U.S. Supreme Court Maher v. Roe, 432
U.S. 464 (1977) Maher v. Roe No. 75-1440 Argued January 11,
1977 Decided June 20, 1977 432
U.S. 464 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
CONNECTICUT Syllabus Appellees, two indigent women who were unable to obtain a
physician's certificate of medical necessity, brought this action
attacking the validity of a Connecticut Welfare Department
regulation that limits state Medicaid benefits for first trimester
abortions to those that are "medically necessary." A three-judge
District Court held that the Equal Protection Clause of the
Fourteenth Amendment forbids the exclusion of nontherapeutic
abortions from a state welfare program that generally subsidizes
the medical expenses incident to pregnancy and childbirth. The
court found implicit in Roe v. Wade, 410 U.
S. 113 , and Doe v. Bolton, 410 U.
S. 179 , the view that "abortion and childbirth . . . are
simply two alternative medical methods of dealing with pregnancy. .
. ." Held: 1. The Equal Protection Clause does not require a State
participating in the Medicaid program to pay the expenses incident
to nontherapeutic abortions for indigent women simply because it
has made a policy choice to pay expenses incident to childbirth.
Pp. 432 U. S.
469 -480.

															(a) Financial need alone does not identify a suspect class for
purposes of equal protection analysis. See San Antonio School
Dist. v. Rodriguez, 411 U. S. 1 , 411 U. S. 29 ; Dandridge v. Williams, 397 U. S. 471 . Pp. 432 U. S.
470 -471.

															(b) The Connecticut regulation does not impinge upon the
fundamental right of privacy recognized in Roe, supra, that protects a woman from unduly burdensome interference with her
freedom to decide whether or not to terminate her pregnancy. That
right implies no limitation on a State's authority to make a value
judgment favoring childbirth over abortion and to implement that
judgment by the allocation of public funds. An indigent woman
desiring an abortion is not disadvantaged by Connecticut's decision
to fund childbirth; she continues as before to be dependent on
private abortion services. Pp. 432 U. S.
471 -474.

															(c) A State is not required to show a compelling interest for
its policy choice to favor normal childbirth. Pp. 432 U. S.
475 -477.

															(d) Connecticut's regulation is rationally related to and
furthers its "strong and legitimate interest in encouraging normal
childbirth," Page 432 U. S. 465 Beal v. Doe, ante at 432 U. S. 446 .
The subsidizing of costs incident to childbirth is a rational means
of encouraging childbirth. States, moreover, have a wide latitude
in choosing among competing demands for limited public funds. Pp. 432 U. S.
478 -480.

															2. Since it is not unreasonable for a State to insist upon a
prior showing of medical necessity to insure that its money is
being spent only for authorized purposes, the District Court erred
in invalidating the requirements of prior written request by the
pregnant woman and prior authorization by the Department of Social
Services for abortions. Although similar requirements are not
imposed for other medical procedures, such procedures do not
involve the termination of a potential human life. P. 432 U. S.
480 . 408 F.
Supp. 660 , reversed and remanded.

															POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, WHITE, REHNQUIST, and STEVENS, JJ., joined.
BURGER, C.J., filed a concurring statement, post, p. 432 U. S. 481 .
BRENNAN, J., filed a dissenting opinion, in which MARSHALL and
BLACKMUN, JJ., joined, post, p. 432 U. S. 482 .
MARSHALL, J., filed a dissenting opinion, ante, p. 432 U. S. 454 .
BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined, ante, p. 432 U.S. 462 .

															MR. JUSTICE POWELL delivered the opinion of the Court.

															In Beal v. Doe, ante, p. 432 U. S. 438 , we
hold today that Title XIX of the Social Security Act does not
require the funding of nontherapeutic abortions as a condition of
participation in the Page 432 U. S. 466 joint federal-state Medicaid program established by that
statute. In this case, as a result of our decision in Beal, we must decide whether the Constitution requires a
participating State to pay for nontherapeutic abortions when it
pays for childbirth. I A regulation of the Connecticut Welfare Department limits state
Medicaid benefits for first trimester abortions [ Footnote 1 ] to those that are "medically
necessary," a term defined to include psychiatric necessity.
Connecticut Welfare Department, Public Assistance Program Manual,
Vol. 3, c. III, § 275 (1975). [ Footnote 2 ] Connecticut enforces this limitation through a
system of prior authorization from its Department of Social
Services. In order to obtain authorization for a first trimester
abortion, the hospital or clinic where the abortion is to be
performed must submit, among other things, a certificate from the
patient's attending physician stating that the abortion is
medically necessary.

															This attack on the validity of the Connecticut regulation Page 432 U. S. 467 was brought against appellant Maher, the Commissioner of Social
Services, by appellees Poe and Roe, two indigent women who were
unable to obtain a physician's certificate of medical necessity.
[ Footnote 3 ] In a complaint
filed in the United States District Court for the District of
Connecticut, they challenged the regulation both as inconsistent
with the requirements of Title XIX of the Social Security Act, as
added, 79 Stat. 343, as amended, 42 U.S.C. § 1396 et seq. (1970 ed. and Supp. V), and as violative of their constitutional
rights, including the Fourteenth Amendment's guarantees of due
process and equal protection. Connecticut originally defended its
regulation on the theory that Title XIX of the Social Security Act
prohibited the funding of abortions that were not medically
necessary. After certifying a class of women unable to obtain
Medicaid assistance for abortions because of the regulation, the
District Court held that the Social Security Act not only allowed
state funding of nontherapeutic abortions, but also required it. Roe v. Norton, 380 F.
Supp. 726 (1974). On appeal, the Court of Appeals for the
Second Circuit read the Social Security Act to allow, but not to
require, state funding of such abortions. 522 F.2d 928 (1975). Upon
remand for consideration of the constitutional issues raised in the
complaint, a three-judge District Court was convened. That court
invalidated the Connecticut regulation. 408 F.
Supp. 660 (1975). Page 432 U. S. 468 Although it found no independent constitutional right to a
state-financed abortion, the District Court held that the Equal
Protection Clause forbids the exclusion of nontherapeutic abortions
from a state welfare program that generally subsidizes the medical
expenses incident to pregnancy and childbirth. The court found
implicit in Roe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U.
S. 179 (1973), the view that

															"abortion and childbirth, when stripped of the sensitive moral
arguments surrounding the abortion controversy, are simply two
alternative medical methods of dealing with pregnancy. . . ."

															408 F. Supp. at 663 n. 3. Relying also on Shapiro v.
Thompson, 394 U. S. 618 (1969), and Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974), the court held that the Connecticut program "weights the
choice of the pregnant mother against choosing to exercise her
constitutionally protected right" to a nontherapeutic abortion, and
"thus infringes upon a fundamental interest." 408 F. Supp. at
663-664. The court found no state interest to justify this
infringement. The State's fiscal interest was held to be "wholly
chimerical because abortion is the least expensive medical response
to a pregnancy." Id. at 664 (footnote omitted). And any
moral objection to abortion was deemed constitutionally
irrelevant:

															"The state may not justify its refusal to pay for one type of
expense arising from pregnancy on the basis that it morally opposes
such an expenditure of money. To sanction such a justification
would be to permit discrimination against those seeking to exercise
a constitutional right on the basis that the state simply does not
approve of the exercise of that right." Ibid. The District Court enjoined the State from requiring the
certificate of medical necessity for Medicaid-funded abortions.
[ Footnote 4 ] Page 432 U. S. 469 The court also struck down the related requirements of prior
written request by the pregnant woman and prior authorization by
the Department of Social Services holding that the State could not
impose any requirements on Medicaid payments for abortions that are
not

															"equally applicable to medicaid payments for childbirth, if such
conditions or requirements tend to discourage a woman from choosing
an abortion or to delay the occurrence of an abortion that she has
asked her physician to perform." Id. at 665. We noted probable jurisdiction to consider
the constitutionality of the Connecticut regulation. 428 U.S. 908
(1976). II 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. [ Footnote 5 ] But when a State decides to alleviate
some of the Page 432 U. S. 470 hardships of poverty by providing medical care, the manner in
which it dispenses benefits is subject to constitutional
limitations. Appellees' claim is that Connecticut must accord equal
treatment to both abortion and childbirth, and may not evidence a
policy preference by funding only the medical expenses incident to
childbirth. This challenge to the classifications established by
the Connecticut regulation presents a question arising under the
Equal Protection Clause of the Fourteenth Amendment. The basic
framework of analysis of such a claim is well settled:

															"We must decide, first, whether [state legislation] operates to
the disadvantage of some suspect class or impinges upon a
fundamental right explicitly or implicitly protected by the
Constitution, thereby requiring strict judicial scrutiny. . . . If
not, the [legislative] scheme must still be examined to determine
whether it rationally furthers some legitimate, articulated state
purpose and therefore does not constitute an invidious
discrimination. . . ." San Antonio School Dist. v. Rodriguez, 411 U. S.
1 , 411 U. S. 17 (1973). Accord, Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 , 427 U. S. 312 ,
314 (1976). Applying this analysis here, we think the District
Court erred in holding that the Connecticut regulation violated the
Equal Protection Clause of the Fourteenth Amendment. A This case involves no discrimination against a suspect class. An
indigent woman desiring an abortion does not come within Page 432 U. S. 471 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. See Rodriguez, supra, at 411 U. S. 29 ; Dandridge v. Williams, 397 U. S. 471 (1970). [ Footnote 6 ]
Accordingly, the central question in this case is whether the
regulation "impinges upon a fundamental right explicitly or
implicitly protected by the Constitution." The District Court read
our decisions in Roe v. Wade, 410 U.
S. 113 (1973), and the subsequent cases applying it, as
establishing a fundamental right to abortion, and therefore
concluded that nothing less than a compelling state interest would
justify Connecticut's different treatment of abortion and
childbirth. We think the District Court misconceived the nature and
scope of the fundamental right recognized in Roe. B At issue in Roe was the constitutionality of a Texas
law making it a crime to procure or attempt to procure an abortion,
except on medical advice for the purpose of saving the life of the
mother. Drawing on a group of disparate cases restricting
governmental intrusion, physical coercion, and criminal prohibition
of certain activities we concluded that the Fourteenth Amendment's
concept of personal liberty Page 432 U. S. 472 affords constitutional protection against state interference
with certain aspects of an individual's personal "privacy,"
including a woman's decision to terminate her pregnancy. [ Footnote 7 ] Id. at 410 U. S.
153 .

															The Texas statute imposed severe criminal sanctions on the
physicians and other medical personnel who performed abortions,
thus drastically limiting the availability and safety of the
desired service. As MR. JUSTICE STEWART observed, "it is difficult
to imagine a more complete abridgment of a constitutional freedom.
. . ." Id. at 410 U. S. 170 (concurring opinion). We held that only a compelling state interest
would justify such a sweeping restriction on a constitutionally
protected interest, and we found no such state interest during the
first trimester. Even when judged against this demanding standard,
however, the State's dual interest in the health of the pregnant
woman and the potential life of the fetus were deemed sufficient to
justify substantial regulation of abortions in the second and third
trimesters.

															"These interests are separate and distinct. Each grows in
substantiality as the woman approaches term, and, at a point during
pregnancy, each becomes 'compelling.'" Id. at 410 U. S.
162 -163. In the second trimester, the State's interest
in the health of the pregnant woman justifies state regulation
reasonably related to that concern. Id. at 410 U. S. 163 .
At viability, usually in the third trimester, the State's interest
in the potential life of the fetus justifies prohibition with
criminal penalties, except where the life or health of the mother
is threatened. Id. at 410 U. S.
163 -164.

															The Texas law in Roe was a stark example of
impermissible interference with the pregnant woman's decision to
terminate her pregnancy. In subsequent cases, we have
invalidated Page 432 U. S. 473 other types of restrictions, different in form but similar in
effect, on the woman's freedom of choice. Thus, in Planned
Parenthood of Central Missouri v. Danforth, 428 U. S.
52 , 428 U. S. 70 -71,
n. 11 (1976), we held that Missouri's requirement of spousal
consent was unconstitutional because it

															"granted [the husband] the right to prevent unilaterally, and
for whatever reason, the effectuation of his wife's and her
physician's decision to terminate her pregnancy."

															Missouri had interposed an " absolute obstacle to a
woman's decision that Roe held to be constitutionally
protected from such interference." (Emphasis added.) Although a
state-created obstacle need not be absolute to be impermissible, see Doe v. Bolton, 410 U. S. 179 (1973); Carey v. Population Services International, 431 U. S. 678 (1977), we have held that a requirement for a lawful abortion "is
not unconstitutional unless it unduly burdens the right to seek an
abortion." Bellotti v. Baird, 428 U.
S. 132 , 428 U. S. 147 (1976). We recognized in Bellotti that "not all
distinction between abortion and other procedures is forbidden" and
that "[t]he constitutionality of such distinction will depend upon
its degree and the justification for it." Id. at 428 U. S.
149 -150. We therefore declined to rule on the
constitutionality of a Massachusetts statute regulating a minor's
access to an abortion until the state courts had had an opportunity
to determine whether the statute authorized a parental veto over
the minor's decision or the less burdensome requirement of parental
consultation.

															These cases recognize a constitutionally protected interest "in
making certain kinds of important decisions" free from governmental
compulsion. Whalen v. Roe, 429 U.
S. 589 , 429 U. S.
599 -600, and nn. 24 and 26 (1977). As Whalen makes clear, the right in Roe v. Wade can be understood
only by considering both the woman's interest and the nature of the
State's interference with it. Roe did not declare an
unqualified "constitutional right to an abortion," as the District
Court seemed to think. Rather, the right protects the woman
from Page 432 U. S. 474 unduly burdensome interference with her freedom to decide
whether to terminate her pregnancy. It implies no limitation on the
authority of a State to make a value judgment favoring childbirth
over abortion, and to implement that judgment by the allocation of
public funds.

															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. We conclude
that the Connecticut regulation does not impinge upon the
fundamental right recognized in Roe. [ Footnote 8 ] Page 432 U. S. 475 C Our conclusion signals no retreat from Roe or the cases
applying it. There is a basic difference between direct state
interference with a protected activity and state encouragement of
an alternative activity consonant with legislative policy.
[ Footnote 9 ] Page 432 U. S. 476 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.

															This distinction is implicit in two cases cited in Roe in support of the pregnant woman's right under the Fourteenth
Amendment. Meyer v. Nebraska, 262 U.
S. 390 (1923), involved a Nebraska law making it
criminal to teach foreign languages to children who had not passed
the eighth grade. Id. at 262 U. S.
396 -397. Nebraska's imposition of a criminal sanction on
the providers of desired services makes Meyer closely
analogous to Roe. In sustaining the constitutional
challenge brought by a teacher convicted under the law, the Court
held that the teacher's "right thus to teach and the right of
parents to engage him so to instruct their children" were "within
the liberty of the Amendment." 262 U.S. at 262 U. S. 400 .
In Pierce v. Society of Sisters, 268 U.
S. 510 (1925), the Court relied on Meyer to
invalidate an Oregon criminal law requiring the parent or guardian
of a child to send him to a public school, thus precluding the
choice of a private school. Reasoning that the Fourteenth
Amendment's concept of liberty "excludes any general power of the
State to standardize its children by forcing them to accept
instruction from public teachers only," the Court held that the law
"unreasonably interfere[d] with the liberty of parents and
guardians to direct the upbringing and education of children under
their control." 268 U.S. at 268 U. S.
534 -535.

															Both cases invalidated substantial restrictions on
constitutionally protected liberty interests: in Meyer, the parent's right to have his child taught a particular foreign
language; in Pierce, the parent's right to choose private,
rather than public school education. But neither case denied to a
State Page 432 U. S. 477 the policy choice of encouraging the preferred course of action.
Indeed, in Meyer, the Court was careful to state that the
power of the State "to prescribe a curriculum" that included
English and excluded German in its free public schools "is not
questioned." 262 U.S. at 262 U. S. 402 .
Similarly, Pierce casts no shadow over a State's power to
favor public education by funding it -- a policy choice pursued in
some States for more than a century. See Brown v. Board of
Education, 347 U. S. 483 , 347 U. S. 489 n. 4 (1954). Indeed, in Norwood v. Harrison, 413 U.
S. 455 , 413 U. S. 462 (1973), we explicitly rejected the argument that Pierce established a "right of private or parochial schools to share with
public schools in state largesse," noting that

															"[i]t is one thing to say that a State may not prohibit the
maintenance of private schools, and quite another to say that such
schools must, as a matter of equal protection, receive state
aid."

															Yet, were we to accept appellees' argument, an indigent parent
could challenge the state policy of favoring public, rather than
private schools, or of preferring instruction in English, rather
than German, on grounds identical in principle to those advanced
here. We think it abundantly clear that a State is not required to
show a compelling interest for its policy choice to favor normal
childbirth any more than a State must so justify its election to
fund public, but not private, education. [ Footnote 10 ] Page 432 U. S. 478 D The question remains whether Connecticut's regulation can be
sustained under the less demanding test of rationality that applies
in the absence of a suspect classification or the impingement of a
fundamental right. This test requires that the distinction drawn
between childbirth and nontherapeutic abortion by the regulation be
"rationally related" to a "constitutionally permissible" purpose. Lindsey v. Normet, 405 U. S. 56 , 405 U. S. 74 (1972); Massachusetts Bd. of Retirement v. Murgia, 427
U.S. at 427 U. S. 314 .
We hold that the Connecticut funding scheme satisfies this
standard. Roe itself explicitly acknowledged the State's strong
interest in protecting the potential life of the fetus. That
interest exists throughout the pregnancy, "grow[ing] in
substantiality as the woman approaches term." 410 U.S. at 410 U. S.
162 -163. Because the pregnant woman carries a potential
human being, she "cannot be isolated in her privacy. . . . [Her]
privacy is no longer sole, and any right of privacy she possesses
must be measured accordingly." Id. at 410 U. S. 159 .
The State unquestionably has a "strong and legitimate interest in
encouraging normal childbirth," Beal v. Doe, ante at 432 U. S. 446 ,
an interest honored over the centuries. [ Footnote 11 ] Nor can there be any question that the
Connecticut regulation rationally furthers that interest. The
medical costs associated with childbirth are substantial, and have
increased significantly in recent years. As Page 432 U. S. 479 recognized by the District Court in this case, such costs are
significantly greater than those normally associated with elective
abortions during the first trimester. The subsidizing of costs
incident to childbirth is a rational means of encouraging
childbirth.

															We certainly are not unsympathetic to the plight of an indigent
woman who desires an abortion, but "the Constitution does not
provide judicial remedies for every social and economic ill," Lindsey v. Normet, supra, at 405 U. S. 74 .
Our cases uniformly have accorded the States a wider latitude in
choosing among competing demands for limited public funds.
[ Footnote 12 ] In Dandridge v. Williams, 397 U.S. at 397 U. S. 485 ,
despite recognition that laws and regulations allocating welfare
funds involve "the most basic economic needs of impoverished human
beings," we held that classifications survive equal protection
challenge when a "reasonable basis" for the classification is
shown. As the preceding discussion makes clear, the state interest
in encouraging normal childbirth exceeds this minimal level.

															The decision whether to expend state funds for nontherapeutic
abortion is fraught with judgments of policy and value over which
opinions are sharply divided. Our conclusion that the Connecticut
regulation is constitutional is not based on a weighing of its
wisdom or social desirability, for this Court does not strike down
state laws "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 (1955), quoted in Dandridge v. Williams, supra, at 397 U. S. 484 .
Indeed, when an issue involves policy choices as sensitive as those
implicated by public funding of nontherapeutic abortions, the
appropriate forum for their resolution in a democracy is the
legislature. We should not forget that "legislatures Page 432 U. S. 480 are ultimate guardians of the liberties and welfare of the
people in quite as great a degree as the courts." Missouri, K.
& T. R. Co. v. May, 194 U. S. 267 , 194 U. S. 270 (1914) (Holmes, J.). [ Footnote
13 ]

															In conclusion, we emphasize that our decision today does not
proscribe government funding of nontherapeutic abortions. It is
open to Congress to require provision of Medicaid benefits for such
abortions as a condition of state participation in the Medicaid
program. Also, under Title XIX as construed in Beal v. Doe,
ante, p. 432 U. S. 438 ,
Connecticut is free -- through normal democratic processes -- to
decide that such benefits should be provided. We hold only that the
Constitution does not require a judicially imposed resolution of
these difficult issues. III The District Court also invalidated Connecticut's requirements
of prior written request by the pregnant woman and prior
authorization by the Department of Social Services. Our analysis
above rejects the basic premise that prompted invalidation of these
procedural requirements. It is not unreasonable for a State to
insist upon a prior showing of medical necessity to insure that its
money is being spent only for authorized purposes. The simple
answer to the argument that similar requirements are not imposed
for other medical procedures is that such procedures do not involve
the termination of a potential human life. In Planned
Parenthood of Central Missouri v. Danforth, 428 U. S.
52 (1976), we held that the woman's written consent to
an abortion was not an impermissible burden under Roe. We
think that decision is controlling on the similar issue here. Page 432 U. S. 481 The judgment of the District Court is reversed, and the case is
remanded for further proceedings consistent with this opinion. It is so ordered. [For dissenting opinion of MR. JUSTICE MARSHALL, see
ante, p. 432 U. S.
454 .]

															[For dissenting opinion of MR. JUSTICE BLACKMUN, see
ante, p. 432 U.S.
462 .]

															[ Footnote 1 ]

															The procedures governing abortions beyond the first trimester
are not challenged here.

															[ Footnote 2 ]

															Section 275 provides in relevant part:

															"The Department makes payment for abortion services under the
Medical Assistance (Title XIX) Program when the following
conditions are met:"

															"1. In the opinion of the attending physician, the abortion is
medically necessary. The term 'Medically Necessary' includes
psychiatric necessity."

															"2. The abortion is to be performed in an accredited hospital or
licensed clinic when the patient is in the first trimester of
pregnancy. . . ."

															"3. The written request for the abortion is submitted by the
patient, and in the case of a minor, from the parent or
guardian."

															" * * * *" "4. Prior authorization for the abortion is secured from the
Chief of Medical Services, Division of Health Services, Department
of Social Services." See n 4, infra. [ Footnote 3 ]

															At the time this action was filed, Mary Poe, a 16-year-old high
school junior, had already obtained an abortion at a Connecticut
hospital. Apparently because of Poe's inability to obtain a
certificate of medical necessity, the hospital was denied
reimbursement by the Department of Social Services. As a result,
Poe was being pressed to pay the hospital bill of $244. Susan Roe,
an unwed mother of three children, was unable to obtain an abortion
because of her physician's refusal to certify that the procedure
was medically necessary. By consent, a temporary restraining order
was entered by the District Court enjoining the Connecticut
officials from refusing to pay for Roe's abortion. After the remand
from the Court of Appeals, the District Court issued temporary
restraining orders covering three additional women. Roe v.
Norton, 408 F.
Supp. 660 , 663 (1975).

															[ Footnote 4 ]

															The District Court's judgment and order, entered on January 16,
1976, were not stayed. On January 26, 1976, the Department of
Social Services revised § 275 to allow reimbursement for
nontherapeutic abortions without prior authorization or consent.
The fact that this revision was made retroactive to January 16,
1976, suggests that the revision was made only for the purpose of
interim compliance with the District Court's judgment and order,
which were entered the same date. No suggestion of mootness has
been made by any of the parties, and this appeal was taken and
submitted on the theory that Connecticut desires to reinstate the
invalidated regulation. Under these circumstances, the subsequent
revision of the regulation does not render the case moot. In any
event, there would remain the denial of reimbursement to Mary Poe,
and similarly situated members of the class, under the pre-revision
regulation. See 380 F. Supp. at 730 n. 3. The State has
asserted no Eleventh Amendment defense to this relief sought by Poe
and those whom she represents.

															[ Footnote 5 ] Boddie v. Connecticut, 401 U.
S. 371 (1971), cited by appellees, is not to the
contrary. There the Court invalidated under the Due Process Clause
"certain state procedures for the commencement of litigation,
including requirements for payment of court fees and costs for
service of process," restricting the ability of indigent persons to
bring an action for divorce. Id. at 401 U. S. 372 .
The Court held:

															"[G]iven the basic position of the marriage relationship in this
society's hierarchy of values and the concomitant state
monopolization of the means for legally dissolving this
relationship, due process does prohibit a State from denying,
solely because of inability to pay, access to its courts to
individuals who seek judicial dissolution of their marriages." Id. at 401 U. S. 374 .
Because Connecticut has made no attempt to monopolize the means for
terminating pregnancies through abortion, the present case is
easily distinguished from Boddie. See also United
States v. Kras, 409 U. S. 434 (1973); Ortwein v. Schwab, 410 U.
S. 656 (1973).

															[ Footnote 6 ]

															In cases such as Griffin v. Illinois, 351 U. S.
12 (1956), and Douglas v. California, 372 U. S. 353 (1963), the Court held that the Equal Protection Clause requires
States that allow appellate review of criminal convictions to
provide indigent defendants with trial transcripts and appellate
counsel. These cases are grounded in the criminal justice system, a
governmental monopoly in which participation is compelled. Cf. n 5, supra. Our subsequent decisions have made it clear that
the principles underlying Griffin and Douglas do
not extend to legislative classifications generally.

															[ Footnote 7 ]

															A woman has at least an equal right to choose to carry her fetus
to term as to choose to abort it. Indeed, the right of procreation
without state interference has long been recognized as "one of the
basic civil rights of man . . . fundamental to the very existence
and survival of the race." Skinner v. Oklahoma ex rel.
Williamson, 316 U. S. 535 , 316 U. S. 541 (1942).

															[ Footnote 8 ]

															Appellees rely on Shapiro v. Thompson, 394 U.
S. 618 (1969), and Memorial Hospital v. Maricopa
County, 415 U. S. 250 (1974). In those cases, durational residence requirements for the
receipt of public benefits were found to be unconstitutional
because they "penalized" the exercise of the constitutional right
to travel interstate.

															Appellees' reliance on the penalty analysis of Shapiro and Maricopa County is misplaced. In our view, there is
only a semantic difference between appellees' assertion that the
Connecticut law unduly interferes with a woman's right to terminate
her pregnancy and their assertion that it penalizes the exercise of
that right. Penalties are most familiar to the criminal law, where
criminal sanctions are imposed as a consequence of proscribed
conduct. Shapiro and Maricopa County recognized
that denial of welfare to one who had recently exercised the right
to travel across state lines was sufficiently analogous to a
criminal fine to justify strict judicial scrutiny.

															If Connecticut denied general welfare benefits to all women who
had obtained abortions and who were otherwise entitled to the
benefits, we would have a close analogy to the facts in Shapiro, and strict scrutiny might be appropriate under
either the penalty analysis or the analysis we have applied in our
previous abortion decisions. But the claim here is that the State
"penalizes" the woman's decision to have an abortion by refusing to
pay for it. Shapiro and Maricopa County did not
hold that States would penalize the right to travel interstate by
refusing to pay the bus fares of the indigent travelers. We find no
support in the right-to-travel cases for the view that Connecticut
must show a compelling interest for its decision not to fund
elective abortions. Sherbert v. Verner, 374 U. S. 398 (1963), similarly is inapplicable here. In addition, that case was
decided in the significantly different context of a
constitutionally imposed "governmental obligation of neutrality"
originating in the Establishment and Freedom of Religion Clauses of
the First Amendment. Id. at 374 U. S.
409 .

															[ Footnote 9 ]

															In Buckley v. Valeo, 424 U. S. 1 (1976),
we drew this distinction in sustaining the public financing of the
Federal Election Campaign Act of 1971. The Act provided public
funds to some candidates, but not to others. We rejected an
asserted analogy to cases such as American Party of Texas v.
White, 415 U. S. 767 (1974), which involved restrictions on access to the electoral
process:

															"These cases, however, dealt primarily with state laws requiring
a candidate to satisfy certain requirements in order to have his
name appear on the ballot. These were, of course, direct
burdens not only on the candidate's ability to run for office,
but also on the voter's ability to voice preferences regarding
representative government and contemporary issues. In contrast, the
denial of public financing to some Presidential candidates is not
restrictive of voters' rights, and less restrictive of candidates'.
Subtitle H does not prevent any candidate from getting on the
ballot or any voter from casting a vote for the candidate of his
choice; the inability, if any, of minority party candidates to
wage effective campaigns will derive not from lack of public
funding, but from their inability to raise private
contributions. Any disadvantage suffered by operation of the
eligibility formulae under Subtitle H is thus limited to the
claimed denial of the enhancement of opportunity to communicate
with the electorate that the formulae afford eligible
candidates."

															424 U.S. at 424 U. S. 94 -95
(emphasis added; footnote omitted).

															[ Footnote 10 ]

															In his dissenting opinion, MR. JUSTICE BRENNAN rejects the
distinction between direct state interference with a protected
activity and state encouragement of an alternative activity, and
argues that our previous abortion decisions are inconsistent with
today's decision. But as stated above, all of those decisions
involved laws that placed substantial state-created obstacles in
the pregnant woman's path to an abortion. Our recent decision in Carey v. Population Services International, 431 U.
S. 678 (1977), differs only in that it involved
state-created restrictions on access to contraceptives, rather than
abortions. MR. JUSTICE BRENNAN simply asserts that the Connecticut
regulation "is an obvious impairment of the fundamental right
established by Roe v. Wade. " Post at 432 U. S.
484 -485. The only suggested source for this purportedly
"obvious" conclusion is a quotation from Singleton v.
Wulff, 428 U. S. 106 (1976). Yet, as MR. JUSTICE BLACKMUN was careful to note at the
beginning of his opinion in Singleton, that case presented
"issues [of standing] not going to the merits of this dispute." Id. at 428 U. S. 108 .
Significantly, MR. JUSTICE BRENNAN makes no effort to distinguish
or explain the much more analogous authority of Norwood v.
Harrison, 413 U. S. 455 (1973).

															[ Footnote 11 ]

															In addition to the direct interest in protecting the fetus, a
State may have legitimate demographic concerns about its rate of
population growth. Such concerns are basic to the future of the
State, and, in some circumstances, could constitute a substantial
reason for departure from a position of neutrality between abortion
and childbirth.

															[ Footnote 12 ] See generally Wilkinson, The Supreme Court, the Equal
Protection Clause, and the Three Faces of Constitutional Equality,
61 Va.L.Rev. 945, 998-1017 (1975).

															[ Footnote 13 ]

															Much of the rhetoric of the three dissenting opinions would be
equally applicable if Connecticut had elected not to fund either
abortions or childbirth. Yet none of the dissents goes so far as to
argue that the Constitution requires such assistance for all
indigent pregnant women.

															MR. CHIEF JUSTICE BURGER, concurring.

															I join the Court's opinion. Like the Court, I do not read any
decision of this Court as requiring a State to finance a
nontherapeutic abortion. The Court's holdings in Roe v.
Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U.
S. 179 (1973), simply require that a State not create an
absolute barrier to a woman's decision to have an abortion. These
precedents do not suggest that the State is constitutionally
required to assist her in procuring it.

															From time to time, every state legislature determines that, as a
matter of sound public policy, the government ought to provide
certain health and social services to its citizens. Encouragement
of childbirth and child care is not a novel undertaking in this
regard. Various governments, both in this country and in others,
have made such a determination for centuries. In recent times, they
have similarly provided educational services. The decision to
provide any one of these services -- or not to provide them -- is
not required by the Federal Constitution. Nor does the providing of
a particular service require, as a matter of federal constitutional
law, the provision of another.

															Here, the State of Connecticut has determined that it will
finance certain childbirth expenses. That legislative
determination Page 432 U. S. 482 places no state-created barrier to a woman's choice to procure
an abortion, and it does not require the State to provide it.
Accordingly, I concur in the judgment.

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

															The District Court held:

															"When Connecticut refuses to fund elective abortions while
funding therapeutic abortions and prenatal and postnatal care, it
weights the choice of the pregnant mother against choosing to
exercise her constitutionally protected right to an elective
abortion. . . . Her choice is affected not simply by the absence of
payment for the abortion, but by the availability of public funds
for childbirth if she chooses not to have the abortion. When the
state thus infringes upon a fundamental interest, it must assert a
compelling state interest." Roe v. Norton, 408 F.
Supp. 660 , 663-664 (1975). This Court reverses on the ground
that "the District Court misconceived the nature and scope of the
fundamental right recognized in Roe [v. Wade, 410 U.
S. 113 (1973)]," ante at 432 U. S. 471 ,
and therefore that Connecticut was not required to meet the
"compelling interest" test to justify its discrimination against
elective abortion, but only "the less demanding test of rationality
that applies in the absence of . . . the impingement of a
fundamental right," ante at 432 U. S. 477 , 432 U. S. 478 .
This holding, the Court insists, "places no obstacles -- absolute
or otherwise -- in the pregnant woman's path to an abortion"; she
is still at liberty to finance the abortion from "private sources." Ante at 432 U. S. 474 .
True,

															"the State may [by funding childbirth] have made childbirth a
more attractive alternative, thereby influencing the woman's
decision, but it has imposed no restriction on access to abortions
that was not already there." Ibid. True, also, indigency "may make it difficult --
and in some cases, Page 432 U. S. 483 perhaps impossible -- for some women to have abortions," but
that regrettable consequence "is neither created nor in any way
affected by the Connecticut regulation." Ibid. But a distressing insensitivity to the plight of impoverished
pregnant women is inherent in the Court's analysis. The stark
reality for too many, not just "some," indigent pregnant women is
that indigency makes access to competent licensed physicians not
merely "difficult," but "impossible." As a practical matter, many
indigent women will feel they have no choice but to carry their
pregnancies to term because the State will pay for the associated
medical services, even though they would have chosen to have
abortions if the State had also provided funds for that procedure,
or indeed if the State had provided funds for neither procedure.
This disparity in funding by the State clearly operates to coerce
indigent pregnant women to bear children they would not otherwise
choose to have, and just as clearly, this coercion can only operate
upon the poor, who are uniquely the victims of this form of
financial pressure. Mr. Justice Frankfurter's words are apt:

															"To sanction such a ruthless consequence, inevitably resulting
from a money hurdle erected by the State, would justify a
latter-day Anatole France to add one more item to his ironic
comments on the 'majestic equality' of the law. 'The law, in its
majestic equality, forbids the rich as well as the poor to sleep
under bridges, to beg in the streets, and to steal bread.' . .
." Griffin v. Illinois, 351 U. S. 12 , 351 U. S. 23 (1956) (concurring opinion).

															None can take seriously the Court's assurance that its
"conclusion signals no retreat from Roe [v. Wade] or the
cases applying it," ante at 432 U. S. 475 .
That statement must occasion great surprise among the Courts of
Appeals and District Courts that, relying upon Roe v. Wade and Doe v. Bolton, 410 U. S. 179 (1973), have held that States are constitutionally required to fund
elective abortions if they fund pregnancies carried to Page 432 U. S. 484 term. See Doe v. Rose, 499 F.2d 1112 (CA10 1974); Wulff v. Singleton, 508 F.2d 1211 (CA8 1974), rev'd
and remanded on other grounds, 428 U. S. 428 U.S.
106 (1976); Doe v. Westby, 383
F. Supp. 1143 (WDSD 1974), vacated and remanded (in
light of Hagans v. Lavine, 415 U.
S. 528 (1974)), 420 U.S. 968, on
remand, 402 F.
Supp. 140 (1975); Doe v. Wohlgemuth, 376 F.
Supp. 173 (WD Pa.1974), aff'd on statutory grounds sub nom.
Doe v. Beal, 523 F.2d 611 (CA3 1975), rev'd and remanded,
ante, p. 432 U. S. 438 ; Doe v. Rampton, 366 F.
Supp. 189 (Utah 1973); Klein v. Nassau County Medical
Center, 347 F.
Supp. 496 (EDNY 1972), vacated and remanded (in light
of Roe v. Wade and Doe v. Bolton, 412 U.S. 925
(1973)), on remand, 409 F.
Supp. 731 (1976). Indeed, it cannot be gainsaid that today's
decision seriously erodes the principles that Roe and Doe announced to guide the determination of what
constitutes an unconstitutional infringement of the fundamental
right of pregnant women to be free to decide whether to have an
abortion.

															The Court's premise is that only an equal protection claim is
presented here. Claims of interference with enjoyment of
fundamental rights have, however, occupied a rather protean
position in our constitutional jurisprudence. Whether or not the
Court's analysis may reasonably proceed under the Equal Protection
Clause, the Court plainly errs in ignoring, as it does, the
unanswerable argument of appellees, and the holding of the District
Court, that the regulation unconstitutionally impinges upon their
claim of privacy derived from the Due Process Clause. Roe v. Wade and cases following it hold that an area of
privacy invulnerable to the State's intrusion surrounds the
decision of a pregnant woman whether or not to carry her pregnancy
to term. The Connecticut scheme clearly impinges upon that, area of
privacy by bringing financial pressures on indigent women that
force them to bear children they would not otherwise have. That is
an obvious impairment of the Page 432 U. S. 485 fundamental right established by Roe v. Wade. Yet the
Court concludes that "the Connecticut regulation does not impinge
upon [that] fundamental right." Ante at 432 U. S. 474 .
This conclusion is based on a perceived distinction, on the one
hand, between the imposition of criminal penalties for the
procurement of an abortion present in Roe v. Wade and Doe v. Bolton and the absolute prohibition present in Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 (1976), and, on the other, the assertedly lesser inhibition imposed
by the Connecticut scheme. Ante at 432 U. S.
472 -474.

															The last time our Brother POWELL espoused the concept in an
abortion case that

															"[t]here is a basic difference between direct state interference
with a protected activity and state encouragement of an alternative
activity consonant with legislative policy," ante at 432 U. S. 475 ,
the Court refused to adopt it. Singleton v. Wulff, 428 U. S. 106 , 428 U. S. 122 (1976). This was made explicit in Part II of our Brother BLACKMUN's
opinion for four of us, and is implicit in our Brother STEVENS'
essential agreement with the analysis of Part II-B. Id. at 428 U. S.
121 -122 (concurring in part). Part II-B stated:

															"MR. JUSTICE POWELL would so limit Doe and the other
cases cited, explaining them as cases in which the State 'directly
interfered with the abortion decision' and 'directly interdicted
the normal functioning of the physician-patient relationship by
criminalizing certain procedures,' [428 U.S.] at 428 U. S.
128 . There is no support in the language of the cited
cases for this distinction. . . . Moreover, a 'direct interference'
or 'interdiction' test does not appear to be supported by
precedent. . . . For a doctor who cannot afford to work for
nothing, and a woman who cannot afford to pay him, the State's
refusal to fund an abortion is as effective an 'interdiction' of it
as would ever be necessary. Furthermore, since the right . . . is
not simply the right to have an abortion, but the right to have
abortions nondiscriminatorily funded, Page 432 U. S. 486 the denial of such funding is as complete an 'interdiction' of
the exercise of the right as could ever exist." Id. at 428 U. S. 118 n. 7.

															We have also rejected this approach in other abortion cases. Doe v. Bolton, the companion to Roe v. Wade, in
addition to striking down the Georgia criminal prohibition against
elective abortions, struck down the procedural requirements of
certification of hospitals, of approval by a hospital committee,
and of concurrence in the abortion decision by two doctors other
than the woman's own doctor. None of these requirements operated as
an absolute bar to elective abortions in the manner of the criminal
prohibitions present in the other aspect of the case or in Roe, but this was not sufficient to save them from
unconstitutionality. In Planned Parenthood, supra, we
struck down a requirement for spousal consent to an elective
abortion which the Court characterizes today simply as an "absolute
obstacle" to a woman's obtaining an abortion. Ante at 432 U. S. 473 .
But the obstacle was "absolute" only in the limited sense that a
woman who was unable to persuade her spouse to agree to an elective
abortion was prevented from obtaining one. Any woman whose husband
agreed, or could be persuaded to agree, was free to obtain an
abortion, and the State never imposed directly any prohibition of
its own. This requirement was qualitatively different from the
criminal statutes that the Court today says are comparable, but we
nevertheless found it unconstitutional.

															Most recently, also in a privacy case, the Court squarely
reaffirmed that the right of privacy was fundamental, and that an
infringement upon that right must be justified by a compelling
state interest. Carey v. Population Services
International, 431 U. S. 678 (1977). That case struck down in its entirety a New York law
forbidding the sale of contraceptives to minors under 16 years old,
limiting persons who could sell contraceptives to pharmacists, and
forbidding advertisement Page 432 U. S. 487 and display of contraceptives. There was no New York law
forbidding use of contraceptives by anyone, including minors under
16, and therefore no "absolute" prohibition against the exercise of
the fundamental right. Nevertheless the statute was declared
unconstitutional as a burden on the right to privacy. In words that
apply fully to Connecticut's statute, and that could hardly be more
explicit, Carey stated:

															"'Compelling' is, of course, the key word; where a decision as
fundamental as that whether to bear or beget a child is involved,
regulations imposing a burden on it may be justified only by
compelling state interests, and must be narrowly drawn to express
only those interests." Id. at 431 U. S. 686 . Carey relied specifically upon Roe, Doe, and Planned Parenthood, and interpreted them in a way flatly
inconsistent with the Court's interpretation today:

															"The significance of these cases is that they establish that the
same test must be applied to state regulations that burden an
individual's right to decide to prevent conception or terminate
pregnancy by substantially limiting access to the means of
effectuating that decision as is applied to state statutes that
prohibit the decision entirely."

															431 U.S. at 431 U. S.
688 .

															Finally, cases involving other fundamental rights also make
clear that the Court's concept of what constitutes an impermissible
infringement upon the fundamental right of a pregnant woman to
choose to have an abortion makes new law. We have repeatedly found
that infringements of fundamental rights are not limited to
outright denials of those rights. First Amendment decisions have
consistently held in a wide variety of contexts that the compelling
state interest test is applicable not only to outright denials, but
also to restraints that make exercise of those rights more
difficult. See, e.g., Sherbert v. Verner, 374 U.
S. 398 (1963) (free exercise of religion); NAACP v.
Button, 371 U. S. 415 (1963) (freedom of expression and association), Linmark
Associates v. Township of Willingboro, 431 U. S.
85 (1977) (freedom of expression). Page 432 U. S. 488 The compelling state interest test has been applied in voting
cases, even where only relatively small infringements upon voting
power, such as dilution of voting strength caused by
malapportionment, have been involved. See, e.g., Reynolds v.
Sims, 377 U. S. 533 , 377 U. S. 562 , 377 U.S. 566 (1964); Chapman v. Meier, 420 U. S. 1 (1975); Connor v. Finch, 431 U. S. 407 (1977). Similarly, cases involving the right to travel have
consistently held that statutes penalizing the fundamental right to
travel must pass muster under the compelling state interest test,
irrespective of whether the statutes actually deter travel. Memorial Hospital v. Maricopa County, 415 U.
S. 250 , 415 U. S.
257 -258 (1974); Dunn v. Blumstein, 405 U.
S. 330 , 405 U. S.
339 -341 (1972); Shapiro v. Thompson, 394 U. S. 618 (1969). And indigents asserting a fundamental right of access to
the courts have been excused payment of entry costs without being
required first to show that their indigency was an absolute bar to
access. Griffin v. Illinois, 351 U. S.
12 (1956); Douglas v. California, 372 U.
S. 353 (1963); Boddie v. Connecticut, 401 U. S. 371 (1971).

															Until today, I had not thought the nature of the fundamental
right established in Roe was open to question, let alone
susceptible of the interpretation advanced by the Court. The fact
that the Connecticut scheme may not operate as an absolute bar
preventing all indigent women from having abortions is not
critical. What is critical is that the State has inhibited their
fundamental right to make that choice free from state
interference.

															Nor does the manner in which Connecticut has burdened the right
freely to choose to have an abortion save its Medicaid program. The
Connecticut scheme cannot be distinguished from other grants and
withholdings of financial benefits that we have held
unconstitutionally burdened a fundamental right. Sherbert v.
Verner, supra, struck down a South Carolina statute that
denied unemployment compensation to a woman who, for religious
reasons, could not Page 432 U. S. 489 work on Saturday, but that would have provided such compensation
if her unemployment had stemmed from a number of other nonreligious
causes. Even though there was no proof of indigency in that case, Sherbert held that "the pressure upon her to forgo [her
religious] practice [was] unmistakable," 374 U.S. at 374 U. S. 404 ,
and therefore held that the effect was the same as a fine imposed
for Saturday worship. Here, though the burden is upon the right to
privacy derived from the Due Process Clause, and not upon freedom
of religion under the Free Exercise Clause of the First Amendment,
the governing principle is the same, for Connecticut grants and
withholds financial benefits in a manner that discourages
significantly the exercise of a fundamental constitutional right.
Indeed, the case for application of the principle actually is
stronger than in Verner, since appellees are all
indigents, and therefore even more vulnerable to the financial
pressure imposed by the Connecticut regulation. Bellotti v. Baird, 428 U. S. 132 , 428 U. S. 147 (1976), held, and the Court today agrees, ante at 432 U. S. 473 ,
that a state requirement is unconstitutional if it "unduly burdens
the right to seek an abortion." Connecticut has "unduly" burdened
the fundamental right of pregnant women to be free to choose to
have an abortion because the State has advanced no compelling state
interest to justify its interference in that choice.

															Although appellant does not argue it as justification, the Court
concludes that the State's interest "in protecting the potential
life of the fetus" suffices, ante at 432 U. S. 478 . * Since only the
first trimester of pregnancy is involved in this case, that
justification is totally foreclosed if the Court is not
overruling Page 432 U. S. 490 the holding of Roe v. Wade that, "[w]ith respect to the
State's important and legitimate interest in potential life, the compelling' point is at viability," occurring at about the end
of the second trimester. 410 U.S. at 410 U. S. 163 .
The appellant also argues a further justification not relied upon
by the Court, namely, that the State needs "to control the amount
of its limited public funds which will be allocated to its public
welfare budget." Brief for Appellant 22. The District Court
correctly held, however, that the asserted interest was "wholly
chimerical" because the "state's assertion that it saves money when
it declines to pay the cost of a welfare mother's abortion is
simply contrary to undisputed facts." 408 F. Supp. at 664. Finally, the reasons that render the Connecticut regulation
unconstitutional also render invalid, in my view, the requirement
of a prior written certification by the woman's attending physician
that the abortion is "medically necessary," and the requirement
that the hospital submit a Request for Authorization of
Professional Services including a "statement indicating the medical
need for the abortion." Brief for Appellees 2-3. For the same
reasons, I would also strike down the requirement for prior
authorization of payment by the Connecticut Department of Social
Services.

															* The Court also suggests, ante at 432 U. S. 478 n. 11, that a "State may have legitimate demographic concerns about
its rate of population growth" which might justify a choice to
favor live births over abortions. While it is conceivable that,
under some circumstances this might be an appropriate factor to be
considered as part of a State's "compelling" interest, no one
contends that this is the case here, or indeed that Connecticut has
any demographic concerns at all about the rate of its population
growth.

Summary: In *Maher v. Roe*, the Supreme Court held that states participating in the Medicaid program are not required to fund non-therapeutic abortions for indigent women, even if they choose to fund childbirth expenses. The Court reasoned that financial need does not create a suspect class for equal protection purposes and that the Connecticut regulation did not violate the fundamental right to privacy established in *Roe v. Wade*. The Court further concluded that Connecticut's decision to favor childbirth over abortion through public funding was a valid value judgment and did not require a compelling state interest. Dissenting opinions argued that the regulation unduly burdened the fundamental right to choose abortion and that the state's asserted interest in saving money was not compelling.