Beal v. Doe

The dissenting justices each filed an opinion. Justice Brennan, joined by Justices Marshall and Blackmun in his opinion, began by disagreeing with the Court's position that elective abortions did not belong among the "necessary medical services" for which Pennsylvania was required to provide funding. Pregnancy was "unquestionably a condition requiring medical services," and therefore any treatment associated with it--including the termination of the pregnancy--should be covered as well. That choice should belong not to the states, Brennan held, but to the doctors, a concept reinforced in a statement by the Senate Finance Committee in its 1965 report on the Medicaid bill: the physician, the committee recommended, "is to be the key figure in determining utilization of health services." The Court's previous decisions in Roe and Doe concurred with this judgment, Brennan held, but its current position did not.

Brennan reasoned that if Pennsylvania was not required to fund non-therapeutic abortions, then it had the authority to refuse funding for therapeutic ones or even for live births because any of these could be judged unnecessary. He further cited a 1972 amendment to the 1970 act which reinforced his argument with its statement that one purpose of Medicaid was to assist recipients in attaining or maintaining their ability to care for themselves. This could be achieved, the amendment said, in part by helping individuals "control family size in order to enhance their capacity and ability to seek employment and better meet family needs."

Brennan treated the majority's observation that abortions were illegal in 1965 as a moot point, because the Medicaid Act "deals with general categories of medical services, not with specific procedures." As for the judgment expressed by HEW, Brennan treated this as irrelevant because "The principle of according weight to agency interpretation is inapplicable when a departmental interpretation . . . is patently inconsistent with the controlling statute." Brennan further rejected Pennsylvania's claim of health and financial reasons behind the statute, using an argument similar to that of the respondents: the cost and health risks of abortion were actually lower than those for live birth.

"The Court's construction," Brennan said near his conclusion, "can only result as a practical matter in forcing penniless pregnant women to have children they would not have borne if the State had not weighted the scales to make their choice to have abortions substantially more onerous." He closed by briefly addressing the unanswered question regarding the requirement that two physicians other than the attending physician must agree to the procedure in writing before it could be performed. Due to the "paramount role played by the attending physician in the abortion decision," Brennan held, he would judge that portion of the statute invalid as well.

Marshall took a similar, though stronger, position in his own dissent. Like Brennan, he asserted that "the enactments challenged here brutally coerce poor women to bear children whom society will scorn for every day of their lives"; but he also held that "the government actions in these cases, ostensibly taken to `encourage' women to carry pregnancies to term, are in reality intended to impose a moral viewpoint that no state may constitutionally enforce." Laws such as the Pennsylvania statute under discussion, as well as those others examined by the Court in the other two abortion-related cases that day, had been made by people opposed to the Court's decisions in Roe and Doe, in order "to circumvent the commands of the Constitution and impose their moral choices upon the rest of society."

In Marshall's view, the fact that many of the women seeking abortions under Medicaid were members of minority groups, and that most were poor, meant that the Court's decision would hurt the most vulnerable members of society. Given also the fact that "opposition remains strong against increasing Aid to Families With Dependent Children [welfare] benefits for impoverished mothers and children," the effects would be particularly hurtful. "I am appalled," Marshall wrote, "at the ethical bankruptcy of those who preach a `right to life' that means, under present social policies, a bare existence in utter misery for so many poor women and their children."

After examining the Court's decisions in Maher and Poelker, Marshall judged that the statutes questioned in those cases and the current one were all violative of the Fourteenth Amendment's Equal Protection Clause. He commented on the Court's retreat from its position in Roe and Doe, which he compared to Brown v. Board of Education for their controversial qualities. The decision in Beal, he wrote, would only help "well-financed and carefully orchestrated lobbying campaigns" persuade public officials to put more restrictions into place. "The effect," he concluded,

will be to relegate millions of people to lives of poverty and despair. 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.

Blackmun, in an opinion joined by Brennan and Marshall, echoed the theme that withholding public funds for abortion was equal in practice to forcing poor women to have children they did not want. The Court's ruling, he wrote, implied that even if the government refused to pay for it, a poor woman could come up with the funds for an abortion from some other source. This he compared to the statement of Marie Antoinette when told that the peasants of France had no bread: "Let them eat cake." In concluding words not unlike those of Marshall, Blackmun suggested that the Court was ignoring "another world `out there' . . . " As a consequence of this, he wrote, "the cancer of poverty will continue to grow. This is a sad day for those who regard the Constitution as a force that would serve justice to all evenhandedly and, in so doing, would better the lot of the poorest among us."