Maher v. Roe, 432 U.S. 464 (1977)

Under its Medicaid program, Connecticut paid the medical expenses associated with pregnancy and childbirth, but refused to pay for any abortions except first trimester abortions certified by a physician as medically necessary. Two indigent pregnant women otherwise eligible for Medicaid assistance but who were unable to obtain the required physician’s certificate, challenged the Connecticut regulation as a denial of equal protection and due process.

In an opinion written by Justice Powell, the sixto- three Court concluded that neither equal protection nor due process was offended. Connecticut had no duty to subsidize medical expenses for anybody and could choose to subsidize childbirth rather than abortion. The plaintiffs’ indigent condition was not a suspect classification, so the Connecticut regulation was presumptively valid, and it was rationally related to the legitimate governmental objective of funding childbirth expenses of indigent women. Nor did Connecticut’s regulation infringe upon the constitutionally fundamental abortion right. Said the Court:

The Connecticut regulation places no obstacles . . . 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 . . . 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.

Justice Brennan, joined by Justices Marshall and Blackmun, dissented. They argued that the practical effect of Connecticut’s regulations was to ‘‘coerce indigent pregnant women to bear children they would not otherwise choose to have’’ and that Connecticut had thereby ‘‘inhibited their fundamental right to make that choice free from state interference.’’

Maher was followed three years later by Harris v. McRae, 448 U.S. 297 (1980), in which the Court upheld a federal law, the Hyde Amendment, that forbade the use of federal Medicaid funds to pay for abortion except when necessary to save the pregnant woman’s life or the pregnancy resulted from rape or incest. In Webster v. Reproductive Health Services, 492 U.S. 490 (1989), decided in 1989, the Court used much the same reasoning as in Maher and Harris to uphold a Missouri law that prohibited the use of public employees and facilities to perform or assist abortions that were not necessary to save the pregnant woman’s life. In Rust v. Sullivan, 500 U.S. 173 (1991), the Court extended Maher and Harris to uphold a federal rule that forbade recipients of federal family planning funds to counsel people about abortion. The majority result in each of these cases has been much criticized, and several states have interpreted their state constitutions to require the state, when providing medical financial aid to indigents, to treat abortion and childbirth alike. The analytical problem posed by these cases is one facet of the ‘‘unconstitutional conditions’’ problem. This doctrine holds that governments may not penalize the exercise of a constitutional right but may refrain from subsidizing the exercise of a constitutional right.

CALVIN MASSEY

References and Further Reading

• Epstein, Richard. Bargaining With the State. 1993.
• Kreimer, Seth, Allocational Sanctions: The Problem of Negative Rights in a Positive State, University of Pennsylvania Law Review 132 (1984): 1293.

• Perry, Michael, Why the Supreme Court Was Plainly Wrong in the Hyde Amendment Case: A Brief Comment on Harris v. McRae, Stanford Law Review 32 (1980):1113.
• Sullivan, Kathleen, Unconstitutional Conditions, Harvard Law Review 102 (1989): 1413.
• Westen, Alan, Correspondence, Stanford Law Review 33 (1981): 1187.

Cases and Statutes Cited

• Harris v. McRae, 448 U.S. 297 (1980)
• Rust v. Sullivan, 500 U.S. 173 (1991)
• Webster v. Reproductive Health Services, 492 U.S. 490 (1989)

See also Abortion; Equal Protection of Law (XIV); Harris v. McRae, 448 U.S. 297 (1980); Right v. Privilege Distinction; Rust v. Sullivan, 500 U.S. 173 (1991); State Constitution, Privacy Provisions; Unconstitutional Conditions; Webster v. Reproductive Health Services, 492 U.S. 490 (1989)