Maher v. Roe – Oral Argument – January 11, 1977

Media for Maher v. Roe

Audio Transcription for Opinion Announcement – June 20, 1977 in Maher v. Roe

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Warren E. Burger:

We’ll hear arguments next in 75-1440, Maher against Roe.

Mr. Walsh, I think you may proceed when you are ready.

Edmund C. Walsh:

Mr. Chief Justice and may it please the Court.

Facts in this case, the plaintiff’s challenge Connecticut to Medicaid policy on payment for abortion under Title 19 of Medicaid program is the same as in the previous case.

The challenge was made on both statutory and constitutional grounds.

The Connecticut policy which is Section 275 of the Welfare Department manual provided that in order for the state to pay for an abortion under the Title 19 program, the attending physician, the physician of her choice was required to submit a certificate of medical necessity which is set forth at page 47 of the appendix.

William J. Brennan, Jr.:

Well, does it differ much from the Pennsylvania requirement?

Edmund C. Walsh:

It says Your Honor to allow — the attending physician merely has to state that in his opinion, the abortion is medically necessary for the patient’s health, that’s all and that is not challenged.

William J. Brennan, Jr.:

No but is that much different from the one we have just discussed in Pennsylvania?

Edmund C. Walsh:

Well I think it’s even more — more liberal, Your Honor.

In addition to that certificate of medical necessity, the doctor must also submit a form W601 which is at page 45 of the appendix, requesting a prior authorization, prior approval for payment for the abortion and in that form, he must indicate what the medical need for the abortion is and as I’ve just stated a moment ago an answer to Mr. Justice Brennan’s question, the attending physician’s medical judgment as to the need for the abortion is never questioned by Connecticut.

Potter Stewart:

I suppose there are provisions to detect and apply sanctions against fraud on the part of physicians under the Medicaid program, not only in this area, but through out the program, aren’t there?

Edmund C. Walsh:

There are Your Honor, but current press is correct, the country is quite remiss in that area the present time.

It’s a difficult program to police.

Potter Stewart:

Well, I can understand why it would be, but that program would be applicable here as well as applicable in other parts of Medicaid, wouldn’t it?

Edmund C. Walsh:

Yes, Your Honor.

Potter Stewart:

And found the physician was consistently lying.

Edmund C. Walsh:

Well in this particular area, abortion is —

Potter Stewart:

Getting public funds that were not — that nobody was entitled to?

Edmund C. Walsh:

Oh Your Honor, there is no question that would be fraudulent and the state does have a quality control system.

Potter Stewart:

So to that extent, I suppose his certificate is subject to question, isn’t it?

Edmund C. Walsh:

Yes.

Theoretically, the veracity is subject to question, but I think under Roe versus Wade the appropriate disciplinary action in this event might be through the professional societies because of the sensitivity of this particular medical service —

Potter Stewart:

Well let’s say if a physician were consistently prescribing drugs that were not needed, not medically necessary just in order to get public moneys and nobody — that neither he nor the patient were entitled to, wouldn’t he be subject to sanctions, criminal —

Edmund C. Walsh:

He would, Your Honor and I believe at a certain point, he would no longer be accepted for participation in the Title 19 program.

Well, the plaintiffs then brought this action after the refusal by the two original plaintiffs.

Their physicians would not submit the statement of medical necessity.

There were several subsequent intervening plaintiffs for which temporary restraining orders were granted.

But in no case that the attending physician submitted the certificate of medical necessity and this action was then brought challenging the state policy on both statutory and constitutional grounds.

The single-judge District Court on the plaintiff’s motion for summary judgment disposed of the case initially on the pendant statutory claim holding that the Federal Title 19 Statute required payment for elective abortion.

Edmund C. Walsh:

The defending commissioner then appealed and the Second Circuit reversed and remanded holding in effect that while Title 19 permits payment for abortion, it does not require payment for elective abortion.

And one judge, Judge Mulligan of the Second Circuit dissented in part from that decision.

The three-judge court when it remanded, instructed — excuse me, the Circuit Court when it remanded, the Second Circuit instructed the District Court to determine if Connecticut would continue to refuse to pay for elective abortion since the Second circuit had now decided that it was permissible to pay for elective abortions.

State’s position originally had been that the federal statute prevented payment.

The state informed the Court that it would not — it elected not change its policy and it would not pay for elective abortions.

And then once again, a three-judge court was convened and once again on the plaintiff’s motion for summary judgment, the three-judge court after oral argument held that Connecticut’s medical abortion policy was invalid insofar as it required certification that an abortion is medically or psychiatrically necessary and insofar as it requires prior to the performance of an abortion, any form of approval or consent or any other condition or requirement for the reimbursement of the expenses of an abortion performed during the first trimester of the pregnancy.

This case was limited to first trimester abortions by the three-judge court since there were no second semester abortions performed.

There is a second semester abortion performed in the appendix at page 46 or 47 I believe which is a little different, but apparently is not at issue here.

Prior to the entry of that judgment by the three-judge court, the plaintiffs, the defending commissioner had made a motion to strike certain affidavits which had been attached to the plaintiff’s memorandum in support of its motion for summary judgment.

And at the oral argument, the defendant requested the court to rule on the motion to strike and the court — and the three-judge court said it would rule on that motion, but it never did so.

Now, in striking down Connecticut’s Medicaid policy, the District Court held essentially that the constitution does not require the state to pay for any medical services, but nevertheless once a state chooses to establish a program to pay for the medical expenses of the indigent and as part of that program it pays for therapeutic abortions and it pays for pregnancy, child birth, prenatal and postnatal care, but it does not pay for elective abortions.

In that event that the three-judge court held that it was not — the state was not acting strictly neutral and in that — and so, it was infringing thereby upon the plaintiff’s constitutionally elected right to have an abortion as announced in Roe v. Wade and it cited Dunn v. Blumstein in support of its decision and Maricopa County Memorial Hospital and Shapiro v. Thompson, the presidency case.

Potter Stewart:

Do you understand the District Court’s judgment to have been based upon the Equal Protection Clause of the Fourteenth Amendment or on something else in the Fourteenth Amendment?

Edmund C. Walsh:

It’s not absolutely clear, Your Honor.

I assume that in my argument will it be that it was upon the equal protection argument, but there is this a bit about infringing on the right to an abortion which conceivably could be based upon another amendment.

Potter Stewart:

Or another part of that same amendment?

Edmund C. Walsh:

Another part of the same amendment.

Potter Stewart:

It was Blumstien?

Edmund C. Walsh:

I think it may well have been Blumstien, Your Honor.

We believe that —

Potter Stewart:

Well, a little bit like the Shapiro case in this Court which is also I think involved your statement.

Edmund C. Walsh:

Yes Your Honor.

The Shapiro case seems to always come up in any discussion of this case.

We believe that the fallacy of the District Court’s reasoning in this case was that Connecticut has no program for funding the medical expenses of pregnancy as such or prenatal or postnatal care.

What it does have is a program to pay for medical expenses which are medically necessary for the patient’s health and the test — that is the test, whether it’s medically necessary for the patient’s health, if it is, it will be paid for, if it is not, they will be excluded except for some medically necessary services which are excluded because of their prohibitive cost and dental expenses, particularly periodontia and orthodontia are two that are very costly that are excluded although they are admittedly necessary — medically necessary for the patient’s health.

Under Connecticut’s program, pregnancy and abortion are treated alike.

They must both be medically necessary for the patient’s health in order to be paid for under the program.

I think that the plaintiff’s make much of the fact that if you pay for the expenses of pregnancy, you should pay for abortion.

But it is the medical community that has determined really that the expenses of child birth are medically necessary and there was no testimony of any medical testimony and indeed the plaintiffs have admitted in their brief that the expenses of child birth and pregnancy are medically necessary for the patient’s health.

Now that test of medical necessity has been Connecticut’s test since the inception of its program in 1965.

Edmund C. Walsh:

That was nearly eight years before this Court announced the constitutionally protective right of a woman in consultation with their physician to choose to have an abortion in Roe versus Wade.

The District Court did not dispute that this test of medical necessity for the patient’s health was the test for payment under Connecticut’s program.

The Lower Court simply refused to judge whether this classification offended the Equal Protection Clause and instead the Lower Court set forth its own perceived classification by narrowly focusing on how elective abortion was treated as compared to pregnancy.

The Lower Court, we believe thereby was side of the fact that the test for payment was whether the service was medically necessary for the patient’s health and that the whole purpose of the program was to provide necessary healthcare and that pregnancy or abortion or whatever were merely incidental treatments under the program of medical providing necessary healthcare.

Now, we think there would be validity to the District Court’s opinion if Connecticut had either done one of the two things.

If Connecticut had a separate program just for payment of expenses of child birth and pregnancy or if abortions which were admittedly medically necessary for the patient’s health were excluded from Connecticut’s program which they are not, in either on those events, we believe that the rationale of the District Court would be valid, but Connecticut has no such programs and it has never had such programs and consequently —

Byron R. White:

Do you think Connecticut that excluded the expenses of the child birth either under the statute or constitutionally?

Edmund C. Walsh:

I believe they could.

According to HEW’s amicus brief that was submitted to the Second Circuit on the statutory question, Your Honor.

HEW says that the states have a very broad —

Byron R. White:

Including paying for child birth?

Edmund C. Walsh:

Yes Your Honor, I believe so.

Potter Stewart:

Do we have amicus brief in this case from HEW?

We have one one the case that was just argued.

Edmund C. Walsh:

No Your Honor, we do not.

Potter Stewart:

We do not, do we?

Edmund C. Walsh:

No.

Potter Stewart:

I want to be sure I wasn’t missing anything.

John Paul Stevens:

Mr. Walsh, if we analyze the case as an equal protection case for a moment, the three-judge district court seem to say that whether it’s a compelling state interest or rational basis test, Connecticut has not advanced any state interest whatsoever for discriminating between pregnant women who elect an abortion as opposed to pregnant women who elect to bear the child.

They say the physical interest cuts the other way and that there is no other interest involved.

Do you rely in any state interest for that and if so what?

Edmund C. Walsh:

Well first of all, we rely very heavily on the physical interest because we think it’s a very important interest for the state to be able to control its medical expenditures in the pubic health field.

But what we are also afraid of is that the District Court’s order forces Connecticut to include a service in the state’s program which is admittedly not medically necessary for the patient’s health and I say admittedly because determination has left to the patient’s own attending physician.

And this is the, pardon me, this is done even when there are other —

John Paul Stevens:

If, let me just take this to the two parts to your answer.

First on the physical point; if a trial should establish and there should be findings of fact, now the court, the District Court just stated the conclusion that it actually would save the state money because it will eliminate certain welfare costs and eliminate the expense of child birth for the people in this category to have — to allow the abortions.

Would that not be a complete answer to your physical argument?

Edmund C. Walsh:

No, Your Honor.

That would be in my judgment, an indication that the state legislature or in this case the administrative agency was guilty of enacting foolish legislation.

It was the wisdom — that would be a challenge to the wisdom of the legislation because it is somewhat speculative, although, I think it would be probably is true that by not granting elective abortions, the state will eventually pay more for these people, some to raising these children who may end up on welfare but that is somewhat speculative.

Edmund C. Walsh:

But that is a decision in our view that is up to the legislature or by its delegation to the administrative agency because we think it’s a perfectly rational basis for the state to setup a program whose purpose is to provide necessary healthcare and that implies that it will exclude unnecessary healthcare.

When elective abortion as Judge Mulligan said in his dissenting opinion in the Second Circuit is really starkly put, unnecessary medical care.

And that determination is not made by the state, it’s made by the patient’s attending physician because if it is necessary, all he has to do is sign the certificate and the abortion will be paid for.

John Paul Stevens:

What you are saying — let me just see if I can state in my own language.

I’m not quite sure I have it, but you’re saying the state could rationally establish a program that differentiated between necessary and unnecessary medical care, and when you establish such a program this distinction just falls into place?

Edmund C. Walsh:

That’s correct, Your Honor.

John Paul Stevens:

That’s what you’re saying?

Edmund C. Walsh:

Yes.

Warren E. Burger:

And some of the categories might be wise and some might be unwise, but you say the legislature has a right to make its own mistakes?

Edmund C. Walsh:

Yes indeed, Your Honor and as the other part of the answer I was going to say was when the state is compelled to include a non necessary medical service in it’s program and at the same time because of physical necessity it must exclude services like orthodontia and periodontia and we have two cases challenging and right now in Connecticut, two cases challenging the federal statute for excluding those things.

We think that it will be almost impossible to defend those cases once an unnecessary medical service has been included in the program.

Thurgood Marshall:

Mr. Walsh, what other medical service do you have to file all of these explanations?

Edmund C. Walsh:

I think Your Honor they are all listed on page two of appellee’s brief in a footnote.

They are 19 reasons I believe, dental services except for emergency dental services, chiropractic service, I believe psychiatric services, physical therapy, there’s 19 altogether, Your Honor.

There is a great —

Thurgood Marshall:

Well, this chiropractic medical?

Edmund C. Walsh:

Pardon?

HEW has amended this statute sometime ago to —

Thurgood Marshall:

I’m not talking about HEW, I’m talking about Connecticut.

Edmund C. Walsh:

Connecticut attempted.

This is — Connecticut attempted to cut back its medic —

Thurgood Marshall:

Well, you admit that you do put special emphasis on abortions?

Edmund C. Walsh:

No.

Prior —

Thurgood Marshall:

You put a little more than you do on appendectomies?

Edmund C. Walsh:

Yes Your Honor, but the reason for that, one of the reasons for this seeking of prior approval is that if it were not done that way, the hospitals would not know whether they are going to receive payment for the treatment until after they had submitted their request for payments to the state.

That’s one of the administrative reasons for the prior approval.

William H. Rehnquist:

Mr. Walsh, I suppose there maybe larger concerns on both sides surrounding the question of abortion then there are to question of appendectomy or orthodontia.

In defending your statute against a strictly equal protection attack, do you think the state can make any argument that has a — at least it can advance as a rational consideration of policy to prefer births to abortion?

Edmund C. Walsh:

Well as I said Your Honor, it does not prefer births to abortions.

Edmund C. Walsh:

That only becomes about incidentally as these services are either medically or not medically necessary.

When the program was established, its purpose was to provide medically necessary healthcare and it really is up to the medical community and the individual physicians to determine whether given services or is not medically necessary.

And so, it isn’t really that the state is consciously favoring child birth over abortion.

If that is the state of the medical art that child birth is universally regarded as requiring necessary medical care I believe whereas in abortion, that is not the case because there are several physicians in this action that have submitted affidavits distinguishing —

William H. Rehnquist:

Well okay.

What if in Connecticut for some reason, although the entire medical profession took the view that abortions were very much to be preferred to births, so that the result was that even though women might not initially choose that course, Connecticut’s birth rate simply declined to zero.

Do you think the state would have no interest in legislating to prevent that result if the legislature chose to do so?

Edmund C. Walsh:

Legislating to prevent —

William H. Rehnquist:

Fall of the birth rate to zero?

Edmund C. Walsh:

I believe that they would have an interest, yes Your Honor.

That would be for the legislature to determine of course I think, but I think there would be certainly a state interest to be debated in the legislature.

Warren E. Burger:

I suppose within that broad reach that you argue, also the state could be like the legislature, could say we will pay for cosmetic surgery in order to make our people more beautiful if they wanted to.

You can respond to that after lunch at 1 o’clock.

Edmund C. Walsh:

Thank you.

Warren E. Burger:

You may continue Mr. Walsh.

Edmund C. Walsh:

Thank you.

Mr. Chief Justice and may it please the Court.

As we were saying before luncheon, it’s the state’s contention that there is no invidious discrimination on the basis of its classification of necessary versus unnecessary medical expenses.

Therefore, there is no denial of equal protection.

I believe as Mr. Justice Stewart in a separate opinion in San Antonio versus Rodriguez summarized that purpose of the Equal Protection Clause was to measure the validity of the classifications made by the states.

This classification withstands that validity we believe.

Of course, the fact that there is no invidious discrimination is not all.

The state must of course prove that Connecticut’s action is not a mere pretext or a subterfuge or as the counsel in the previous case stated a smokescreen for the state to discriminate against abortion.

There is no evidence in the record to support such a charge.

The District Court rejected Connecticut’s asserted purpose of preserving its physical integrity out of hand and then it attribute — thereby attributed to the state of Connecticut an imputative reason, if you call it a unarticulated reason for avoiding the expenditure of public funds for purpose, the state found morally objectionable.

There was nothing in the record to support that that was imputative to the state despite the fact that Connecticut’s program included payment for no other medical service which was not necessary for the patient’s health, despite the fact that other medical services which were medically necessary, some were excluded because of their prohibitive cost.

And another factor is that the very day after this decision was announced December 31, 1975, the very next day, Connecticut was forced to implement cut backs in its Medicaid program of medically necessary services because of its physical crisis.

As it turned out, that was in preliminary enjoined about two weeks later and that is the status of that matter now.

The state has not pursued that.

The physical picture has brightened somewhat.

Edmund C. Walsh:

So all of these factors attest to the legitimacy of the classification made by Connecticut’s program and when this was considered in addition to the fact that the medical judgment of medical necessity is what solely to the attending physician of the plaintiff’s own choice and the further fact as indicated in the answers to the interrogatories that prior to the single-judge District Court’s entry of the first injunction, some 1,410 abortions were performed under the state’s program in an eleven-and-a-half month period.

So, we feel that the imputation of the unarticulated morally objectionable purpose was unfounded and it was —

Potter Stewart:

Do you think it would be constitutionally impermissible for part of the motivation of the state of Connecticut in this case to be its moral objection?

Edmund C. Walsh:

I think, Your Honor that as long as the Court is satisfied that the state has a valid purpose and that its primary motive is not to see or subterfuge that the state — that the Court should then uphold the regulation because otherwise it will get into an extremely nebulous area of trying to ascertain subjective intentions of the legislature in this case.

Potter Stewart:

Well, let’s assume that we — that all those palace (ph) of proof had been surmounted and that it were established that at least part of the purpose of Connecticut in denying public funds for abortion on demand or whatever you wish to call it were moral, would that make Connecticut’s action invalid in your view?

You concede it would —

Edmund C. Walsh:

I believe it would not.

I believe it would not, Your Honor unless the Court established that was the overriding purpose.

I believe the Chief Justice in a dissent in the Eisenstadt versus Baird in which this Court has discredited Massachusetts’ reasons for not permitting sale of contraceptives, the Chief Justice said that in the absence of clear and convincing proof as to motivation, then the Court should not rule and I think that that is what the situation in this case.

Potter Stewart:

Well I’m — my question assumes that there has been clear and convincing proof and that it is shown — has been shown that the part of Connecticut’s reason for doing this is it’s moral objection to abortion on demand.

Do you concede that that would be constitutionally impermissible [Voice Overlap].

Edmund C. Walsh:

No Your Honor because Your Honor I said partly reason and I say if it’s partly if it’s a secondary reason because after all, all legislatures and executives for that matter have their private views on abortion and that does not mean that their private views are necessarily implanted or — it’s too very difficult to determine what percentage of their motivation is a factor in influencing their decision.

Potter Stewart:

But you do concede that if it were the sole reason, it would be constitutionally impermissible?

Edmund C. Walsh:

I think if their where the sole reason, Your Honor that would certainly a very terrible thing.

I believe there is an article in 79 Neil Longer by professor Ely who says however that his test is as long as the state has the power to do it, then the motivation should not be the factor because if the succeeding administration then has a different view why should not the classification stand?

Potter Stewart:

It carries out the same program, but for quite a different reason?

Edmund C. Walsh:

That’s right Your Honor.

William H. Rehnquist:

What would be the constitutional basis in your view for saying that if the Connecticut statute was the primary reason for passing, as Justice Stewart’s question, was the moral objection to abortion?

Why would that make it constitutionally invalid if there isn’t any other constitutional objection to it?

Edmund C. Walsh:

Of course when you say Connecticut, that’s of course some three million citizens and I think if in fact the court is convinced that there is a valid physical purpose —

William H. Rehnquist:

But we’re assuming there is no valid physical purpose that the State of Connecticut in it’s legislature and a legislative history of a Bill says we will go as far as we have to under the Supreme Court’s decision and under the constitution and we will not criminally punish any doctor who provides an abortion, but we morally object to abortions and we will not go any further than the Supreme Court requires us to go and we think this is permissible.

We are going to limit abortion in every way that we constitutionally can?

Edmund C. Walsh:

If I understand Your Honor’s question.

If you say it’s permissible, that’s the answer to the question.

However, if the sole motivation of the state leaders is to impose their own views on the populous, that is not —

William H. Rehnquist:

Isn’t that the motivation of every single legislative Act that’s ever passed by a legislature to impose the views of the legislature on the populous?

Potter Stewart:

Or presumably representing that majority to populous when it does so?

Edmund C. Walsh:

Yes when it represents the majority except that there is a certain constitutional protections against the theority of the majority which this Court has often fronted to —

Potter Stewart:

Or if you can analogize this I suppose to a jury trial.

Now, there is a constitutional right that everybody, every criminal defendant has to a jury trial.

Potter Stewart:

There is also a constitutional right not to have a jury trial.

I suppose this Court is held as a constitutional right if a woman to have an abortion and there is also by presume a constitutional right for her to have a child.

But a state can certainly take the view that it would absolutely disrupt its criminal justice system if everybody had a jury trial, just as couldn’t state legitimately take the view that it would disrupt its — the public policy, the welfare of a state if nobody ever had a child, if every pregnant woman had an abortion?

Edmund C. Walsh:

Oh, I think yes.

That would be a legitimate purpose because of the state then would clearly have an obligation I think to assure that it has a sufficient number of citizens coming up so to speak to [Voice Overlap].

Potter Stewart:

And then the legislature could take that moral view, could it not legitimately?

Edmund C. Walsh:

I believe it could, Your Honor, yes.

Warren E. Burger:

Didn’t this Court in Miller against California and the related cases say affirmatively by a majority of the Court that the state has a responsibility, an affirmative responsibility for the moral environment and atmosphere of a community within the state?

Edmund C. Walsh:

Well, that’s correct Your Honor.

Warren E. Burger:

Doesn’t that really answer Justice Rehnquist’s question?

Edmund C. Walsh:

I believe it would, Your Honor.

(Inaudible)

Edmund C. Walsh:

Well I had not — that was not my prime motivation.

I was maybe mistakenly trying to be neutral on the question of the morality of this case because that is a very inflammatory issue.

Warren E. Burger:

And is not necessarily here?

Edmund C. Walsh:

That is correct, Your Honor, it’s not here, I don’t believe.

Potter Stewart:

Well except that the District Court did find that that was one of motivating reasons for the Connecticut did what it did, so it’s here isn’t it?

Edmund C. Walsh:

It is here, Your Honor.

Potter Stewart:

Unless we say that we are just wrong factually?

Warren E. Burger:

What evidence did the distinguished district judge cite for this conclusion?

Edmund C. Walsh:

The District Court cited no evidence whatever because —

Warren E. Burger:

[Voice Overlap] opinion of the matter.

Edmund C. Walsh:

The only evidence, if you could call it that Your Honor, was a newspaper clipping attached to the plaintiff’s memorandum in the court for motion for summary judgment purporting to convey the views of the Governor of the State of Connecticut on abortion and we made a motion to strike that that was inadmissible evidence.

Potter Stewart:

Was your motion granted?

Edmund C. Walsh:

The Motion was never ruled on, although the court said it would rule on it.

So in summary Your Honor, we believe that what is involved here is not an interference by the state to a woman’s right to an abortion.

The issue is rather — the right to receive public welfare benefits and in that case, we believe this case should be controlled by the test annunciated in Dandridge versus Williams.

I’d like to reserve anytime I have left, Your Honor.

Warren E. Burger:

I think you consumed your time Mr. Walsh.

Mrs. Katz, you may lower the electron tube mic the other way, that’s right.

Lucy V. Katz:

Mr. Chief Justice and may it please this Court.

I represent the plaintiffs, appellees in this action.

This argument is being held today because the State of Connecticut denies Medicaid assistance to women who choose to terminate their pregnancies by abortion, while at the same time, it provides payment for any and all forms of obstetrical care involved in the birth of a child.

We have a basic factual dispute with the state’s assertion that this is simply a requirement that is part and parcel of the entire Medicaid program and throughout my argument I will refer to the reasons for that dispute.

We also disagree with his assertion that Connecticut has a more liberal policy than this Court heard about in Pennsylvania.

There is no requirement in Pennsylvania that I know about that a doctor must especially certify that an abortion is necessary for the health of the patient nor is there a requirement in that state that the state give prior authorization for every abortion under Medicaid.

The state in Connecticut is denying this assistance in a way which is directly contrary to this Court’s recognition that a woman has a fundamental right with her physician to decide whether or not to bear a child.

And as I would show, the regulation’s main thrust is to impose upon poor women, the moral and religious opinions of various state officials.

Connecticut has asserted no state interest whatsoever which justifies this manipulation of a public benefit program in favor of child birth and against abortion.

I would like to preface my replies to the Attorney General by invoking the framework used by this Court in considering the landmark case of Roe against Wade.

That framework.

Now that there are two facets to any consideration of state action regarding abortion; one is our awareness of the very deep moral and religious and philosophical objections which many persons hold regarding abortion.

The other facet, however, is that in resolving these questions, we must be guided by the constitution and we must make an effort to free ourselves of the emotions and prejudices of the past and the state in particular is obligated to act free of such prejudices.

Potter Stewart:

Is this an equal protection case in your view?

Lucy V. Katz:

I see this case is rather heavily a due process case because of the fundamental right asserted and as well an equal protection case and the class under the equal protection standard is made up of persons who are asserting their fundamental right to make the abortion choice.

John Paul Stevens:

If it’s a due process case, do we have to pay any attention to the question whether benefits are provided in the event that the child is born, apparently?

Would your case, in a due process term, would your case be just as strong, I’m incline to think it would, even if the state had no welfare program at all?

Lucy V. Katz:

If I could talk to that, I thought your first question was that if it did not pay for birth at all, yes.

John Paul Stevens:

Right, that was limited to that.

Lucy V. Katz:

Then I believe it — if the state provided no benefits for child or whatsoever, then the case was certainly be very different in due process terms but —

John Paul Stevens:

Why would it be different in due process terms?

I can see why it would be different in equal protection terms, but in due process terms, it would seem to me it would be precisely the same case?

Lucy V. Katz:

That may well be a due process case and in fact, I conceive of the right to welfare benefits for maternity care as a due process question.

Potter Stewart:

You have, everybody has a right to publish a free press, but that doesn’t impose an obligation on the state to subsidize your free press, does it?

Lucy V. Katz:

Absolutely not and we are not asserting here that the state has an obligation to pay for an abortion for indigent women.

Well we — just as in Shapiro versus Thompson where the right to travel was the question, no one suggested that the state had to in fact buy a bus ticket for an indigent person.

We are relying on the fact that when the state provides a comprehensive program for obstetrical care, then it must provide for abortion.

John Paul Stevens:

Isn’t that an equal protection argument though?

Lucy V. Katz:

I think it’s both Your Honor and —

John Paul Stevens:

Would you state your due process argument in sort of simplified form for me?

Lucy V. Katz:

The right to choose determinative pregnancy is the right of personal privacy and personal liberty which is incorporating the concept of liberty in the Fourteenth Amendment which may not be deprived without due process of law.

By the same token, a classification cannot be created which imposes a deprivation of that sort of liberty and the questions under the equal protection test then becomes —

John Paul Stevens:

Well, you are going in equal protection of course.

I just — I’d like to think that the two different arguments through separately because I think they may — one maybe stronger than the other.

In the case involving this teaching of German in schools was held to be a denial of due process to deprive the parents of the right to send children to school where German was taught, would it be a denial of due process if the — could the parents have insisted that the schools provide the teaching of German in public schools?

Lucy V. Katz:

I don’t believe it could have.

John Paul Stevens:

Then how was that now — does that refute your due process argument?

Thurgood Marshall:

The due process —

Lucy V. Katz:

I don’t believe it does.

Thurgood Marshall:

— is distinct and not stop you from getting an abortion.

Well, the state is not stopping it?

Lucy V. Katz:

The due process argument I make is not — is a little bit different.

I’m making the argument under due process the state cannot condition the choice towards child birth, that it cannot intrude into the decision making process and that is what Connecticut is doing.

Whether the state has to provide medical services for pregnancy may include due process question about just what the state is obligated to provide under system of medical benefits to the poor, but I believe that’s a different question which would not be resolved by the Court’s decision in this case.

Thurgood Marshall:

What would happen if the state says we will pay for natural birth, but not a cesarean, would that be due process?

Lucy V. Katz:

Yes, it would.

Thurgood Marshall:

At best it would be equal protection, wouldn’t it?

Lucy V. Katz:

No, Your Honor.

I believe that it might be a due process argument in terms of the kind of judgment the state is making in this protective area.

John Paul Stevens:

Would it be a denial of either constitutional right for the state to subsidize an educational program urging women to bear children and to make the choice one way rather than the other?

Lucy V. Katz:

It might and that would raise different kinds of questions.

John Paul Stevens:

Well, how would they be different?

Lucy V. Katz:

Well, the state’s interest would be different.

The kind of program we’re discussing would be different and the kinds of impact upon the women’s choice would be different.

Potter Stewart:

Well, the motivation of the state would be precisely the same as what you say the motivation of the state was here to exercise the influence of its moral views?

Lucy V. Katz:

What the state does all the time in the educational process is certainly to assert its moral views.

What I’m saying is this is such a direct and immediate impingement that it is evoked somewhat different considerations.

Potter Stewart:

Well, take my jury trial case.

The person we both agree has an absolute constitutional right to a trial jury in the criminal case in a state or federal court.

And yet isn’t it true that — the defenders are convicted is charged with the costs of the jury whereas if he’d waved the jury trial, it would not have been charged with the costs of the judges’ time?

Lucy V. Katz:

That’s true Mr. —

Potter Stewart:

Wasn’t that same point as we have here?

Lucy V. Katz:

I don’t believe it’s exactly the same Mr. Justice Stewart because the —

Potter Stewart:

Well, not exactly the same being tried in the criminal case, but exactly the same as having an abortion, but isn’t that constitutionally –?

Lucy V. Katz:

Well as I see it — the opportunity for the jury trial is absolutely afforded to the defendant and —

Potter Stewart:

It is not to be mean but you got to have to pay for it by himself in many states if he is convicted he is to work it off in prison?

Lucy V. Katz:

That’s correct.

Potter Stewart:

Whereas if he exercises his equal right not to have a jury trial.

He doesn’t have to pay for the cost of the trier of the facts.

Lucy V. Katz:

Yes — in the case, we are discussing there is virtually and absolute prohibition on the opportunity of the woman to have the service and there is similar prohibition.

Potter Stewart:

Only an indigent prohibition, isn’t it?

Lucy V. Katz:

Yes.

Mr. Justice Stewart, only indigent woman.

But in fact as this Court has recognized in its remarks in the Singleton versus Wulff case, in this context that impact on an indigent woman is virtually identical to the criminal penalty at issue and by the same token Mr. Justice Stewart, a woman receiving pubic assistance in the State of Connecticut has an obligation in some cases to repay that assistance, but I don’t think that justifies denial of assistance to one who asserts a substantial federal right.

Potter Stewart:

But is — you do not suggest this in part my brother Marshall’s question is clear that any woman in Connecticut does continues to have a constitutional right to have an abortion.

If she would be rich or poor, the question is if she may or may not be able to find a doctor who’s willing to do that grant if she can pay his bill?

Lucy V. Katz:

Yes sir.

I would like to make it clear just as at start that there has been no question that a class of abortions which are clearly within the protection of Roe against Wade is available to Medicaid eligible women and that this includes a large majority of abortions which are in fact chosen for economic reasons or for social or educational reasons or for other family demands.

And that under the prior authorization requirement, the physician must state that the abortion is medically necessary for the patient’s health and he must state the specific reasons for the medical necessity.

And he must demonstrate that the patient has consented in advance.

Byron R. White:

Well is that a separate question here?

Lucy V. Katz:

Yes, it is a separate question Mr. Justice White.

Byron R. White:

Suppose the jurisdictional statement didn’t lay that in two separate way as to whether independently the necessity to certify in detail constitutionally?

Lucy V. Katz:

I believe the question — the prior authorization and certification necessity is part and parcel of — is the medical necessity requirement because that requirement is not imposed in any other way.

This is the difference I believe between Pennsylvania and Connecticut’s policy.

This is not something that the department has stated that it was in its mind but the department has directly asked the physician to certify in advance of treatment.

Thurgood Marshall:

Mrs. Katz, could Connecticut say that all medical procedures require a certificate of the same type?

Lucy V. Katz:

Absolutely not Mr. Justice Marshall.

This is the only service —

Thurgood Marshall:

Why?

Thurgood Marshall:

I said could Connecticut do that?

Lucy V. Katz:

Could it?

Perhaps it could.

Thurgood Marshall:

And would you have any complaint?

Lucy V. Katz:

If every service had to have a certificate of medical necessity?

Thurgood Marshall:

Yes.

Lucy V. Katz:

Any statement that an abortion must be medically necessary for the health of the patient I would have a complaint in that.

Thurgood Marshall:

If they said that any medical procedure requiring payment must first have the same type of certificate, would that be okay?

Lucy V. Katz:

I don’t believe it would because —

Thurgood Marshall:

Why not?

Lucy V. Katz:

Because it is impossible to conceive of an unnecessary abortion unless the woman is not pregnant.

If the standard were applied equally, truly equally to all forms of pregnancy care, that would be acceptable.

Thurgood Marshall:

You didn’t say pregnancy?

Lucy V. Katz:

I understand that.

Thurgood Marshall:

I said appendicitis, ingrown in toenails, etcetera.

You have to file a certificate say that this is medically necessary before you get paid?

Lucy V. Katz:

The reason I would object to that is that any suggestion as this record well shows that an abortion must be medically necessary, works to me to be exclude abortions which are necessary for the end desired by the patient, the doctor but which may not.

Thurgood Marshall:

Then answer is that the state could not do that?

Lucy V. Katz:

No.

That is my answer.

Thurgood Marshall:

If it good for everything, but abortion.

Lucy V. Katz:

The state could require that every service be necessary.

Thurgood Marshall:

Other than abortion.

Lucy V. Katz:

I’m sorry Mr. Justice Marshall.

The state could require that every service including abortion be necessary.

It is the — that is required under Dolgin’s Bolton.

I think we have to meet that to be acceptable.

Thurgood Marshall:

I thought of question I asked you.

Lucy V. Katz:

I differentiate between medically necessary and necessary.

Thurgood Marshall:

So if it is necessary, that would be alright?

Warren E. Burger:

In (Inaudible) judgment then if it isn’t the judgment of the doctors.

Lucy V. Katz:

If the service had to be necessary, only that where necessary in the judgment of the doctor that would be valid.

Warren E. Burger:

Oh, you have me confused.

Thurgood Marshall:

Then you now argue the equal protection which what I thought you arguing all along.[Laughter]

Lucy V. Katz:

We are arguing — I think we are arguing both Mr. Justice Marshall.

The — if —

Thurgood Marshall:

(Inaudible)

Lucy V. Katz:

Certainly.

We have a situation where pregnancy is a condition which virtually every court has held to require some form of medical care.

If we are truly to lay aside the emotions of the past, then abortion and full term delivery become equally necessary depending on the choice of the women or looked at another way either service is unnecessary because the other could have been chosen.

Connecticut in fact does not limit obstetrical care to necessary services in this sense because in many obstetrical cases, there are choices which maybe harmful to the health of the patient, but Connecticut will totally support the decision to continue the pregnancy and bear the child even if that continuation becomes in fact life threatening.

In other cases, the pregnancy may not be a threat to the health, but they are maybe for example a danger of miscarriage yet Connecticut supports all services necessary to bring about birth and that is true even though had the women naturally miscarried, there would be no danger to her health.

It is the abortion choice here that is eliminated from coverage.

Though as with all the above procedures, it is clearly a medical procedure necessary to the treatment of the condition of the patient.

Moreover statements to the contrary not withstanding on its face, the regulation requires review of the particular abortion by persons within the department of social services.

It is said that they must review the application and make a decision and this becomes a veto of the abortion decision in many cases which this Court most recently affirmed its objections to.

William H. Rehnquist:

Mrs. Katz what if your client were at the other end of spectrum here so to speak?

She where in a state which had under it’s Medicaid policy said we will — we are very concerned about too much population.

So, we will fund abortions, but not child birth.

We realize you can’t — we won’t interfere with child birth.

We simply won’t fund them.

Your client wanted to have a full term delivery and not an abortion.

Do you think your constitutional argument is the state program was invalid and would stand on the same footing as the one you are now making?

Lucy V. Katz:

Yes Mr. Justice Rehnquist, I believe it would in that case.

Abortion I might to stress again is the only service subject to the statement of medical necessity and I base that on answers to our interrogatories which were provided by the defendants.

It is the only service covered by Medicaid which requires that consent be demonstrated in advance.

John Paul Stevens:

Mrs. Katz, let me take Mr. Justice Rehnquist’s question one step further.

Assume a state concerned with over population were to adapt the statute that provided for everyone, the poor as well — and the rich is well as the poor that the price of an abortion will be paid plus a $50.00 bonus.

Would that be constitutional?

The reason being they want to control a population.

Lucy V. Katz:

I think that there would be definite constitutional objections to that sort of program.

That is not to say that there are no steps the state can take which encourage or discourage population growth or population planning.

John Paul Stevens:

I assume in my example that they continue to pay for child birth for the indigent, but they just try to tip the scales in favor of abortion in the desire to control population.

You say there’d be a constitutional objection and if so what is the constitutional objection?

Lucy V. Katz:

That would again be a program which was weighting the choice.

John Paul Stevens:

And you say the state has no interest whatsoever, no legitimate interest in the rate of population within its borders?

Lucy V. Katz:

It may and that may —

John Paul Stevens:

Well then if it has an interest, why can’t it tip the scales one way or another or seek to?

Lucy V. Katz:

Because that interest is not rise to the level of justification for an infringement in this area under this Court’s prior decisions.

John Paul Stevens:

Which prior decisions say you cannot pay a bonus for one choice rather than another?

The prior decision deals with preventing the choice.

That’s quite different it seems to me from urging one choice rather another and being willing to pay a bonus for?

Lucy V. Katz:

The prior decisions Roe and Bolton do deal with preventing the choice, but the decisions on pubic benefit programs that consider this sort of interference go directly to weighting the choice and there maybe a different balancing process when the state asserts and demonstrates an interest in limiting population or increasing population.

That is the way that it is asserted is different from the issues that are before the Court at this time.

John Paul Stevens:

What I’m trying to identify in my own mind is whether it’s critical to your case that we treat this as something like a deprivation as oppose to a subsidy.

Is it critical for you to regard this as something that deters the women from making one choice rather than the other?

Lucy V. Katz:

We don’t argue that we have to prove that the woman was totally prohibited from making one choice rather than the other under Maricopa County, under Shapiro v. Thompson in past cases, a penalty is sufficient.

I think that —

John Paul Stevens:

So there’s really no penalty here?

There is no penalty here.

There is a loss of an opportunity to get a benefit if you made the other choice and not quite the same as a penalty?

Lucy V. Katz:

Except that under Shapiro versus Thompson, it was specifically stated that that is the same as a penalty and under memorial hospital it was stated that that is the same as a penalty.

That it’s enough that there is an impingement as this Court said in Singleton, an interdiction of the choice of the abortion.

Potter Stewart:

Economic disincentive?

Lucy V. Katz:

Yes Mr. Justice Stewart.

The Court has determined although that a woman has a right with her physician to choose to terminate her pregnancy and this is a component of her right to personal privacy and it is a fundamental personal right which is implicit in the concept of ordered liberty and which extents to matters relating to marriage, the family, procreation, child rearing and to the decision whether or not to bear a child.

What we are arguing is that whenever the state denies an important government benefit to a person who asserts such a fundamental right, it is violating the Fourteenth Amendment.

The fundamental right is may be operative factor in the determination of eligibility for this benefit.

And as a consequence, there as I have stated, there is a substantial penalty imposed upon these plaintiffs.

The Court I should know in both Shapiro and in Memorial Hospital took into account the nature of the benefit we are discussing and the fact that this is the only way indigent women can get medical care.

Lucy V. Katz:

Well, there is no right to subsidies of medical care for anyone in this country.

That does not mean the Court must close its eyes to the fact that this is a crucial benefit to recipients thereof.

Byron R. White:

Can I ask you Mrs. Katz?

Suppose in the case that the like before we were to construe the federal statute as the Second Circuit did in this case.

Lucy V. Katz:

It’s optional.

Byron R. White:

What?

Lucy V. Katz:

As optional?

Byron R. White:

Yes.

Then, I take it then that Connecticut if it wanted to could pay for elective abortion and it wouldn’t cost them any money?

Lucy V. Katz:

That is correct.

It would cost them their share.

Byron R. White:

What.

Lucy V. Katz:

It would still cost them their share of the federal program.

Byron R. White:

How much?

Lucy V. Katz:

50%.

Byron R. White:

That’s 50% and so but their physical interest then is limited to that 50%?

Lucy V. Katz:

Yes.

Yes sir.

Byron R. White:

And as compared with carrying the birth to term which they pay for?

Lucy V. Katz:

No — yes, that’s correct.

Potter Stewart:

The matching fund, it’s a 50% matching program all away across the board isn’t it?

Lucy V. Katz:

Yes sir.

It’s the federal government for all Medicaid services.

Potter Stewart:

It’s all 50%.

Lucy V. Katz:

In Connecticut, it’s all 50%.

There are certain provisions for mainly stating the cost.

Potter Stewart:

Family planning is 80% or 90%?

Lucy V. Katz:

Family planning is 90%.

Administration, I believe is 75%, I could be incorrect.

The basic physician service is 50% for all cases.

Lucy V. Katz:

The state when it is creating such a burden or penalty upon the exercise of a fundamental right, we argue is obligated to show a compelling interest for the way it does that and this Court has consistently applied this test to cases in the abortion area and in addition, the state must show that its regulation is narrowly drawn to accomplish that purpose.

Connecticut as the District Court found has shown no interest which can be termed compelling or which even meet the more limited rational basis test.

Connecticut in fact has never been very consistent in demonstrating exactly what its interest is when the litigation first began.

Connecticut asserted that the only reason it limited the payments for these abortions was because the Social Security Act compelled it to do so and that it would become ineligible for its matching funds if it paid for these services.

The Second Circuit Court of Appeals indicated that that was not so.

The Connecticut have the option under the Federal Statute to provide these services and it would be reimbursed to them and the court in effect urged Connecticut therefore to drop the regulation and to pay for the services for which plaintiffs were asking.

Connecticut chose instead, however, to continue its ban on payments for abortions and then asserted that it had a right to limit its program to necessary services and that it had a strong fiscal interest.

The fiscal interest as noted by the District Court is really none existent in that case because it was in the record in fact that abortion is only a fraction as costly as normal child birth.

And that it is many times less costly than any complication of child birth such as the cesarean section.

Moreover by definition, the newborn child with its mother will be eligible for aid to families with dependent children which at the time of this litigation for a family consisting of an adult and a child was $209.00 per month at a minimum, not including eligibility for other services which may have been available.

John Paul Stevens:

Mrs. Katz, I’m not sure that completely meets your opponent’s argument.

As I understand him, he’s saying that if we eliminate the line between necessary and unnecessary, you’ll have to have a whole host of additional services which will unfold cost over and above just the abortion cost and that that’s what you have to measure on both sides of the scale?

Lucy V. Katz:

Yes Mr. Justice Stevens, but that is logically not a persuasive argument because we are — Connecticut would not in fact have to pay for a whole host of services.

We are arguing that abortion is a necessary service.

John Paul Stevens:

Well, the District Court, that they talked about cosmetic surgery, the District Court said well, that’s different because it is not a constitutionally protected right, but I just wonder if that’s valid.

Do you suppose the state could constitutionally pass a statute that said nobody shall have cosmetic surgery?

Lucy V. Katz:

Nobody in the entire state?

John Paul Stevens:

Correct.

Lucy V. Katz:

Perhaps not but the —

John Paul Stevens:

Well then, do you have a constitutional right to cosmetic surgery?

Lucy V. Katz:

But it would not be a fundamental right in this area of privacy.

Potter Stewart:

There nothing to be more fundamental than a constitutional right, constitutionally guaranteed right which my brother Stevens is hypothesizing?

Lucy V. Katz:

It is simply —

John Paul Stevens:

Suppose a person seriously disfigured is the result of an accident, wanted to have plastic surgery to correct his appearance and the state said no, we have a statute that prohibits that.

You would say that’s not constitutionally protected right?

Lucy V. Katz:

It maybe constitutionally protected.

John Paul Stevens:

But not as well protected as the right to make the abortion you say?

Lucy V. Katz:

Well I think that maybe correct and that may also be necessary service and in fact is paid for by the state of Connecticut in those circumstances.

Byron R. White:

But if the — if the Second Circuit is correct in the way it construes the statute, Connecticut could pick and choose among the “necessary” services that (Inaudible), is that right?

Lucy V. Katz:

That is right except that there have to be some limitations on the constitutionality of its choices.

Lucy V. Katz:

It could pick and choose among a variety of services.

Byron R. White:

Well it may be so, that maybe so, but you would say that it would have to choose to plan the abortions because of the impact that they can (Inaudible)

Lucy V. Katz:

Yes sir, I would.

Byron R. White:

You say then the statute would permit that?

Because the statute would permit it, it wouldn’t mean that it would require therefore to pay for cosmetic surgery?

Lucy V. Katz:

Yes sir.

Potter Stewart:

But it say would it be equally wrong or less unconstitutional in your hierarchy of constitutional rights for a state to say we’ll pay for appendicitis operations, but not for gallstone operations?

Lucy V. Katz:

Within the Medicaid program?

Potter Stewart:

Yes.

Lucy V. Katz:

It would be less wrong.

Potter Stewart:

Less what?

Lucy V. Katz:

Wrong.

I said it would be equally wrong, yes sir.

Potter Stewart:

Why?

Lucy V. Katz:

Because there is — this country does not annunciate a right to free medical care for all forms of services.

William H. Rehnquist:

Well, we annunciated a right to it for any forms of surgery?

Lucy V. Katz:

I believe that once a woman is pregnant, there is a right which comes into play which does not come into play for a person whose needing that care.

Potter Stewart:

When is that ever been annunciated, a right to be subsidized?

Lucy V. Katz:

No.

A right to be free from an imposition on the choice.

Whereas there are many forms of medical care which involve choices, both by the patient and by the physician and there is no right, absolute right to make one choice or the other.

William H. Rehnquist:

Well, but you’re saying then that the state has to have a program of free medical services for indigents as a matter of constitutional law because there is a choice.

You know, if I got a bad stomach ache, I got a choice of going to the doctor and not going to the doctor.

And if I don’t have any money, I don’t have a choice of going to the doctor unless there is some assistance program available to me.

Lucy V. Katz:

I Believe Mr. Justice Rehnquist that I was saying the opposite that there is no right to free medical care to the indigent.

Connecticut could perhaps have no program of Medicaid and Connecticut could perhaps limit its program to life threatening procedures, but it hasn’t done that.

It has a very comprehensive program which pays for many services which by this definition are not for the necessary and in the context in to that program, there cannot be a weighting of the choice of the pregnant woman one way or the other.

Warren E. Burger:

I think your time is up now Mrs. Katz.

Thank you.

Lucy V. Katz:

Thank you very much.

Warren E. Burger:

Your time is consumed also counsel.

The case is submitted.