls
upon those who cannot pay lead to a different conclusion. In a
sense, every denial of welfare to an indigent creates a wealth
classification as compared to nonindigents who are able to pay for
the desired goods or services. But this Court has never held that
financial need alone identifies a suspect class for purposes of
equal protection analysis."

															432 U.S. at 432 U. S.
470 -471, citing San Antonio Independent School Dist.
v. Rodriguez, 411 U. S. 1 , 411 U. S. 29 ; Dandridge v. Williams, 397 U. S. 471 .
Thus, the Court in Maher found no basis for concluding
that the Connecticut regulation was predicated on a suspect
classification.

															It is our view that the present case is indistinguishable from Maher in this respect. Here, as in Maher, the
principal impact of the Hyde Amendment falls on the indigent. But
that fact does not itself render the funding restriction
constitutionally invalid, for this Court has held repeatedly that
poverty, standing alone, is not a suspect classification. See,
e.g., James v. Valtierra, 402 U. S. 137 .
That Maher involved the refusal to fund nontherapeutic
abortions, whereas the present case involves the refusal to fund
medically necessary abortions, has no bearing on the factors that
render a classification "suspect" within the meaning of the
constitutional guarantee of equal protection. [ Footnote 26 ] Page 448 U. S. 324 2 The remaining question then 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.

															In Wade, the Court recognized that the State has an
"important and legitimate interest in protecting the potentiality
of human life." 410 U.S. at 410 U. S. 162 .
That interest was found to exist throughout a pregnancy, "grow[ing]
in substantiality as the woman approaches term." Id. at 410 U. S.
162 -163. See also Beal v. Doe, 432 U.S. at 432 U. S.
445 -446. Moreover, in Maher, the Court held
that Connecticut's decision to fund the costs associated with
childbirth but not those associated with nontherapeutic abortions
was a rational means of advancing the legitimate state interest in
protecting potential life by Page 448 U. S. 325 encouraging childbirth. 432 U.S. at 432 U. S.
478 -479. See also Poelker v. Doe, 432 U.
S. 519 , 432 U. S.
520 -521.

															It follows that the Hyde Amendment, by encouraging childbirth
except in the most urgent circumstances, is rationally related to
the legitimate governmental objective of protecting potential life.
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), [ Footnote
27 ] 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. [ Footnote 28 ] Abortion is inherently different from other
medical procedures, because no other procedure involves the
purposeful termination of a potential life.

															After conducting an extensive evidentiary hearing into issues
surrounding the public funding of abortions, the District Court
concluded that

															"[t]he interests of . . the federal government . . . in the
fetus and in preserving it are not sufficient, weighed in the
balance with the woman's threatened health, to justify withdrawing
medical assistance unless the Page 448 U. S. 326 woman consents . . . to carry the fetus to term."

															491 F. Supp. at 737. In making an independent appraisal of the
competing interests involved here, the District Court went beyond
the judicial function. Such decisions are entrusted under the
Constitution to Congress, not the courts. It is the role of the
courts only to ensure that congressional decisions comport with the
Constitution.

															Where, as here, the Congress has neither invaded a substantive
constitutional right or freedom nor enacted legislation that
purposefully operates to the detriment of a suspect class, the only
requirement of equal protection is that congressional action be
rationally related to a legitimate governmental interest. The Hyde
Amendment satisfies that standard. It is not the mission of this
Court or any other to decide whether the balance of competing
interests reflected in the Hyde Amendment is wise social policy. If
that were our mission, not every Justice who has subscribed to the
judgment of the Court today could have done so. But we cannot, in
the name of the Constitution, overturn duly enacted statutes simply
"because they may be unwise, improvident, or out of harmony with a
particular school of thought." Williamson v. Lee Optical
Co., 348 U. S. 483 , 348 U. S. 488 ,
quoted in Dandridge v. Williams, 397 U.S. at 397 U. S. 484 .
Rather,

															"when an issue involves policy choices as sensitive as those
implicated [here] . . . , the appropriate forum for their
resolution in a democracy is the legislature." Maher v. Roe, supra, at 432 U. S.
479 . IV For the reasons stated in this opinion, we hold that a State
that participates in the Medicaid program is not obligated under
Title XIX to continue to fund those medically necessary abortions
for which federal reimbursement is unavailable under the Hyde
Amendment. We further hold that the funding restrictions of the
Hyde Amendment violate neither the Fifth Amendment nor the
Establishment Clause of the First Amendment. It is also our view
that the appellees Page 448 U. S. 327 lack standing to raise a challenge to the Hyde Amendment under
the Free Exercise Clause of the First Amendment. Accordingly, the
judgment of the District Court is reversed, and the case is
remanded to that court for further proceedings consistent with this
opinion. It is so ordered. [ Footnote 1 ]

															The "categorically needy" include families with dependent
children eligible for public assistance under the Aid to Families
with Dependent Children program, 42 U.S.C. § 601 et seq., and the aged, blind, and disabled eligible for benefits under the
Supplemental Security Income program, 42 U.S.C. § 1381 et
seq. See 42 U.S.C. § 1396a(a)(10)(A). Title XIX also
permits a State to extend Medicaid benefits to other needy persons,
termed "medically needy." See 42 U.S.C. § 1396a(a)(10)(C).
If a State elects to include the medically needy in its Medicaid
plan, it has the option of providing somewhat different coverage
from that required for the categorically needy. See 42
U.S.C. § 1396a(a)(13)(C).

															[ Footnote 2 ]

															The Department of Health, Education, and Welfare was recently
reorganized and divided into the Department of Health and Human
Services and the Department of Education. The original designation
is retained for purposes of this opinion.

															[ Footnote 3 ]

															The appropriations for HEW during October and November, 1977,
the first two months of fiscal year 1978, were provided by joint
resolutions that continued in effect the version of the Hyde
Amendment applicable during fiscal year 1977. Pub.L. 95-130, 91
Stat. 1153; Pub.L. 95-165, 91 Stat. 1323.

															[ Footnote 4 ]

															In this opinion, the term "Hyde Amendment" is used generically
to refer to all three versions of the Hyde Amendment, except where
indicated otherwise.

															[ Footnote 5 ]

															Although the intervenor defendants are appellees in the
Secretary's direct appeal to this Court, see this Court's
Rule 10(4), the term "appellees" is used in this opinion to refer
only to the parties who were the plaintiffs in the District
Court.

															[ Footnote 6 ]

															The trial, which was conducted between August, 1977, and
September, 1978, produced a record containing more than 400
documentary and film exhibits and a transcript exceeding 5,000
pages.

															[ Footnote 7 ] McRae v. Califano, 491 F.
Supp. 630 .

															[ Footnote 8 ]

															The District Court found no Establishment Clause infirmity
because, in its view, the Hyde Amendment has a secular legislative
purpose, its principal effect neither advances nor inhibits
religion, and it does not foster an excessive governmental
entanglement with religion.

															[ Footnote 9 ]

															The District Court also apparently concluded that the Hyde
Amendment operates to the disadvantage of a "suspect class,"
namely, teenage women desiring medically necessary abortions. See n 26, infra. [ Footnote 10 ]

															Although the original class included only those pregnant women
in the first two trimesters of their pregnancy, the recertified
class included all pregnant women, regardless of the stage of their
pregnancy.

															[ Footnote 11 ]

															The appellees argue that their interpretation of Title XIX finds
support in Beal v. Doe, 432 U. S. 438 .
There the Court considered the question whether Title XIX permits a
participating State to exclude nontherapeutic abortions from its
Medicaid plan. Although concluding that Title XIX does not preclude
a State's refusal "to fund unnecessary -- though perhaps
desirable -- medical services," the Court observed that "serious
statutory questions might be presented if a state Medicaid plan
excluded necessary medical treatment from its coverage." Id. at 432 U. S.
444 -445 (emphasis in original). The Court in Beal, however, did not address the possible effect of the
Hyde Amendment upon the operation of Title XIX.

															[ Footnote 12 ]

															In Preterm, Inc. v. Dukakis, 591 F.2d 121, 132 (CA1
1979), the opinion of the court by Judge Coffin noted:

															"The Medicaid program is one of federal and state cooperation in
funding medical assistance; a complete withdrawal of the federal
prop in the system with the intent to drop the total cost of
providing the service upon the states, runs directly counter to the
basic structure of the program, and could seriously cripple a
state's attempts to provide other necessary medical services
embraced by its plan."

															(Footnote omitted.)

															[ Footnote 13 ]

															When subsequent Congresses have deviated from the original
structure of Title XIX by obligating a participating State to
assume the full costs of a service as a prerequisite for continued
federal funding of other services, they have always expressed their
intent to do so in unambiguous terms. See Zbaraz v. Quern, 596 F.2d 196, 200, n. 12 (CA7 1979).

															[ Footnote 14 ]

															Since Title XIX itself provides for variations in the required
coverage of state Medicaid plans depending on changes in the
availability of federal reimbursement, we need not inquire, as the
District Court did, whether the Hyde Amendment is a substantive
amendment to Title XIX. The present case is thus different from TVA v. Hill, 437 U. S. 153 , 437 U. S.
189 -193, where the issue was whether continued
appropriations for the Tellico Dam impliedly repealed the
substantive requirements of the Endangered Species Act prohibiting
the continued construction of the Dam because it threatened the
natural habitat of an endangered species.

															[ Footnote 15 ]

															Our conclusion that 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 is
corroborated by the fact that subsequent Congresses simply assumed
that the withdrawal of federal funding under the Hyde Amendment for
certain medically necessary abortions would relieve a participating
State of any obligation to provide for such services in its
Medicaid plan. See the cases cited in the text, supra. [ Footnote 16 ]

															A participating State is free, if it so chooses, to include in
its Medicaid plan those medically necessary abortions for which
federal reimbursement is unavailable. See Beal v. Doe, 432
U.S. at 432 U. S. 447 ; Preterm, Inc. v. Dukakis, supra at 134. We hold only that
a State need not include such abortions in its Medicaid plan.

															[ Footnote 17 ]

															The appellees also argue that the Hyde Amendment is
unconstitutionally vague insofar as physicians are unable to
understand or implement the exceptions in the Hyde Amendment under
which abortions are reimbursable. It is our conclusion, however,
that the Hyde Amendment is not void for vagueness, because (1) the
sanction provision in the Medicaid Act contains a clear scienter requirement under which good faith errors are not
penalized, see Colautti v. Franklin, 439 U.
S. 379 , 439 U. S. 395 ,
and (2), in any event, the exceptions in the Hyde Amendment

															"are set out in terms that the ordinary person exercising
ordinary common sense can sufficiently understand and comply with,
without sacrifice to the public interest." Broadrick v. Oklahoma, 413 U.
S. 601 , 413 U. S.
608 .

															[ Footnote 18 ]

															The Court in Wade observed that previous decisions of
this Court had recognized that the liberty protected by the Due
Process Clause

															"has some extension to activities relating to marriage, Loving v. Virginia, 388 U. S. 1 , 388 U. S.
12 (1967); procreation, Skinner v. Oklahoma, 316 U. S.
535 , 316 U. S. 541 -542 (1942);
contraception, Eisenstadt v. Baird , 405
U.S. [438,] 405 U. S. 453 -454, id. at 405 U. S. 460 , 405 U. S.
463 -465 (WHITE, J., concurring in result); family
relationships, Prince v. Massachusetts, 321 U. S.
158 , 321 U. S. 166 (1944); and
childrearing and education, Pierce v. Society of Sisters, 268 U. S.
510 , 268 U. S. 535 (1925); Meyer
v. Nebraska , [ 262 U.S.
390 , 262 U. S. 399 (1923)]."

															410 U.S. at 410 U. S.
152 -153.

															[ Footnote 19 ]

															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. See Memorial Hospital v.
Maricopa County, 415 U. S. 250 ; Shapiro v. Thompson, 394 U. S. 618 .
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. 432 U.S. at 432 U. S. 474 ,
n. 8. 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, 374 U.
S. 398 , 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.

															[ Footnote 20 ]

															As this Court in Maher observed:

															"The Constitution imposes no obligation on the [government] to
pay the pregnancy-related medical expenses of indigent women, or
indeed to pay any of the medical expenses of indigents."

															432 U.S. at 432 U. S.
469 .

															[ Footnote 21 ]

															Since the constitutional entitlement of a physician who
administers medical care to an indigent woman is no broader than
that of his patient, see Whalen v. Roe, 429 U.
S. 589 , 429 U. S. 604 ,
and n. 33, we also reject the appellees' claim that the funding
restrictions of the Hyde Amendment violate the due process rights
of the physician who advises a Medicaid recipient to obtain a
medically necessary abortion.

															[ Footnote 22 ]

															The remaining named appellees, including the individual
physicians and the New York City Health and Hospitals Corp., did
not attack the Hyde Amendment on the basis of the Free Exercise
Clause of the First Amendment.

															[ Footnote 23 ]

															These named appellees sued on behalf of the class of

															"women of all religious and nonreligious persuasions and beliefs
who have, in accordance with the teaching of their religion and/or
the dictates of their conscience, determined that an abortion is
necessary."

															But since we conclude below that the named appellees have not
established their own standing to sue, "[t]hey cannot represent a
class of whom they are not a part." Bailey v. Patterson, 369 U. S. 31 , 369 U. S. 32 -33. See also O'Shea v. Littleton, 414 U.
S. 488 , 414 U. S.
494 -495.

															[ Footnote 24 ]

															For example, in Board of Education v. Allen, 392 U. S. 236 , 392 U. S. 249 ,
the Court found no free exercise violation, since the plaintiffs
had "not contended that the [statute in question] in any way
coerce[d] them as individuals in the practice of their
religion." (Emphasis added.)

															[ Footnote 25 ]

															An exception to this statement is to be found in Reynolds v.
Sims, 377 U. S. 533 , and
its progeny. Although the Constitution of the United States does
not confer the right to vote in state elections, See Minor v.
Happersett , 21 Wall. 162, 88 U. S. 178 , Reynolds held that, if a State adopts an electoral system,
the Equal Protection Clause of the Fourteenth Amendment confers
upon a qualified voter a substantive right to participate in the
electoral process equally with other qualified voters. See,
e.g., Dunn v. Blumstein, 405 U. S. 330 , 405 U. S.
336 .

															[ Footnote 26 ]

															Although the matter is not free from doubt, the District Court
seems to have concluded that teenage women desiring medically
necessary abortions constitute a "suspect class" for purposes of
triggering a heightened level of equal protection scrutiny. In this
regard, the District Court observed that the Hyde Amendment

															"clearly operate[s] to the disadvantage of one suspect class,
that is to the disadvantage of the statutory class of adolescents
at a high risk of pregnancy . . . , and particularly those
seventeen and under."

															491 F. Supp. at 738. The "statutory" class to which the District
Court was referring is derived from the Adolescent Health Services
and Pregnancy Prevention and Care Act, 42 U.S.C. § 300a-21 et
seq. (1976 ed., Supp. II). It was apparently the view of the
District Court that, since statistics indicate that women under 21
years of age are disproportionately represented among those for
whom an abortion is medically necessary, the Hyde Amendment
invidiously discriminates against teenage women.

															But the Hyde Amendment is facially neutral as to age,
restricting funding for abortions for women of all ages. The
District Court erred, therefore, in relying solely on the disparate
impact of the Hyde Amendment in concluding that it discriminated on
the basis of age. The equal protection component of the Fifth
Amendment prohibits only purposeful discrimination, Washington
v. Davis, 426 U. S. 229 , and
when a facially neutral federal statute is challenged on equal
protection grounds, it is incumbent upon the challenger to prove
that Congress

															"selected or reaffirmed a particular course of action at least
in part 'because of,' not merely 'in spite of,' its adverse effects
upon an identifiable group." Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 , 442 U. S. 279 .
There is no evidence to support such a finding of intent in the
present case.

															[ Footnote 27 ]

															We address here the constitutionality of the most restrictive
version of the Hyde Amendment, namely, that applicable in fiscal
year 1976 under which federal funds were unavailable for abortions
"except where the life of the mother would be endangered if the
fetus were carried to term." Three versions of the Hyde Amendment
are at issue in this case. If the most restrictive version is
constitutionally valid, so too are the others.

															[ Footnote 28 ]

															In fact, abortion is not the only "medically necessary" service
for which federal funds under Medicaid are sometimes unavailable to
otherwise eligible claimants. See 42 U.S.C. §
1396d(a)(17)(B) (inpatient hospital care of patients between 21 and
65 in institutions for tuberculosis or mental disease not covered
by Title XIX).

															MR. JUSTICE WHITE, concurring.

															I join the Court's opinion and judgment with these additional
remarks. Roe v. Wade, 410 U. S. 113 (1973), held that, prior to viability of the fetus, the
governmental interest in potential life was insufficient to justify
overriding the due process right of a pregnant woman to terminate
her pregnancy by abortion. In the last trimester, however, the
State's interest in fetal life was deemed sufficiently strong to
warrant a ban on abortions, but only if continuing the pregnancy
did not threaten the life or health of the mother. In the latter
event, the State was required to respect the choice of the mother
to terminate the pregnancy and protect her health.

															Drawing upon Roe v. Wade and the cases that followed
it, MR. JUSTICE STEVENS' dissent extrapolates the general
proposition that the governmental interest in potential life may in
no event be pursued at the expense of the mother's health. It then
notes that, under the Hyde Amendment, Medicaid refuses to fund
abortions where carrying to term threatens maternal health but
finances other medically indicated procedures, including
childbirth. The dissent submits that the Hyde Amendment therefore
fails the first requirement imposed by the Fifth Amendment and
recognized by the Court's opinion today -- that the challenged
official action must serve a legitimate governmental goal, ante at 448 U. S.
324 .

															The argument has a certain internal logic, but it is not legally
sound. The constitutional right recognized in Roe v. Wade was the right to choose to undergo an abortion without coercive
interference by the government. As the Court Page 448 U. S. 328 points out, Roe v. Wade did not purport to adjudicate a
right to have abortions funded by the government, but only to be
free from unreasonable official interference with private choice.
At an appropriate stage in a pregnancy, for example, abortions
could be prohibited to implement the governmental interest in
potential life, but in no case to the damage of the health of the
mother, whose choice to suffer an abortion rather than risk her
health the government was forced to respect. Roe v. Wade thus dealt with the circumstances in which
the governmental interest in potential life would justify official
interference with the abortion choices of pregnant women. There is
no such calculus involved here. The Government does not seek to
interfere with or to impose any coercive restraint on the choice of
any woman to have an abortion. The woman's choice remains
unfettered, the Government is not attempting to use its interest in
life to justify a coercive restraint, and hence, in disbursing its
Medicaid funds, it is free to implement rationally what Roe v.
Wade recognized to be its legitimate interest in a potential
life by covering the medical costs of childbirth but denying funds
for abortions. Neither Roe v. Wade nor any of the cases
decided in its wake invalidates this legislative preference. We
decided as much in Maher v. Roe, 432 U.
S. 464 (1977), when we rejected the claims that refusing
funds for nontherapeutic abortions while defraying the medical
costs of childbirth, although not an outright prohibition,
nevertheless infringed the fundamental right to choose to terminate
a pregnancy by abortion and also violated the equal protection
component of the Fifth Amendment. I would not abandon Maher and extend Roe v. Wade to forbid the
legislative policy expressed in the Hyde Amendment

															Nor can Maher be successfully distinguished on the
ground that it involved only nontherapeutic abortions that the
Government was free to place outside the ambit of its Medicaid
program. That is not the ground on which Maher proceeded. Page 448 U. S. 329 Maher held that the government need not fund elective
abortions, because withholding funds rationally furthered the
State's legitimate interest in normal childbirth. We sustained this
policy even though, under Roe v. Wade, the government's
interest in fetal life is an inadequate justification for coercive
interference with the pregnant woman's right to choose an abortion,
whether or not such a procedure is medically indicated. We have
already held, therefore, that the interest balancing involved in Roe v. Wade is not controlling in resolving the present
constitutional issue. Accordingly, I am satisfied that the
straightforward analysis followed in MR. JUSTICE STEWART's opinion
for the Court is sound.

															MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR.
JUSTICE BLACKMUN join, dissenting. * I agree entirely with my Brother STEVENS that the State's
interest in protecting the potential life of the fetus cannot
justify the exclusion of financially and medically needy women from
the benefits to which they would otherwise be entitled solely
because the treatment that a doctor has concluded is medically
necessary involves an abortion. See post at 448 U. S.
351 -352. I write separately to express my continuing
disagreement [ Footnote 2/1 ] with
the Court's mischaracterization of the nature of the fundamental
right recognized in Roe v. Wade, 410 U.
S. 113 (1973), and its misconception of the manner in
which that right is infringed by federal and state legislation
withdrawing all funding for medically necessary abortions. Roe v. Wade held that the constitutional right to
personal privacy encompasses a woman's decision whether or not
to Page 448 U. S. 330 terminate her pregnancy. Roe and its progeny [ Footnote 2/2 ] 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. [ Footnote 2/3 ] 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.
[ Footnote 2/4 ] Page 448 U. S. 331 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. [ Footnote
2/5 ] Under Title XIX of the Social Security Act, the Federal
Government reimburses participating States for virtually all
medically necessary services it provides to the categorically
needy. The sole limitation of any significance is the Hyde
Amendment's prohibition against the use of any federal funds to pay
for the Page 448 U. S. 332 costs of abortions (except where the life of the mother would be
endangered if the fetus were carried to term). As my Brother
STEVENS persuasively demonstrates, exclusion of medically necessary
abortions from Medicaid coverage cannot be justified as a
cost-saving device. Rather, 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.

															"When elected leaders cower before public pressure, this Court,
more than ever, must not shirk its duty to enforce the Constitution
for the benefit of the poor and powerless." Beal v. Doe, 432 U. S. 438 , 432 U.S. 462 (1977)
(MARSHALL, J., dissenting). Though it may not be this Court's
mission "to decide whether the balance of competing interests
reflected in the Hyde Amendment is wise social policy," ante at 448 U. S. 326 ,
it most assuredly is our responsibility to vindicate the pregnant
woman's constitutional right to decide whether to bear children
free from governmental intrusion.

															Moreover, it is clear that the Hyde Amendment not only was
designed to inhibit, but does in fact inhibit, the woman's freedom
to choose abortion over childbirth.

															"Pregnancy is unquestionably a condition requiring medical
services. . . . Treatment for the condition may involve medical
procedures for its termination, or medical procedures to bring the
pregnancy to term, resulting in a live birth."

															"[A]bortion and childbirth, when stripped of the sensitive moral
arguments surrounding the abortion controversy, are simply two
alternative Page 448 U. S. 333 medical methods of dealing with pregnancy. . . ." Beal v. Doe, supra at 432 U. S. 449 (BRENNAN, J., dissenting) (quoting Roe v.
Norton, 408 F.
Supp. 660 , 663, n. 3 (Conn.1975)). 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 childbirth 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. The Court's contrary conclusion is premised on its belief
that

															"[t]he 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." Ante at 448 U. S. 316 .
Accurate as this statement may be, it reveals only half the
picture. For 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.

															A poor woman in the early stages of pregnancy confronts two
alternatives: she may elect either to carry the fetus to term or to
have an abortion. In the abstract, of course, this choice is hers
alone, and the Court rightly observes that the Hyde Amendment
"places no governmental obstacle in the path of a woman who chooses
to terminate her pregnancy." Ante at 448 U. S. 315 .
But the reality of the situation is that the Hyde Amendment has
effectively removed this choice from the indigent woman's hands. By
funding all of the expenses associated with childbirth and none of
the expenses incurred in terminating pregnancy, the Government
literally makes an Page 448 U. S. 334 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. Implicit in the Court's reasoning is the notion that, as
long as the Government is not obligated to provide its citizens
with certain benefits or privileges, it may condition the grant of
such benefits on the recipient's relinquishment of his
constitutional rights.

															It would belabor the obvious to expound at any great length on
the illegitimacy of a state policy that interferes with the
exercise of fundamental rights through the selective bestowal of
governmental favors. It suffices to note that we have heretofore
never hesitated to invalidate any scheme of granting or withholding
financial benefits that incidentally or intentionally burdens one
manner of exercising a constitutionally protected choice. To take
but one example of many, Sherbert v. Verner, 374 U.
S. 398 (1963), involved a South Carolina unemployment
insurance statute that required recipients to accept suitable
employment when offered, even if the grounds for refusal stemmed
from religious convictions. Even though the recipients possessed no
entitlement to compensation, the Court held that the State could
not cancel the Page 448 U. S. 335 benefits of a Seventh-Day Adventist who had refused a job
requiring her to work on Saturdays. The Court's explanation is
particularly instructive for the present case:

															"Here not only is it apparent that appellant's declared
ineligibility for benefits derives solely from the practice of her
religion, but the pressure upon her to forego that practice is
unmistakable. The ruling forces her to choose between following the
precepts of her religion and forfeiting benefits, on the one hand,
and abandoning one of the precepts of her religion in order to
accept work, on the other hand. Governmental imposition of such a
choice puts the same kind of burden upon the free exercise of
religion as would a fine imposed against appellant for her Saturday
worship."

															"Nor may the South Carolina court's construction of the statute
be saved from constitutional infirmity on the ground that
unemployment compensation benefits are not appellant's 'right,' but
merely a 'privilege.' It is too late in the day to doubt that the
liberties of religion and expression may be infringed by the denial
of or placing of conditions upon a benefit or privilege. . . . [T]o
condition the availability of benefits upon this appellant's
willingness to violate a cardinal principle of her religious faith
effectively penalizes the free exercise of her constitutional
liberties." Id. at 374 U. S.
404 -406. See also Frost & Frost Trucking Co. v.
Railroad Comm'n, 271 U. S. 583 (1926); Speiser v. Randall, 357 U.
S. 513 (1958); Elfbrandt v. Russell, 384 U. S. 11 (1966); Goldberg v. Kelly, 397 U.
S. 254 (1970); United States Dept. of Agriculture v.
Moreno, 413 U. S. 528 (1973); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975). Cf. Shapiro v. Thompson, 394 U.
S. 618 (1969); Memorial Hospital v. Maricopa
County, 415 U. S. 250 (1974).

															The Medicaid program cannot be distinguished from these other
statutory schemes that unconstitutionally burdened Page 448 U. S. 336 fundamental rights. [ Footnote
2/6 ] Here, as in Sherbert, the government withholds
financial benefits in a manner that discourages the exercise of a
due process liberty: the indigent woman who chooses to assert her
constitutional right to have an abortion can do so only on pain of
sacrificing health care benefits to which she would otherwise be
entitled. Over 50 years ago, Mr. Justice Sutherland, writing for
the Court in Frost & Frost Trucking Co. v. Railroad Comm'n,
supra at 271 U. S.
593 -594, made the following observation, which is as
true now as it was then:

															"It would be a palpable incongruity to strike down an act of
state legislation which, by words of express divestment, seeks to
strip the citizen of rights guaranteed by the federal Constitution,
but to uphold an act by Page 448 U. S. 337 which the same result is accomplished under the guise of a
surrender of a right in exchange for a valuable privilege which the
state threatens otherwise to withhold. It is not necessary to
challenge the proposition that, as a general rule, the state,
having power to deny a privilege altogether, may grant it upon such
conditions as it sees fit to impose. But the power of the state in
that respect is not unlimited; and one of the limitations is that
it may not impose conditions which require the relinquishment of
constitutional rights. If the state may compel the surrender of one
constitutional right as a condition of its favor it may, in like
manner, compel a surrender of all. It is inconceivable that
guaranties embedded in the Constitution of the United States may
thus be manipulated out of existence."

															I respectfully 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. 448 U. S.
358 .]

															[ Footnote 2/1 ] See Maher v. Roe, 432 U. S. 464 , 432 U. S.
482 -490 (1977) (BRENNAN, J., dissenting) .

															[ Footnote 2/2 ] E.g., Doe v. Bolton, 410 U. S. 179 (1973); Planned Parenthood of Central Missouri v.
Danforth, 428 U. S. 52 (1976); Singleton v. Wulff, 428 U.
S. 106 (1976); Bellotti v. Baird, 443 U.
S. 622 (1979); cf. Carey v. Population Services
International, 431 U. S. 678 (1977).

															[ Footnote 2/3 ]

															After the first trimester, the State, in promoting its interest
in the mother's health, may regulate the abortion procedure in ways
that are reasonably related to that end. And even after the point
of viability is reached, state regulation in furtherance of its
interest in the potentiality of human life may not go so far as to
proscribe abortions that are necessary to preserve the life or
health of the mother. See Roe v. Wade, 410 U.
S. 113 , 410 U. S.
164 -165 (1973).

															[ Footnote 2/4 ]

															My focus throughout this opinion is upon the coercive impact of
the congressional decision to fund one outcome of pregnancy --
childbirth -- while not funding the other -- abortion. Because I
believe this alone renders the Hyde Amendment unconstitutional, I
do not dwell upon the other disparities that the Amendment produces
in the treatment of rich and poor, pregnant and nonpregnant. I
concur completely, however, in my Brother STEVENS' discussion of
those disparities. Specifically, I agree that the congressional
decision to fund all medically necessary procedures except for
those that require an abortion is entirely irrational either as a
means of allocating health care resources or otherwise serving
legitimate social welfare goals. And that irrationality, in turn,
exposes the Amendment for what it really is -- a deliberate effort
to discourage the exercise of a constitutionally protected
right.

															It is important to put this congressional decision in human
terms. Nonpregnant women may be reimbursed for all medically
necessary treatments. Pregnant women with analogous ailments,
however, will be reimbursed only if the treatment involved does not
happen to include an abortion. Since the refusal to fund will in
some significant number of cases force the patient to forgo medical
assistance, the result is to refuse treatment for some genuine
maladies not because they need not be treated, cannot be treated,
or are too expensive to treat, and not because they relate to a
deliberate choice to abort a pregnancy, but merely because treating
them would, as a practical matter, require termination of that
pregnancy. Even were one of the view that legislative hostility to
abortions could justify a decision to fund obstetrics and child
delivery services while refusing to fund nontherapeutic abortions,
the present statutory scheme could not be saved. For here, that
hostility has gone a good deal farther. Its consequence is to leave
indigent sick women without treatment simply because of the medical
fortuity that their illness cannot be treated unless their
pregnancy is terminated. Antipathy to abortion, in short, has been
permitted not only to ride roughshod over a woman's constitutional
right to terminate her pregnancy in the fashion she chooses, but
also to distort our Nation's health care programs. As a means of
delivering health services, then, the Hyde Amendment is completely
irrational. As a means of preventing abortions, it is concededly
rational -- brutally so. But this latter goal is constitutionally
forbidden.

															[ Footnote 2/5 ] Cf. Singleton v. Wulff, supra at 428 U. S.
118 -119, n. 7:

															"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."

															[ Footnote 2/6 ]

															The Court rather summarily rejects the argument that the Hyde
Amendment unconstitutionally penalizes the woman's exercise of her
right to choose an abortion with the comment that "[a] refusal to
fund protected activity, without more, cannot be equated with the
imposition of a penalty' on that activity." Ante at 448 U. S. 317 ,
n.19. To begin with, the Court overlooks the fact that there is
"more" than a simple refusal to fund a protected activity in this
case; instead, there is a program that selectively funds but one of
two choices of a constitutionally protected decision, thereby
penalizing the election of the disfavored option. Moreover, it is no answer to assert that no "penalty" is being
imposed because the State is only refusing to pay for the specific
costs of the protected activity, rather than withholding other
Medicaid benefits to which the recipient would be entitled or
taking some other action more readily characterized as "punitive."
Surely the Government could not provide free transportation to the
polling booths only for those citizens who vote for Democratic
candidates, even though the failure to provide the same benefit to
Republicans "represents simply a refusal to subsidize certain
protected conduct," ibid., and does not involve the denial
of any other governmental benefits. Whether the State withholds
only the special costs of a disfavored option or penalizes the
individual more broadly for the manner in which she exercises her
choice, it cannot interfere with a constitutionally protected
decision through the coercive use of governmental largesse.

															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"

															on governmental funding for abortion. Id. at 432 U.S. 462 (dissenting
both in Maher v. Roe, supra, and in Beal v. Doe, 432 U. S. 438 (1977), and Poelker v. Doe, 432 U.
S. 519 (1977)). Page 448 U. S. 338 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. 448 U. S. 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. Page 448 U. S. 339 I 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 448 U. S. 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 Page 448 U. S. 340 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 448 U. S. 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.
[ Footnote 3/1 ] The record contains
no estimate of the health damage that may occur to poor women, but
it shows that it will be considerable. [ Footnote 3/2 ] Page 448 U. S. 341 II 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 448 U. S. 322 (bracketed material in original), quoting McGowan v.
Maryland, 366 U. S. 420 , 366 U. S. 425 (1961). Observing that previous cases have recognized "the
legitimate governmental objective of protecting potential life," ante at 448 U. S. 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. A 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 , 411 U. S. 98 -110
(1973) (MARSHALL, J., dissenting); Massachusetts Bd. of
Retirement v. Murgia, 427 U. S. 307 , 427 U. S.
318 -321 (1976) (MARSHALL, J., dissenting); Maher v.
Roe, 432 U.S. at 432 U.S.
457 -458 (MARSHALL, J., dissenting); Vance v.
Bradley, 440 U. S. 93 , Page 448 U. S. 342 440 U. S.
113 -115 (1979) (MARSHALL, J., dissenting). [ Footnote 3/3 ] 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 448 U. S. 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 411 U. S. 28 .
[ Footnote 3/4 ] 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. Page 448 U. S. 343 B The Hyde Amendment, of course, distinguishes between medically
necessary abortions and other medically necessary expenses.
[ Footnote 3/5 ] 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 432
U.S. 458 , quoting Massachusetts Bd. of Retirement v.
Murgia, supra at 427 U. S. 322 .
Under that approach, the Hyde Amendment is clearly invalid.
[ Footnote 3/6 ] 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 432 U.S. 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 432 U.S. 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 432 U.S.
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 Page 448 U. S. 344 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 , 304 U. S. 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 , 406 U. S.
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 432 U.S. 461 . In Maher, the Court found a permissible state interest in
encouraging normal childbirth. Id. at 432 U. S.
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. C Although I would abandon the strict scrutiny/rational basis
dichotomy in equal protection analysis, it is by no Page 448 U. S. 345 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 448 U. S.
332 -334 (dissenting opinion). And as my Brother STEVENS
demonstrates, see post at 448 U. S.
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 410 U. S. 165 ,
and when the Government's effort to make serious health damage to
the mother "a more attractive alternative than abortion," ante at 448 U. S. 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 Page 448 U. S. 346 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. III 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. [ Footnote 3/7 ] The result
will not be to protect what the Court describes as "the legitimate
governmental objective of protecting potential life," ante at 448 U. S. 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 Page 448 U. S.
347 to recognize." Beal v. Doe, 432 U.S. at 432 U.S. 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 448 U. S. 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 448 U. S.
332 -334 (dissenting opinion), the differential
distribution of incentives -- which the Court concedes is present
here, see ante at 448 U. S. 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 448 U. S. 326 ,
quoting Maher v. Roe at 432 U. S.
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 , 319 U. S. 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 Page 448 U. S. 348 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 319 U. S.
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. 448 U. S.
358 .]

															[ Footnote 3/1 ] See App. 294-296.

															[ Footnote 3/2 ]

															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.

															[ Footnote 3/3 ]

															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 , 429 U. S.
210 -211, and n. * (1976) (POWELL, J., concurring); id. at 429 U. S.
211 -212 (STEVENS, J., concurring); post at 448 U. S. 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 , 438 U. S. 324 (1978) (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.)
(affirmative action).

															[ Footnote 3/4 ]

															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 , 394 U. S. 807 (1969); Harper v. Virginia Bd. of Elections, 383 U.
S. 663 , 383 U. S. 668 (1966).

															[ Footnote 3/5 ]

															As my Brother STEVENS suggests, see post at 448 U. S. 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.

															[ Footnote 3/6 ]

															In practical effect, my approach is not in this context
dissimilar to that taken in Craig v. Boren, supra at 429 U. S. 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."

															[ Footnote 3/7 ]

															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." Women's Health Services, Inc. v. Maher, 482 F.
Supp. 725 , 731, n. 9.

															MR. JUSTICE BLACKMUN, dissenting.*

															I join the dissent of MR. JUSTICE BRENNAN, and agree
wholeheartedly with his and MR. JUSTICE STEVENS' respective
observations and descriptions of what the Court is doing in this
latest round of "abortion cases." I need add only that I find what
I said in dissent in Beal v. Doe, 432 U.
S. 438 , 432 U.S.
462 (1977), and its two companion cases, Maher v.
Roe, 432 U. S. 464 (1977), and Poelker v. Doe, 432 U.
S. 519 (1977), continues for me to be equally pertinent
and equally applicable in these Hyde Amendment cases. There is
"condescension" in the Court's holding that "she may go elsewhere
for her abortion"; this is "disingenuous and alarming"; the
Government "punitively impresses upon a needy minority its own
concepts of the socially desirable, the publicly acceptable, and
the morally sound"; the "financial argument, of course, is
specious"; there truly is "another world out there,' the
existence of which the Court, I suspect, either chooses to
ignore Page 448 U. S.
349 or fears to recognize"; the "cancer of poverty will continue
to grow"; and "the lot of the poorest among us," once again, and
still, is not to be bettered. * [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. 448 U. S.
358 .]

															MR. JUSTICE STEVENS, dissenting.*

															"The federal sovereign, like the States, must govern
impartially. The concept of equal justice under law is served by
the Fifth Amendment's guarantee of due process, as well as by the
Equal Protection Clause of the Fourteenth Amendment." Hampton v. Mow Sun Won, 426 U. S.
88 , 426 U. S. 100 .
When the sovereign provides a special benefit or a special
protection for a class of persons, it must define the membership in
the class by neutral criteria; it may not make special exceptions
for reasons that are constitutionally insufficient.

															These cases involve the pool of benefits that Congress created
by enacting Title XIX of the Social Security Act in 1965.
Individuals who satisfy two neutral statutory criteria -- financial
need and medical need -- are entitled to equal access to that pool.
The question is whether certain persons who satisfy those criteria
may be denied access to benefits solely because they must exercise
the constitutional right to have an abortion in order to obtain the
medical care they need. Our prior cases plainly dictate the answer
to that question.

															A fundamentally different question was decided in Maher v.
Roe, 432 U. S. 464 .
Unlike these plaintiffs, the plaintiffs in Maher did not
satisfy the neutral criterion of medical need; they sought a
subsidy for nontherapeutic abortions -- medical procedures which,
by definition, they did not need. In rejecting that claim, the
Court held that their constitutional right to choose that procedure
did not impose a duty on Page 448 U. S. 350 the State to subsidize the exercise of that right. Nor did the
fact that the State had undertaken to pay for the necessary medical
care associated with childbirth require the State also to pay for
abortions that were not necessary; for only necessary medical
procedures satisfied the neutral statutory criteria. Nontherapeutic
abortions were simply outside the ambit of the medical benefits
program. Thus, in Maher, the plaintiffs' desire to
exercise a constitutional right gave rise to neither special access
nor special exclusion from the pool of benefits created by Title
XIX.

															These cases involve a special exclusion of women who, by
definition, are confronted with a choice between two serious harms:
serious health damage to themselves on the one hand and abortion on
the other. The competing interests are the interest in maternal
health and the interest in protecting potential human life. It is
now part of our law that the pregnant woman's decision as to which
of these conflicting interests shall prevail is entitled to
constitutional protection. [ Footnote
4/1 ]

															In Roe v. Wade, 410 U. S. 113 , and Doe v. Bolton, 410 U. S. 179 , the
Court recognized that the States have a legitimate and protectible
interest in potential human life. 410 U.S. at 410 U. S. 162 .
But the Court explicitly held that, prior to fetal viability, that
interest may not justify any governmental burden on the woman's
choice to have an abortion, [ Footnote
4/2 ] nor even any Page 448 U. S. 351 regulation of abortion except in furtherance of the State's
interest in the woman's health. In effect, the Court held that a
woman's freedom to elect to have an abortion prior to viability has
absolute constitutional protection, subject only to valid health
regulations. Indeed, in Roe v. Wade the Court held that,
even after fetal viability, a State may

															"regulate, and even proscribe, abortion except where it is
necessary, in appropriate medical judgment, for the preservation of
the life or health of the mother. " Id. at 410 U. S. 165 (emphasis added). We have a duty to respect that holding. The Court
simply shirks that duty in this case.

															If a woman has a constitutional right to place a higher value on
avoiding either serious harm to her own health or perhaps an
abnormal childbirth [ Footnote 4/3 ]
than on protecting potential life, the exercise of that right
cannot provide the basis for the denial of a benefit to which she
would otherwise be entitled. The Court's sterile equal protection
analysis evades this critical, though simple, point. The Court
focuses exclusively on the "legitimate interest in protecting the
potential life of the fetus." Ante at 448 U. S. 324 .
It concludes that, since the Hyde Amendments further that interest,
the exclusion they create is rational, and therefore
constitutional. But it is misleading Page 448 U. S. 352 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 life 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, supra at 410 U. S. 165 .
The Court totally fails to explain why this reasoning is not
dispositive here. [ Footnote
4/4 ] Page 448 U. S. 353 It cannot be denied that the harm inflicted upon women in the
excluded class is grievous. [ Footnote
4/5 ] As the Court's comparison of the differing forms of the
Hyde Amendment that have Page 448 U. S. 354 been enacted since 1976 demonstrates, the Court expressly
approves the exclusion of benefits in "instances where severe and
long-lasting physical health damage to the mother" is the
predictable consequence of carrying the pregnancy to term. Indeed,
as the Solicitor General acknowledged with commendable candor, the
logic of the Court's position would justify a holding that it would
be constitutional to deny funding to a medically and financially
needy person even if abortion were the only lifesaving medical
procedure available. [ Footnote 4/6 ]
Because a denial of benefits for medically necessary abortions
inevitably causes serious harm to the excluded women, it is
tantamount to severe punishment. [ Footnote 4/7 ] In my judgment, that denial cannot be
justified unless government may, in effect, punish women who want
abortions. But as the Court unequivocally held in Roe v.
Wade, this the government may not do. Page 448 U. S. 355 Nor can it be argued that the exclusion of this type of
medically necessary treatment of the indigent can be justified on
fiscal grounds. There are some especially costly forms of treatment
that may reasonably be excluded from the program in order to
preserve the assets in the pool and extend its benefits to the
maximum number of needy persons. Fiscal considerations may compel
certain difficult choices in order to improve the protection
afforded to the entire benefited class. [ Footnote 4/8 ] But, ironically, the exclusion of
medically necessary abortions harms the entire class, as well as
its specific victims. For the records in both McRae and Zbaraz demonstrate that the cost of an abortion is only a
small fraction of the costs associated with childbirth. [ Footnote 4/9 ] Thus, the decision to
tolerate harm to indigent Page 448 U. S. 356 persons who need an abortion in order to avoid "serious and
long-lasting health damage" is one that is financed by draining
money out of the pool that is used to fund all other necessary
medical procedures. Unlike most invidious classifications, this
discrimination harms not only its direct victims, but also the
remainder of the class of needy persons that the pool was designed
to benefit.

															In Maher, the Court stated:

															"The Constitution imposes no obligation on the States to pay the
pregnancy-related medical expenses of indigent women, or indeed to
pay any of the medical expenses of indigents. But when a State
decides to alleviate some of the hardships of poverty by providing
medical care, the manner in which it dispenses benefits is subject
to constitutional limitations."

															432 U.S. at 432 U.S.
469 -470 (footnote omitted).

															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 Hyde Amendments not
only exclude financially and medically needy persons from the pool
of benefits for a constitutionally insufficient reason; they also
require the expenditure of millions and millions of dollars in
order to thwart the exercise of a constitutional right, thereby
effectively inflicting serious and long-lasting harm on
impoverished women who want and need abortions for valid medical
reasons. In my judgment, these Amendments constitute an
unjustifiable, Page 448 U. S. 357 and indeed blatant, violation of the sovereign's duty to govern
impartially. [ Footnote 4/10 ]

															I respectfully 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. 448 U. S.
358 .]

															[ Footnote 4/1 ]

															"In Roe v. Wade, 410 U. S. 113 , the Court held
that a woman's right to decide whether to abort a pregnancy is
entitled to constitutional protection. That decision . . . is now
part of our law. . . ." Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 , 428 U. S. 101 (STEVENS, J., concurring in part and dissenting in part).

															[ Footnote 4/2 ] Roe v. Wade involved Texas statutes making it a crime
to "procure an abortion," except when attempted to save the
pregnant woman's life. 410 U.S. at 410 U. S.
117 -118. Doe v. Bolton involved the somewhat
less onerous Georgia statutes making abortion a crime in most
circumstances, the exceptions being abortions to save the pregnant
woman from life or permanent health endangerment, cases in which
there was a very likely irremediable birth defect in the child, and
cases in which the pregnancy was the result of rape. Those
exceptions were subject to burdensome prior medical approvals,
which were held to be unconstitutional. Subsequent cases have
invalidated other burdens on the pregnant woman's free choice to
abort. See Planned Parenthood of Central Missouri v. Danforth,
supra, (consent required of husband or, for an unmarried woman
under 18, of a parent); Bellotti v. Baird, 443 U.
S. 622 (consent required of either parent or superior
court judge for an unmarried woman under 18).

															[ Footnote 4/3 ]

															The Court rests heavily on the premise -- recognized in both Roe and Maher -- that the State's legitimate
interest in preserving potential life provides a sufficient
justification for funding medical services that are necessarily
associated with normal childbirth without also funding abortions
that are not medically necessary. The Maher opinion
repeatedly referred to the policy of favoring "normal childbirth." See 432 U.S. at 432 U. S. 477 , 432 U. S. 478 , 432 U. S. 479 .
But this case involves a refusal to fund abortions which are
medically necessary to avoid abnormal childbirth.

															[ Footnote 4/4 ]

															These cases thus illustrate the flaw in the method of equal
protection analysis by which one chooses among alternative "levels
of scrutiny" and then determines whether the extent to which a
particular legislative measure furthers a given governmental
objective transcends the predetermined threshold. See Craig v.
Boren, 429 U. S. 190 , 429 U. S.
211 -212 (STEVENS, J., concurring). That method may
simply bypass the real issue. The relevant question in these cases
is whether the Court must attach greater weight to the individual's
interest in being included in the class than to the governmental
interest in keeping the individual out. Since Roe v. Wade squarely held that the individual interest in the freedom to elect
an abortion and the state interest in protecting maternal health
both outweigh the State's interest in protecting potential life
prior to viability, the Court's "equal protection analysis" is
doubly erroneous.

															In responding to my analysis of this case, MR. JUSTICE WHITE has
described the constitutional right recognized in Roe v.
Wade as "the right to choose to undergo an abortion without
coercive interference by the government" or a right "only to be
free from unreasonable official interference with private choice." Ante at 448 U. S. 327 , 448 U. S. 328 .
No such language is found in the Roe opinion itself.
Rather, that case squarely held that state interference is
unreasonable if it attaches a greater importance to the interest in
potential life than to the interest in protecting the mother's
health. One could with equal justification describe the right
protected by the First Amendment as the right to make speeches
without coercive interference by the government and then sustain a
government subsidy for all medically needy persons except those who
publicly advocate a change of administration.

															[ Footnote 4/5 ]

															The record is replete with examples of serious physical harm. See, e.g., Judge Dooling's opinion in McRae v.
Califano, 491 F.
Supp. 630 , 670:

															"Women, particularly young women, suffering from diabetes are
likely to experience high risks of health damage to themselves and
their fetuses; the woman may become blind through the worsening
during pregnancy of a diabetic retinopathy; in the case,
particularly, of the juvenile diabetic, Dr. Eliot testified there
is evidence that a series of pregnancies advances the diabetes
faster; given an aggravated diabetic condition, other risks
increased through pregnancy are kidney problems, and vascular
problems of the extremities." See also the affidavit of Jane Doe in No. 79-1268:

															"3. I am 25 years old. I am married with four living children.
Following the birth of my third child in November of 1976, I
developed a serious case of phlebitis from which I have not
completely recovered. Carrying another pregnancy to term would
greatly aggravate this condition and increase the risk of blood
clots to the lung."

															"4. On July 29, 1977, I went to the Fertility Control Clinic at
St. Paul-Ramsey Hospital, St. Paul, Minnesota, to request an
abortion. They informed me that a new law prohibits any federal
reimbursement for abortions except those necessary to save the life
of the mother and that they cannot afford to do this operation free
for me."

															"5. I cannot afford to pay for an abortion myself, and without
Medicaid reimbursement, I cannot obtain a safe, legal abortion.
According to the doctor, Dr. Jane E. Hodgson, without an abortion,
I might suffer serious and permanent health problems."

															App. in No. 79-1268, pp. 109-110.

															And see the case of the Jane Doe in Nos. 79-4, 79-5, and 79-491,
as recounted in Dr. Zbaraz' affidavit:

															"Jane Doe is 38 years old and has had nine previous pregnancies.
She has a history of varicose veins and thrombophlebitis (blood
clots) of the left leg. The varicose veins can be, and in her case
were, caused by multiple pregnancies: the weight of the uterus on
her pelvic veins increased the blood pressure in the veins of her
lower extremities, those veins dilated and her circulation was
impaired, resulting in thrombophlebitis of her left leg. The
varicosities of her lower extremities became so severe that they
required partial surgical removal in 1973."

															"2. Given this medical history, Jane Doe's varicose veins are
almost certain to recur if she continues her pregnancy. Such a
recurrence would require a second operative procedure for their
removal. Given her medical history, there is also about a 30% risk
that her thrombophlebitis will recur during the pregnancy in the
form of 'deep vein' thrombophlebitis (the surface veins of her left
leg having previously been partially removed). This condition would
impair circulation and might require prolonged hospitalization with
bed rest."

															"3. Considering Jane Doe's medical history of varicose veins and
thrombophlebitis, particularly against the background of her age
and multiple pregnancies, it is my view that an abortion is
medically necessary for her, though not necessary to preserve her
life."

															App. in Nos. 79-4, 79-5, and 79-491, p. 92.

															[ Footnote 4/6 ]

															"QUESTION: Mr. Solicitor General, would you make the same
rational basis argument if the Hyde amendment did not contain the
exception for endangering the life of the mother, if it was her
death rather than adverse impact on her health that was
involved?"

															"Mr. McCREE: I think I would."

															Tr. of Oral Arg. in 79-1268, p. 10.

															[ Footnote 4/7 ]

															In this respect, these cases are entirely different from Maher, in which the Court repeatedly noted that the
refusal to subsidize nontherapeutic abortions would merely result
in normal childbirth. Surely the government may properly presume
that no harm will ensue from normal childbirth.

															[ Footnote 4/8 ]

															This rationale may satisfactorily explain the exclusions from
the Medicaid program noted by the Court. Ante at 448 U. S. 325 ,
n. 28. In all events, it is safe to assume that those exclusions
would conserve the assets of the pool.

															[ Footnote 4/9 ]

															In the Zbaraz case, Judge Grady found that the average
cost to the State of Illinois of an abortion was less than $ 150,
as compared with the cost of a childbirth, which exceeded $ 1,350.
App. to Juris.Statement in No. 79-491, p. 14a, n. 8.

															Indeed, based on an estimated cost of providing support to
children of indigent parents, together with their estimate of the
number of medically necessary abortions that would be funded but
for the Hyde Amendment, appellees in the Zbaraz case
contend that, in the State of Illinois alone, the effect of the
Hyde Amendment is to impose a cost of about $ 20,000,000 per year
on the public fisc. Brief for Appellees in Nos. 79-4, 79-5, and
79-491, p. 60, n. See also Judge Dooling's conclusion:

															"While the debate [on the Hyde Amendment] in both years was on a
rider to the departmental appropriations bill, it was quickly
established that the restriction on abortion funding was not an
economy measure; it was recognized that, if an abortion was not
performed for a Medicaid-eligible woman, the Medicaid and other
costs of childbearing and nurture would greatly exceed the cost of
abortion. Opponents of funding restriction were equally at pains,
however, to make clear that they did not favor funding abortion as
a means of reducing the Government's social welfare costs."

															491 F. Supp. at 644.

															[ Footnote 4/10 ]

															My conclusion that the Hyde Amendments violate the Federal
Government's duty of impartiality applies equally to the Illinois
statute at issue in Zbaraz.

Summary: In Harris v. McRae, the Supreme Court ruled that the Hyde Amendment, which limits federal funding for abortions under the Medicaid program, does not violate the US Constitution. The Court held that neither the Due Process Clause nor the Religion Clauses of the First Amendment are violated by the Amendment, and that participating states are not obligated to fund medically necessary abortions that are not reimbursed by federal funds. The Court's decision was based on the interpretation of the Medicaid program and the intent of Congress in enacting the Hyde Amendment, prioritizing financial contributions from both the federal government and participating states.